The Dark Side a law treatise on judging - with memoir by Caroline Douglas, J.D.

THE DARK SIDE a law treatise on judging — with memoir

by Caroline Douglas, J.D.

THE DARK SIDE a law treatise on judging — with memoir

by Caroline Douglas, J.D.

INTRO

Other writing by Caroline Douglas, J.D. Washington State Family Law Practice, (Jurisdiction) Lexis Nexis, Reed Elesievre, 2014-15 Sneaky Judge Tricks ©, A Guerrilla Handbook for Going to Court, 2009 New Hampshire Family Practice, Vol I & II, New Hampshire Practice Series, 2nd Ed. Equity, Butterworth, Thompson, Lexis Nexis, 1989-1999, with annual supplements

Copyright © 2015, 2009 by Caroline George Douglas First published by National Social Science Research Institute in 2016 All rights reserved. Printed in the United States of America. No part of this book may be reproduced in any manner whatsoever with written permission except in the case of brief quotation embodied in critical articles and reviews. For information contact Little Oak Publishing, 2018 West Earll Drive, Phoenix, Arizona 85015, questions and comments, email contact, carolinegdouglas@gmail.com SAN # 854-0977 Design and layout by Papier Productions Set in 10 point Source Sans Pro by Little Oak Publishing Acknowledgements Special thanks to Professor Bennet Gershman, Pace Law School for excerpts from Prosecutorial Misconduct. Also Attorney Linda Kennedy for two chapters in the Appendix. Special thanks to Father Richard Rohr, and the Center for Action and Contemplation, Albuquerque, New Mexico for generous permissions throughout. Also photography of Caroline Douglas by Gaeton Cotton for the London Time cover Special thanks to the Frank Eaton Historic Home (Oklahoma Territorial Plaza Trust) permission to reprint the glass plate photo of Pistol Pete, aka Frank Boardman Eaton, December 26, 1860. Special thanks to the C.S. Lewis Foundation and Institute for the Apologist excerpt. A CIP catalogue record for this book is available from the Library of Congress: CIP number 2016946691. ISBN-10 0-9796964-1-0 ISBN-13 978-0-9796964-3-5

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TABLE OF CONTENTS DEDICATION........................................................................................................... xxvi AUTHOR’S ACKNOWLEDGMENT................................................................................ xxvii AUTHOR’S NOTE — MY GOAL................................................................................... xxviii CHAPTER ONE

The Culture of Modern Judges....................................................................... 1

RELATIVE DEVELOPMENTS IN THE AMERICAN LEGAL SYSTEM............................................ 1 §1 THE COURT IS LIKE A COUNTRY CLUB......................................................................... 2 §2 COUNTRY CLUB RULES............................................................................................. 5 §3 BEGINNING LAWYER................................................................................................ 6 §4 MEMBERSHIP IN A BAR............................................................................................. 7 A Constitutional Fiat......................................................................................... 8 §5 THE UNAUTHORIZED PRACTICE OF LAW COMMITTEE................................................... 8 National Birth of Unification............................................................................. 11 Court Rules are limits on a judge’s discretion.. ........................................................ 12 Clients as Legal Consumers. . ............................................................................. 13 §6 JUDGES ARE A SECRET ELITE.................................................................................. 15 Secrecy. . ..................................................................................................... 16 Who would challenge a judge?. . ......................................................................... 16 As an idealistic new attorney in 1989, I had no idea about the court country club. . . ........... 17 Judges’ right to secrecy?.................................................................................. 18 Secrecy in everything. . .................................................................................... 18 The difference between secrecy in case handling and judicial deliberation. . .................... 19 Assumptions about deliberation........................................................................ 19 One signal is to see if the judge tries early on the case to issue orders that enhance secrecy. .19 A yellowed newspaper hobby ........................................................................... 19 §7 CALVINIST ROOTS.................................................................................................. 20 §8 FIEFDOMS OF POWER & TRAPPINGS OF AUTHORITY. . ................................................. 22 The Feudal System. . ....................................................................................... 22 Why is this history pertinent to our modern crisis with judges?.................................... 22 Let’s look at the implications of Architecture and Design — ........................................ 23 Visually, physically and psychologically, a loyal staff is the judge’s first line of defense. .. ..... 23 Now, what about The Dress?............................................................................. 23 What about the elaborate Language and Mannerisms?............................................. 23 Civility........................................................................................................ 24 Coercion..................................................................................................... 24 §9 SOCIAL CONDITIONS IN 1955 AND JUDICIAL CONFORMITY........................................... 25 §10 DECONSTRUCTION OF ONE STATE COURT’S JUDICIAL POWER GRAB OVER LAWYERS..... 27 Group Pressure in a Closed Society..................................................................... 27 The new court system..................................................................................... 28 Private laws................................................................................................. 28 I began and ended my lawyer career with questions itching in my brain about the legality of the state unified bar organization. ..................................... 29

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The Constitutionality of the Bar?........................................................................ 29 The judges co-opted the legislature’s power to regulate attorneys................................ 30

HOMEWORK ONE–AN ANALYSIS OF LEGITIMACY. . ........................................................... 31 Internal rules. . .............................................................................................. 36 The in-house economic and disciplinary systems.................................................... 36 §11 THE OL’BOY NETWORK......................................................................................... 37 Members. . ................................................................................................... 38 Ol’boys....................................................................................................... 38 Relationships that count.................................................................................. 39 Tracing the ol’boy network............................................................................... 40 I got your back ............................................................................................. 41 The pattern of little dog turf wars ....................................................................... 42 §12 WOMEN AS OL’BOYS............................................................................................. 43 Water Carriers (“WC”). . .................................................................................... 45 Woman on Woman. . ....................................................................................... 46 §13 THE EX-WIVES OF JUDGES CLUB............................................................................ 47 An Achilles Heel. . ........................................................................................... 48 §14 OTHER GENDER-BASED ISSUES............................................................................. 49 The Diva Syndrome........................................................................................ 49 Strong-willed women. . .................................................................................... 49 Good judges ................................................................................................ 51 §15 TRUST. . .............................................................................................................. 51 §16 SPECIAL TREATMENT........................................................................................... 53 Stipulation .................................................................................................. 54 Another Ex Wife Club example — the Thayer case.................................................... 54 “Treat me as ordinary”.................................................................................... 55 HOMEWORK TWO ..................................................................................................... 56 §17 COMPASSION...................................................................................................... 58 How does a quiet little favor for another judge hurt the process?. . ................................ 60 Setting the stage........................................................................................... 60 Timing the tricks.. .......................................................................................... 60 §18 THE COURT’S PRIVATIZATION OF MORALITY............................................................ 62 The question of what is good for society has radically changed in law. There are three primary reasons:...................................................................................................... 62 Reason 1. Moral relativism................................................................................ 62 Reason 2. Fear of religion................................................................................. 63 America is an experiment in democracy, in immigration, and in individual freedom. ......... 64 A Note on Muslim Sharia law............................................................................. 64

§19 DEFECTIVE BUILDING BLOCKS............................................................................... 68 CHAPTER TWO Bad Behavior and Ethics Tricks.................................................................... 79 Introduction: A Right to Excellence. . .................................................................... 79 INTRODUCTION: A RIGHT TO EXCELLENCE.................................................................... 80 Excellence by definition implies brilliance, distinction, quality, merit, superiority.............. 80 My goal is to collect public support to demand quantifiable excellence in judging............. 80

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§20 DRUNK, STONED, INCAPACITATED, ILL-TEMPERED, AND BURNED OUT........................ 81 Alcohol and Drug Abuse................................................................................... 81 Warranties needed ........................................................................................ 83 §21 SLEEPY, CONFUSED, AND AGED. . ............................................................................ 85 A Lack of Capacity ......................................................................................... 85 What’s the Constitution got to do with this kind of special appointment? ....................... 87 What do retired judges get paid?........................................................................ 88 Incompetence. . ............................................................................................. 89 Alzheimer’s and Senility. . ................................................................................. 89 Lack of Contemporary Skills ............................................................................. 90 Deaf and Hard of Hearing................................................................................. 90 There are a series of other judge disability conditions, not necessarily related to age, that afflict judges ability to work. They include —. . ........................................................ 92 Ill-Tempered and Burned Out............................................................................ 92 Bullying and Abuse of Authority......................................................................... 92 Grandiosity ................................................................................................. 92 Spousal and Child Abuse. . ................................................................................ 93 Burned Out.................................................................................................. 93 Personality studies. . ....................................................................................... 93 Caveat ....................................................................................................... 94

§22 SEX WITH A JUDGE. . ............................................................................................. 95 Other Judge Illusions ..................................................................................... 96 There are many variations —............................................................................. 97 Variation 1. Sex Between the Judge and An Attorney................................................ 97 Variation 2. Sex Between the Judge and a Criminal Defendant.. ................................... 97 Variation 3. Sex Between the Judge and Party........................................................ 98 Private Sex Acts of Judges................................................................................ 99 Variation 4. Adultery Between Judges: Is It Criminal Behavior or a Smoke Screen?.. ........... 99 Variation 5. Sex in the Courtroom During Trial...................................................... 100 §23 CRIMINAL ACTS OF JUDGES. . ............................................................................... Does it pay to haggle? . . ................................................................................. Reporting problems, delays and avoidance......................................................... Assault and Battery...................................................................................... Bribery . . ................................................................................................... The issue .................................................................................................. DWI (Drinking While Intoxicated)...................................................................... Hit and Run. . .............................................................................................. Driving with a Suspended License. . ................................................................... Stalking and Harassment............................................................................... Shoplifting. . ............................................................................................... Burglary. . .................................................................................................. Affidavit of a judge’s former wife. . ..................................................................... Theft........................................................................................................ Fraud....................................................................................................... Tax evasion................................................................................................ Money Laundering — For an Anonymous Client.................................................... Incest/Kiddie Porn....................................................................................... Improper Influence.. .....................................................................................

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100 101 102 102 102 103 104 104 104 104 104 105 105 105 105 105 105 106 107

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Catch me if you can...................................................................................... 107 Even after the judge was filmed by the FBI accepting bribes in hundreds of cases ........... 108 Corrupt Judges Paying Financial Restitution and Damages Personally? ....................... 109

§24 JUDGES WHO LIE............................................................................................... 110 Here’s my go-to Webster’s New International American Dictionary Unabridged definition: .110 But was it perjury?....................................................................................... 111 Prosecution of Judges. . ................................................................................. 111 Media Reporting.......................................................................................... 112 Civil Acts and Private Lawsuits......................................................................... 112 Initial factors to think about before suing a judge:................................................. 113 §25 BAD WORDS...................................................................................................... What constitutes bad verbal acts by a judge?....................................................... Racial remarks............................................................................................ Studies on racial bias.................................................................................... Studies on decision fatigue............................................................................. Sexual remarks........................................................................................... Feminist Hatred . . ........................................................................................ Rape victims had their lives and sexual histories put on trial, instead of the rapist. .. ........ Guns ....................................................................................................... Stun Cuff Danger......................................................................................... Contemporary Style Judicial Bullying and Verbal Abuse.......................................... The SLA turnip truck judge.. ............................................................................ The Paper and Ink Judicial Economy Insult and Threat........................................... Sophisticated Insults.................................................................................... Contemporary Racism. . ................................................................................. Defamation and Slander................................................................................ Rules for Judicial Conduct..............................................................................

113 113 114 116 117 117 117 118 120 120 121 121 122 125 125 125 126

§26 BAD ACTS.. ........................................................................................................ Reported acts of physical or violent abuse by judges.............................................. Arrest and Incarceration................................................................................ Unreasonable & Disrespectful Behavior of Litigants or Attorneys. . .............................. What is a judge to do if a litigant is disrespectful in court?........................................ Oprah. . ..................................................................................................... Tit for Tat?.................................................................................................

127 127 129 131 131 132 134

§27 CONTEMPT OF COURT — SOME PRELIMINARY IDEAS.............................................. 136 Contempt for money — a transfer of wealth ........................................................ 136 HOMEWORK THREE — OUT OF BOX THINKING ABOUT BAD CONTEMPT RULINGS............. 139 Example One — The Bonser Case(s) .................................................................. 143 Example two: My Ongoing Daily Fines for Trash. . ................................................... 144 §28 EXPLOITING THE OFFICE. . ................................................................................... Mis-Use of the Position to Influence & Political Power-Trades ................................... Stacking and Paying the Court Players............................................................... Nepotism.................................................................................................. Other Financial Good Deals for Judges............................................................... Mis-Use of Stationery....................................................................................

145 145 147 147 147 148

§29 HOLODECK LAW................................................................................................ 150 Background on former Attorney Linda Kennedy.................................................... 150

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CHAPTER THREE Clerk of court and administrative tricks. . ................................................... 153 INTRODUCTION TO CHAPTER THREE. . ........................................................................ 154 §30 STAFFING THE COURTHOUSE — INSIDER PATRONAGE............................................ 155 Kill the bill . . ............................................................................................... 158 Summary: The us versus them mentality of the country club court system .................. 160 §31 HIDDEN, SECRET AND LOST DOCKETS, AND COURT RECORDS.................................. Handling the Docket List................................................................................ The Rule of 10 ............................................................................................ Sealed Files. . .............................................................................................. Is Cronyism A License to Lie?........................................................................... Sometimes, judges seal cases just because — ...................................................... Courts don’t like after-the-fact press scrutiny of case handling.................................. Sealed record pattern — including offers to ‘protect your privacy’.............................. Look at the language of sealing. . ...................................................................... Lost and Removed Files................................................................................. Disappearing Files Trick — The Case Transfer . . ..................................................... Disappearing after trial.................................................................................. Anonymous pseudonyms............................................................................... Expunging the Record...................................................................................

161 161 163 164 164 165 165 166 167 168 170 170 170 170

§32 COMPUTERIZED DOCKETING............................................................................... Secret Docket............................................................................................. Burying the bodies ...................................................................................... “Thousands of cases over a 38-year period”. . ....................................................... Constitutional level abuse..............................................................................

171 173 175 176 176

§33 SECRET COURTS................................................................................................ 1. FISA Courts (Foreign Intelligence Service Act of 1978) .......................................... 2. Arbitration courts ..................................................................................... 3. Immigration and military tribunals regularly hold closed and secret hearings. ............ 4. Child Protection Act .................................................................................. 5. Many regulatory agencies. . .......................................................................... 6. Other federal agencies. . .............................................................................. 7. Court/Bar Disciplinary Proceedings................................................................ 8. Terrorism Authority.. . ................................................................................. “Voiding the Lawsuits”..................................................................................

177 177 177 177 178 178 178 179 179 180

§34 TRANSCRIPT TRICKS.......................................................................................... 1. The court’s first line of defense against review is to avoid making a record. ................ Why would a court employee risk her job and her integrity to falsify an official record? .. ... 2. Price/cost of transcripts is often prohibitive for outsiders...................................... Copyright and Copy Issues ............................................................................. “Extra” Permission Required .. ......................................................................... 3. Transcript Cleaning — Altered and Inaccurate Recording.. ..................................... Example — Court Erases the Record.................................................................. Example — Opposing Counsel Altered the Court Transcript for Appeal — Harmless Error... 4. Audio Recording Prohibitions.......................................................................

181 181 181 182 183 183 184 184 185 185

§35 CLOSING PUBLIC COURTROOMS & HIDING THE HEARING........................................ 186 Other examples of ways courts close public courtrooms ......................................... 187 Closing a Courtroom — Technique Two . . ............................................................ 187 vii

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Hiding the hearing . . ..................................................................................... 188

§36 CATTLE CALLS — OVER SCHEDULING FOR JUDICIAL PRODUCTIVITY. . ......................... It is a productivity statistic — without relevance to — ............................................. Under scheduling and excess courts and fees....................................................... I believe courts are unnecessarily ‘clogged’ for two hidden reasons: ........................... Delay can increase attorney yield by 50%. . .......................................................... Effect on the economy. . ................................................................................. Developing an attitude of public service? ...........................................................

189 189 191 191 192 193 193

§37 PRO SE TREATMENT........................................................................................... Example One. Federal court pre-approval . . ......................................................... Selective Discrimination . . .............................................................................. High volume pro se filers................................................................................ Pro se Requirements for Filing — and Rejection.. ................................................... Special surcharge for opening sealed records filings. . ............................................. Rankism.. .................................................................................................. Switching rules........................................................................................... Refusing to Accept a Pleading for Filing..............................................................

194 195 195 196 196 197 197 197 197

§38 CLEARING THE BACKLOG.................................................................................... Vacationing in Las Vegas................................................................................ Impeachment Cleanup.................................................................................. Oops, I Forgot the Mother. . ............................................................................. Dress for Arrest...........................................................................................

198 198 198 199 199

§39 CLOSING COURT LAW LIBRARIES TO PUBLIC ACCESS.............................................. Elitism...................................................................................................... Government How To Manuals. . ........................................................................ Prison libraries. . .......................................................................................... On-line research..........................................................................................

199 200 200 201 201

§40 CONTROL OF COURT DATA, POLLS, AND COURT STATISTICS . . .................................. The American Judicature Society — .................................................................. State Court/Bar Judicial Disciplinary Committees, Court Study Committees.. ................ Loyalty..................................................................................................... Disposable commodities. . .............................................................................. Why the study of how a judge handles other cases is important — .............................

201 202 203 203 203 205

CHAPTER FOUR Financial Tricks......................................................................................... 207 INTRODUCTION: A WAR MENTALITY........................................................................... 208 §41 THE FIRST RULE OF WAR IS PLUG THE SPRINGS..................................................... The first rule of a compliant judge is to shut-off cash flow to one side.......................... Judicial Complacency................................................................................... A First Strike Pattern .................................................................................... Gold-digging successor husbands .................................................................... Pre-Emptive Nature ..................................................................................... Fiduciary Element ....................................................................................... Meanness.................................................................................................. HOW AN AMBUSH WORKS IN COURT. . ................................................................ (1) Judicial cooperation ................................................................................ (2) Special treatment . . ..................................................................................

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209 210 210 212 212 213 214 214 214 214 215

(3) Failure to act . . ........................................................................................ 215 (4) Judges evade leveling the playing field in the early stages of a case........................ 216 Shaming Cases........................................................................................... 217 Possible Correction Orders . . ........................................................................... 219 Paying the Wife’s Legal Fees ........................................................................... 219

§42 SCORCHED EARTH .. ........................................................................................... 220 A second energy at work is anger ..................................................................... 222 Recovery and re-vegetation............................................................................ 222 §43 NUCLEAR WINTER DESTRUCTION........................................................................ Extreme tactics . . ......................................................................................... Run away cases .......................................................................................... Legal violence ............................................................................................ My experience in extreme judge retaliation.......................................................... The Element of Vindictive Pay-Back .................................................................. A Legitimate Grievance ................................................................................. R&R......................................................................................................... Media ...................................................................................................... Honor code collapse ....................................................................................

223 225 226 226 227 228 229 229 230 230

§44 WINNER TAKE ALL CASES.................................................................................... 231 Examples: ................................................................................................. 231 §45 EQUALITY OF ARMS AND OTHER FAIRNESS DOCTRINES. . ......................................... This is all creative judging .............................................................................. Paying The Players and Feeding the Sharks . . ....................................................... Wasted and Unproductive Waiting Time............................................................. Attorney Costs............................................................................................ Criminal Plea Bargains . . ................................................................................ Fines and Costs to the Victims......................................................................... Forfeiture.................................................................................................. Fines and Costs in the Criminal Court and Prison Process ........................................ Fines and Costs in the Court and Jail Process.......................................................

232 233 233 236 237 237 237 237 238 238

§46 PUBLIC POLICY, GUIDELINES, AND STATUTORY PROTECTIONS................................. 239 §47 LAW EVADING DIRTY FINANCIAL TRICKS................................................................ (1) Avoiding the mandatory disclosure and filing of financial affidavits........................ (2) “Stand Up!” — Disparate, hostile judge treatment ............................................. Another example of disparate treatment — tardiness.. ............................................ (3) The hidden costs of non-compliance............................................................. Lack of boilerplate language for compliance costs................................................. (4) Changing a final order (improper modification)................................................ Nullifying existing orders for support................................................................. Modification to alter another judge’s child support .. .............................................. (5) Cheap Bastard Child Support (case examples).................................................. (a) $5 Child Support ..................................................................................... (b) Dog support .......................................................................................... (c) Doggie support for children of judges ............................................................ (d) Judge comparison — four times greater.. ........................................................ (e) Special needs child of judge........................................................................ Exercise Analysis of Judge-child support calculations............................................. (6) Raiding the accrued child support arrearage.................................................... ix

240 242 244 244 245 245 245 246 248 248 248 249 249 250 250 251 252

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Double dipping........................................................................................... 252 (7) Improper discretionary assumptions are substituted for the rule of law ................... 253 (8) The Income stream. . ................................................................................. 254 (9) Tracing the source of funds for marital assets .. ................................................. 254 (10) Reorganization...................................................................................... 255 Synchronicity............................................................................................. 255 (11) Ex parte financials (for attachment hearings).................................................. 256 (12) Private pay for judging............................................................................. 256 (13) Fines and costs until the money runs out....................................................... 257 The Backstory. . ........................................................................................... 257 (14) Give with one hand, take back with the other. . ................................................ 258 (15) Mirror-image issues with inconsistent judge treatment...................................... 259 A judge manipulated default .. ......................................................................... 259 A third Appearance Form issue — the trial is reopened . . .......................................... 261 The Cure Times........................................................................................... 262 Assess the relative harm and benefit ................................................................. 262

§48 TIME OUT FOR PRACTICE TIPS ON DECONSTRUCTION ANALYSIS.............................. 263 Example: The GAL Tardy Fine. . ......................................................................... 265 §49 MORE LAW EVADING DIRTY FINANCIAL TRICKS. . ..................................................... (16) Zero valuation....................................................................................... This same trick in reverse is overvaluing what is a negative asset............................... Dicta as “proof”. . ......................................................................................... (17) Evading the FOF&ROL.............................................................................. (18) Errors in math and accounting.. .................................................................. (19) Rounding numbers and estimates............................................................... (20) Property offsets..................................................................................... (21) Repayment of support . . ........................................................................... Public policy on family support orders . . ............................................................. (22) Armed home invasions. . ........................................................................... (23) Contempt of court judge joker cards............................................................

266 266 267 267 268 269 269 269 270 270 271 272

§51 CHANGING THE UNCHANGEABLE: ADVANCED TRICKY MODIFICATION TECHNIQUES.... 1. Ignoring an order...................................................................................... 2. Nullifying a final property distribution order..................................................... 3. Improper offsets ...................................................................................... 4. Double dipping tricks: How spouses pay themselves........................................... 5. Show me the money.................................................................................. 6. A hide and seek accounting game, the funds get dissipated prior to trial. . .................. 7. Funding the industry. . ................................................................................ 8. Variation: ...............................................................................................

273 273 273 274 274 275 275 275 276

§52 SUPPRESSING ALTERNATIVES.. ............................................................................ 279 §52 ATTORNEY WHISTLEBLOWERS THE ATTORNEY SMACK-DOWN.................................. 281 Plug the professional springs .......................................................................... 282 Attorneys pay their own costs of prosecution . . ..................................................... 283 §53 THE HIDDEN COSTS OF BAD JUDGING. . ................................................................. Lack of de novo new trial. . .............................................................................. And the cost to the judge for being overturned? .. .................................................. America has the highest incarceration rate of any country in the world. .......................

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283 283 284 285

CHAPTER FIVE

TRICKS BEFORE TRIAL . . .............................................................................. 287

INTRODUCTION: THE FOUR STAGES OF TRIAL.. ............................................................ 288 §54 ASSIGNMENT OF THE JUDGE............................................................................... Switches and Substitutions.. ........................................................................... The Neutral Standard of Assignment................................................................. In New Hampshire, what did murder and divorce have in common? ........................... Random or Lottery Assignment. . ...................................................................... Law-System-Gamers .................................................................................... Special Assignments .................................................................................... Powerful Favors for Powerful People.. ................................................................ Denial...................................................................................................... The art of language . . .................................................................................... Switching the forum, changing the venue........................................................... Linkage Blindness........................................................................................

288 289 292 293 294 294 294 295 297 297 297 299

§55 COST OF JUDGESHIPS........................................................................................ 300 Buying a Judgeship or a Favorable Ruling . . ......................................................... 301 §56 JUDICIAL PATRONAGE, PART II.. ........................................................................... Why Would a Judge Want to Hide Close Relationships?........................................... Reasons for Bias are as Diverse as Human Nature ................................................. Example One: The Probate Court Guardian System................................................

302 305 306 307

Interpreting Double-Speak — The New York State Court Receives ‘Disturbing’ News of Corruption. . ............................................................................................... 309 Example Two: Court Patronage for the Local Corn Gentry........................................ 310 Example Three: Enterprise Corruption Theory...................................................... 310 Generating Fees for Favored Attorneys has Become the Currency of Judging . . ............... 311 Nepotism in Judicial Appointments.. ................................................................. 311 Example One: Federal Law Prohibits Consanguinity of a Federal Bench ....................... 311 Example Two: The Father-Son Overcharging Duo of Stephen and Adam Moser of Nassau County..................................................................................................... 311 It is the Favor of Hiring Someone’s Relative ......................................................... 312 The New Nepotism: Former Law Partners are Better Than Politicians.......................... 312 Example Three: Two Attorney/Members “of the Brooklyn Democrat Party Machine.. ........ 312 Judge Appointments in General .. ..................................................................... 313 Example Four: $250,000 in 10 Guardian Cases...................................................... 313 Example Five: Judge Fairbanks Investigation: $2 Million in Trustee Fees....................... 313 Favor Positions for Special Appointments are Endless.. ........................................... 313 Example Six: And the Winner Is — Sale of Stolen Property . . ...................................... 313

§57 REFUSAL TO RECUSE. . ........................................................................................ Judges Judge Their Own Neutrality and Fitness.................................................... The So-Called Duty to Sit Mis-Argument............................................................. The Federal Standard for Recusal..................................................................... Waffle tricks .. ............................................................................................. Example One: Massey Coal in West Virginia. . ........................................................ The State Standard for Recusal........................................................................ Rule Changes............................................................................................. Individual Acts of Conscience . . ........................................................................

314 314 314 315 315 315 316 316 317

§58 INTERFERENCE AFTER DISQUALIFICATION............................................................ 318 Judge in a closet and other covert operations by a disqualified judge to affect the case

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outcome... ................................................................................................. 319 Stalking a Case ........................................................................................... 320

§59 WHO GETS PROSECUTED?.. ................................................................................. The Jena 6................................................................................................. Drug Industry Cases ..................................................................................... Selective Prosecution................................................................................... Vindictive prosecution.. .................................................................................

320 321 321 322 322

§60 SETTING BAIL. . .................................................................................................. 323 §61 GRAND JURY ABUSES AND USES.......................................................................... One ham sandwich case................................................................................ But, not everyone has even ham sandwich rights . . ................................................ A history of the grand jury standing problem. . ...................................................... Gender issues in the grand juror pool ................................................................ The grand jury as a fishing expedition ............................................................... Unindicted co-conspirators. . ........................................................................... Angry Grand Jury with a mind of its own ............................................................

326 326 327 327 327 327 328 328

§62 SWITCHING THE PROSECUTOR (STATE OR FEDERAL).............................................. The State Attorney General or the FBI?............................................................... Example One: The Concord Bomber.................................................................. Difference between federal and state systems......................................................

329 329 330 331

§63 LAW ORPHANS: JUDGE-LAW DOCTRINES TO AVOID CASES...................................... 332 §64 “PLEA BARGAIN MILLS AND FRAME-UP FACTORIES”............................................... History and evolution of plea bargains............................................................... Game Theory for Plea Bargains........................................................................ The national social policy allowing prosecutors to overcharge defendants ................... Waivers. . ................................................................................................... Relationship to Sentencing Schemes — Federal and State. . ...................................... The Doctrine of Relative Filth.......................................................................... Kids on Fire................................................................................................

333 333 334 335 336 336 336 338

§65 TIME OUT FOR KUDOS........................................................................................ 339 Kudos ...................................................................................................... 339 §66 DISMISSAL BEFORE TRIAL................................................................................... Favors for the Home Team.............................................................................. Example One. Summary Judgment .................................................................. Example Two. Paris Hilton Justice for All............................................................. Example Three. Home Confinement.................................................................. Example Four. Someone Else Gets the Ticket. . ......................................................

340 340 340 341 341 341

§67 DISCOVERY GAMES. . ........................................................................................... Stonewalling American Style. . ......................................................................... Stonewalling — Soviet Style............................................................................ 1. Confidentiality agreements. . ........................................................................ 2. Discovery timing tricks............................................................................... 3. Stop the Clock......................................................................................... 4. FOIA Stonewalling. . ................................................................................... 5. Divide and Conquer ..................................................................................

341 342 343 343 344 345 345 346

HOMEWORK FOUR — UNFAIR JUDICIAL MANEUVERING................................................ 346 Example: Judges Routinely Narrow the Focus to Avoid Looking at the Whole Picture ....... 349 xii

6. Giving Up Discovery Without Letting Go........................................................... 350 7. Intrusive and Offensive Discovery.................................................................. 351 8. The Crazy Charge ..................................................................................... 351 9. Rambo Depositions................................................................................... 352

§68 TIMING TRICKS — THE LOPSIDED CLOCK. . ............................................................. 1. A Rush to Trial. . ........................................................................................ Example Two: April 15th Trial Date ................................................................... Why is a rush to trial favorable to an Insider? ....................................................... 2. Excessive Delays.......................................................................................

352 352 353 353 354

§69 INDEFINITE INCARCERATION AND CONTEMPT OF COURT........................................ Example One: Dr. Elizabeth Morgan .................................................................. Example Two: Indefinite incarceration . . ............................................................. Incarceration for civil contempt.. ...................................................................... Example Three: My client was jailed indefinitely ................................................... Example Four: A New York financier .................................................................. Example Five: Manuel Osete ........................................................................... Example Six: Contempt for disrespecting a judge .................................................. Example Seven: Court Jesters ......................................................................... Incarcerating defendants for non-jailable offenses (2005)........................................ Incarceration without charges, without trial (2014)................................................ Attorney Elena Sassower. . ..............................................................................

355 355 355 355 356 356 356 356 357 358 358 358

§70 LIMITING THE ISSUES FOR TRIAL......................................................................... 359 Example One: Cut out the heart ....................................................................... 359 Example Two: No adultery allowed . . ................................................................. 359 §71 TRUMPED-UP CRIMINAL ACCUSATIONS . . .............................................................. 360 Criminal balloons . . ...................................................................................... 360 The ‘wiretapping’ scam ................................................................................. 361 §72 LIP SERVICE ABOUT PRO BONO LAWYERS AND FLAT FEE CRIMINAL DEFENSE. . ........... 363 §73 LAWYERS WITHDRAWING BEFORE TRIAL............................................................... Lawyer withdrawing..................................................................................... Plea Bargaining in America .. ........................................................................... Defense Attorneys ....................................................................................... Ineffective Assistance of Counsel...................................................................... Prosecutorial Misconduct. . .............................................................................

363 363 366 367 367 367

§74 PAID ALTERNATIVE JUDGING............................................................................... Compulsory or Not?. . .................................................................................... Family Matters — Mediation............................................................................ Crazy Doesn’t Mean Divorce Pathology............................................................... False Mediation .......................................................................................... Therapeutic and Holistic Mediation Processes...................................................... Inclusion .................................................................................................. What Mediation Can Do that Judges Cannot........................................................ Quaker Mediation .. ...................................................................................... Navajo Peacekeeping. . ..................................................................................

370 371 371 371 372 372 372 373 373 373

§75 JURY SELECTION............................................................................................... 374 Influencing jury selection............................................................................... 374 Race, gender and class preclusion .................................................................... 374

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Picking and Allowing Jurors with Biases . . ........................................................... 374 Juror Sanctions — Change your Mind or Else. . ...................................................... 375 Juror cell Phone Contempt............................................................................. 375

§76-A TRASH CONTEMPT AND OTHER EXAMPLES NOS ............................................................. 375 Destruction of trial exhibits by the judge or court personnel..................................... 375 Exhibit destruction by the other party ............................................................... 376 The Backstory. . ........................................................................................... 378 §76-B ACTING IN EXCESS OF JURISDICTION — AN ALTERNATIVE COURT BEYOND THE LEGAL ONE........................................................................................................... 380 Here’s Malcolm’s GAL role. . ............................................................................. 381 Here’s a non-official list of judge-powers delegated over to his undisclosed best friend. . ... 383 CHAPTER SIX

Tricks During Trial..................................................................................... 387

INTRODUCTION ...................................................................................................... 388 §77 SUA SPONTE ACTS.............................................................................................. 390 Example One: Removing the Defense Attorney ..................................................... 391 Example Two: Manipulating a Default. ............................................................... 391 Example Three: Co-counsel with the Prosecutor (A judge who makes Objections for One Side).

. . ............................................................................................................ 391 Re-characterization of Common Law Principles by Judges....................................... 392 Questions for Constitutional Students.. .............................................................. 393 §78 EX PARTE CONTACTS........................................................................................... Ex parte hearings ........................................................................................ Variations in ex parte tricks:............................................................................ Example One: Florida Bankruptcy .................................................................... Example Two: Piecemeal Divorce Transfers ......................................................... Styles of ex parte Communication Outside of Court . . ............................................. Example Three: Indirect Communication with the Judge .. ....................................... Idealized Power and Authority ........................................................................ Analysis note — Collecting evidence of a judge’s ex parte contact. . ............................. Analysis Notes on the Example of The Honolulu Advertiser Building Site. ..................... Ex parte review of financial affidavits. . ............................................................... Ice hockey example ..................................................................................... Phone Call Example ..................................................................................... Co-Dependence between Judges.. .................................................................... Author’s Note on Imperial Thinking .................................................................. Example: Monte Carlo vacation buddies . . ........................................................... Example: Social and professional events ............................................................ Example: Take a hike ....................................................................................

394 394 395 395 398 398 398 399 400 401 401 403 403 405 405 406 407 407

§79 CAMERA AND MOVIE STAR JUDGES. . ..................................................................... Clint Eastwood on the bench. . ......................................................................... Do the Judge’s comments in jest reflect a pre-disposition? ...................................... Live cameras and media reporting affect a defendant’s rights to a fair trial ................... A Pseudo-Event .......................................................................................... Poetic license untied to fact .. .......................................................................... Interviews and Speeches ............................................................................... Another Judge Gray case example . . .................................................................. Example: The Microsoft media hound judge ........................................................

408 409 410 412 412 415 416 416 417

xiv

Don’t steal my shot ...................................................................................... 417 Inept Judging .. ........................................................................................... 418 Watch for the False Pseudo-Compliments from this Kind of Judge ............................. 419 Reporters and radio hosts in the courtroom......................................................... 419 Example: The Pat Fromal Case ........................................................................ 419 Notes on New Hampshire Rule changes about television......................................... 419 Federal Court camera treatment ...................................................................... 420 One last word about cameras in divorce court...................................................... 420

§80 SHORT-CUTS FOR INSIDERS................................................................................ Short Cut #1: A Relaxed Court.......................................................................... Absence of formal rules and procedure.. ............................................................. Short Cut #2: Judicial Discretion ...................................................................... Short Cut #3: Offers-of-Proof........................................................................... Short Cut #4: Shifting the Burdens of Proof ......................................................... Shifted burdens of proof and junk science .......................................................... Short Cut #5: Presumptions . . .......................................................................... Rebuttable presumptions .............................................................................. A Parent is charged with disproving a nullity or non-event. . ...................................... Short Cut #6: Secrecy as a Weapon Against Outsiders . . ........................................... Short Cut #7: Flipping a Case .......................................................................... Short Cut #8: Jailhouse Snitches ...................................................................... Short Cut #9: Police Who Lie ........................................................................... Short Cut #10: Mass Incarceration..................................................................... Short Cut #11: Reciprocal Orders...................................................................... Short Cut #12: Waivers .................................................................................. Short Cut #13: Off Record Rulings..................................................................... Short Cut #14: Private Courts —A Non-Constitutional Forum. . ...................................

421 421 421 423 423 424 424 425 426 426 428 429 429 430 430 431 432 432 433

§81 STACKING THE PLAYERS AND WHO’S IN THE GAME (IN COURT)................................ (1) Stacking the Players................................................................................. (2) The Bandwagon Effect .............................................................................. (3) Law schools are screening tightly for admission................................................ The Paradox .............................................................................................. (4) Who’s not in the Game — Unable to find a lawyer.............................................. (5) Hired Gun Experts.................................................................................... Accounting and Business Valuation Experts ........................................................ Specialty Experts ........................................................................................ Cockroach Expert........................................................................................ The Zoloft Battle of the Experts Case................................................................. (6) Judges predispositions toward Law Enforcement and Prosecutors .. ....................... Example: “A Patriot”..................................................................................... (7) Neutral Experts in Court. . ........................................................................... (8) Cronyism with Extra Players........................................................................ More California Cronyism .............................................................................. (9) Probate Court appointments and rubber-stamping the over-billing........................ (10) Private Judges — Appointments of Retired Judges........................................... (11) FOJ is Friends of Judges........................................................................... (12) Who Else is Not Invited to Court — The Gadfly .. ............................................... First, let me introduce a gadfly. What does a gadfly look and sound like?......................

435 435 435 437 438 439 439 439 440 440 440 441 441 443 443 444 444 445 446 447 447

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(13) Who is invited and welcome in Court — State-salaried lawyers ............................ 454 (14) Prosecutors.......................................................................................... 455 (15) Family Law Court players.......................................................................... 456 (16) Intervenors .......................................................................................... 457 (17) Jurors in Court — selection and other judge tricks............................................ 458 Juror selection. . .......................................................................................... 458 Juror conduct and impact.............................................................................. 458 Friends and relatives with the judge.................................................................. 458 Jury instructions......................................................................................... 459

§82 EXPERTS AND FORENSIC CORROBORATION. . ......................................................... Outside professionals in court......................................................................... (1) Junk Science and bogus lab testing............................................................... (2) So-called neutral experts in court................................................................. (3) Psychiatry and the law.............................................................................. The passage of time test................................................................................ Statistics ..................................................................................................

459 459 459 461 461 462 463

§83 JURISDICTIONAL TRICKS — EXPANDED MATTERS................................................... 1. Expanding the hearing to matters not noticed................................................... Example One: Sometimes, extra is good. ............................................................ Example Two: ............................................................................................ Example Three: .......................................................................................... A mother’s rule for dividing equal property ......................................................... 2. Acting in excess of jurisdiction —................................................................... 3. Abuse of contempt power ........................................................................... 4. Collateral matters on cross-exam .................................................................. 5. After hours hearings ..................................................................................

463 463 464 465 465 466 467 469 469 469

§84 RULES AND JUDICIAL DISCRETION....................................................................... 1. The Court’s own rules ................................................................................ 2. Statutory framework and legal presumptions. . .................................................. In addition to statutory elements, there are legal presumptions to consider.................. 3. Developing a guide for what’s worth fighting for — ............................................. 4. One-sided applications of procedures, rules and law .. ......................................... Example One: Whose a Party in this Child’s Case?.................................................. 5. Standing as a judicial sword to keep interested parties out of court......................... Example Two: State Secrecy Court Rules. . ........................................................... 6. Judge eulogies ........................................................................................ Winners and losers ...................................................................................... 7. Courtyard bullying . . .................................................................................. Courts don’t provide omnisbudsmen ................................................................ 8. Making up rules — Bastard Law..................................................................... 9. Protecting one-sided use of rules. . ................................................................. 10. Timing the trial abuses .............................................................................

470 470 470 470 471 472 472 473 474 474 474 475 476 476 477 477 There are three tricks to timing: when the trial is set and how the actual trial is conducted..477 Trick 2: Endless delay. . . ................................................................................. 477 Trick 3: Timing during trial. .. ........................................................................... 477 11. Administrative rule-making........................................................................ 478

§85 COMPROMISING THE ROLE OF A TRIAL JUDGE....................................................... 479 1. Proper (and the other) standards of conduct..................................................... 479

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Is ‘improper standards’ an oxymoron?............................................................... 479 2. Recused but continuing to influence a case ...................................................... 480 The Magical Hat Trick. . .................................................................................. 480 June 23, 2000............................................................................................. 481 June 26, 2000............................................................................................. 481 3. A Duty to Sit — not . . .................................................................................. 482 4. Disqualified semantics............................................................................... 482 5. Judge racism — You mean there are Black attorneys? . . ........................................ 483 6. “Do you think I’m corrupt?”. . ........................................................................ 483 7. “I was wrong.” (Umpire calls)........................................................................ 484 What can you do about it? .. ............................................................................ 484 Bad calls . . ................................................................................................. 484 Challenges to a judge for conflict of interest. ....................................................... 485 8. Witness testimony by the presiding trial judge — ............................................... 486 What about the public’s right to accountability?. . .................................................. 487 9. Padding the record — reinforcing a bad ruling................................................... 487 Judicial dicta and rhetoric ............................................................................. 487 Reinforcing a bad ruling ................................................................................ 487 Conclusory dicta ......................................................................................... 488 10. Presumptive judicial commentary................................................................ 488 11. Judges who lie — the duty of candor — NOT!................................................... 488 Judges who see attorneys violate the duty of candor ............................................. 489 12. Insults and threats................................................................................... 490 13. Difficult judges.. ...................................................................................... 491 King Kong in the courtroom............................................................................ 492 14. Temper tantrums.................................................................................... 492 Hurling .. ................................................................................................... 493 15. Sandbox mentality — play nicely. . ................................................................ 493 16. Judge-made law that overrides legislative law................................................. 494 17. Defamation and slander from the bench.. ....................................................... 495 18. Judicial immunity. . .................................................................................. 495 19. Transfer and delegation of judge authority and power ....................................... 496 No limits to a judge’s power............................................................................ 496

§86 DISCOVERY TRICKS & DOCUMENT DUMPING AT TRIAL. . ........................................... 496 The Impressive Trial Exhibit Book . . ................................................................... 497 §87 MINIMIZING PUBLIC EXPOSURE........................................................................... Eric’s Pre-Trial Conference ............................................................................. Gagged for life — The Connecticut Four (Librarians)............................................... Warrant Canaries......................................................................................... Off-the-Record Rulings.................................................................................. So why do courts make so many unpublished or off the record rulings? ....................... Off the Record Records..................................................................................

498 498 500 500 502 502 502

§88 COURT WATCHERS, HELP AND SUPPORT GROUPS.. ................................................ 503 State Prosecutor Packing the Courtroom — another kind of media circus..................... 504 §89 THE CRAZY CARD: INVOLUNTARY MENTAL EXAMS (“IME”). . ...................................... Martha Mitchell........................................................................................... The Martha Mitchell Effect ............................................................................. Mrs. Packard..............................................................................................

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§90 ARMED HOME INVASIONS................................................................................... The Exponential Growth of SWAT. . .................................................................... Black Bag ‘Legitimacy’.................................................................................. Fourth Amendment Wrongs............................................................................ At the local levels, both local police and local judges pretend it doesn’t happen.. . ......... Unarmed Black Men . . ................................................................................... Judges with big egos acting with physical force.................................................... Tacit Collusion: Looking the Other Way.. ............................................................. Impeachment Rules .....................................................................................

508 509 510 510 510 511 511 512 514

§91 COERCION TRICKS............................................................................................. Motivating a party to forego a Constitutional right................................................. Strong arming the parties to plea or settle. . ......................................................... Coercive influences . . ....................................................................................

514 514 515 515

§92 COERCION TECHNIQUES WITH LAW ENFORCEMENT AND OTHER GOVERNMENTAL AUTHORITIES.. ................................................... Calling out the National Guard. . ....................................................................... Looking the other way: tacit collusion between judges and law enforcement. . ............... Round One and Two. The City of Concord gets involved in my divorce......................... Analysis.................................................................................................... 1. Timing................................................................................................... 2. Circumstances......................................................................................... 3. Other circumstances: The chief letter was dated on his first day on the job................. 4. A personal note: None of this analysis occurs to you on the spot. ............................ 5. The role and duties of three Concord city officials............................................... 6. Intimidation ........................................................................................... 7. Coordinated officialdom . . ........................................................................... The Moral Dilemma for Bystanders Caught in the Undertow..................................... 8. Illusions of criminality — an anticipatory criminal .............................................. 9. Lack of court order .. ..................................................................................

517 517 517 518 518 518 518 518 518 519 519 520 520 520 521

§93 AVOIDING THE BIG PICTURE................................................................................ Avoiding the Big Picture. . ............................................................................... Id the pattern.. . ........................................................................................... Remedies for this pattern of judicial abuse? ........................................................ If I’m not a spouse of a judge, why do I care?........................................................

522 522 522 523 523

§94 TRICKS FOR SPLITTING A CASE............................................................................ Premature asset distribution in divorce.............................................................. The relative position and disruption to an opponent .. ............................................ Summary judgment dilemma. . ........................................................................

524 524 524 524

§95 JUDICIAL RULINGS AND ERRONEOUS LOGIC. . ........................................................ 1. False Findings of Fact ................................................................................ 2. Heuristics and Decision-Making.. ................................................................... 3. Erroneous Logic.. ...................................................................................... Examples of Common Errors in Logic................................................................. 4. Reinforcing a Bad Ruling — A big need for damage control....................................

525 525 525 527 527 530

§96 CLAIRVOYANT JUDGES . . ..................................................................................... 533 The clairvoyant judge — A judge who knows and relies on facts not in the record............ 533 §97 OL’BOY DAMAGE CONTROL. . ................................................................................ 535 General steps and techniques ol’boys use to effect damage control for each other—........ 535 xviii

8. More damage control — reinforcing a bad ruling. . ............................................... 539 The example of 18/23 ................................................................................... 539 9. More erroneous logic, male version: gobble-de-gook........................................... 540 10. Court patterns that ignore and deny Equal Protection and Due Process .................. 541 11. Semantics Games and Intellectual Dishonesty . . ............................................... 541 12. Erroneous logic, female version: because I said so............................................. 542

§98 SCREWING AROUND WITH THE EVIDENCE IN A CASE............................................... The Rules of Evidence . . ................................................................................. The weight of the evidence............................................................................. Attorney perjury.......................................................................................... Mishandling Evidence................................................................................... Hiding a material witness............................................................................... Spoliating or throwing away evidence. . .............................................................. Trash as evidence — turning evidence over to the opposing party. . ............................. Other evasions of evidence............................................................................. Note on cleaning the court record of incriminating documents and testimony...............

542 542 543 543 544 544 545 546 546 547

§99 HAND SIGNALS, EYE WINKS AND OTHER NON-VERBAL JUDGE SIGNS. . ....................... Gadflies.................................................................................................... (5) The Poppin’ Rule..................................................................................... (6) The judicial stink eye................................................................................

548 549 550 550

§100 TOYS IN THE COURTROOM.. ............................................................................... The crystal ball, color codes and other obviously capricious forms of decision-making..... The Crystal Ball .......................................................................................... The Color Chart........................................................................................... Quick dumb judge tricks................................................................................ The penis pump judge — follow-up...................................................................

551 551 551 551 551 552

§101 ENDING THE TRIAL AND OUTCOME TRICKS.......................................................... (1) The judge makes the closing argument.. ......................................................... (2) Poor jury instructions and errors.................................................................. (3) Manipulating to withhold elements from the jury, but resurrect them at sentencing . . .. (4) The judge as the finder of fact of a sentencing element.. . ..................................... (5) Poor and inadequate jury instructions........................................................... (6) Jury Nullification..................................................................................... (7) Juror Unanimity .. ....................................................................................

552 552 553 554 555 555 555 556

§102 JUDGES RULINGS — ONE WORD DECISIONS........................................................ Millions of cases in America decided with one word. .............................................. Ruling and court economy — with and without explanations.................................... Deflection and spin . . ....................................................................................

556 556 558 558

§103 SLAPP SUITS................................................................................................... Slapp actions once removed........................................................................... Two other areas of potential slapp action — wiretapping and witness tampering............ Lawyers and Suicide..................................................................................... Premonitions, hunches, and intuition .. .............................................................. Things that are broken in our system because of the arrogance of leaders. ................... Another attorney wrote of his avalanche court experience. ......................................

559 561 563 565 567 570 570

§104 THE ATTORNEY SMACK DOWN.. .......................................................................... 574 Attorney smack-down and attorney whack-down.................................................. 575

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§105 A WASHINGTON WORD OF ENCOURAGEMENT . . .................................................... 576 CHAPTER SEVEN Tricks after Trial........................................................................................ 577 §106 WRITING THE DECISION ................................................................................... 578 Here’s the list of what we’ll cover in Chapter 7. The first six are in this section................ 578 (1) One Word Decisions — Denied............................................................. 578 On being elite .. ........................................................................................... 578 (2) Empty Formalistic Decisions....................................................................... 579 Example One and Two. . ................................................................................. 580 Example Three. . .......................................................................................... 580 (3) Intellectual Dishonesty.............................................................................. 581 Clan protection system. . ................................................................................ 581 (4) Not for Publication Rulings .. ....................................................................... 585 (5) Ignoring Precedent. . ................................................................................. 585 (6) Outcome Determinative Decisions................................................................ 586 Attorney Whistle Blowers . . ............................................................................. 588 §107 PROTECTING OR ABUSING THE LAWYERS ........................................................... (1) Ineffective Assistance of Counsel (IAC). . .......................................................... Example One: My Brother Eric. . ........................................................................ Example Two: Tommy D. Case......................................................................... (2) Prosecutor Misconduct.............................................................................. (3) Public Defenders..................................................................................... Hiding the Public Defender ............................................................................ Abusing Public Defenders .............................................................................. Removing the Defense Attorney — A LACK OF CONSTITUTIONAL AUTHORITY................. (4.) Laurie’s List........................................................................................... (5.) The Texas Defender Service ....................................................................... (6) Mediation Process Report Card....................................................................

589 589 589 589 590 591 591 592 592 592 593 593

§108 SENTENCING TRICKS........................................................................................ Sentencing Trick 1: Grossly Disproportional Sentencing.......................................... Sentencing Trick 2: Coercing Disposition — a judge/prosecutor trick........................... Sentencing Trick 3: Creative Criminal Fines ......................................................... Half-Off Sale .............................................................................................. Sentencing Trick 4: Debtor’s Prison................................................................... Unable to afford a traffic fine .......................................................................... Time to pay docket ...................................................................................... Sentencing Trick Five: Rubber-Stamping Verdicts (by a judge who lies)........................ Sentencing Trick 6: Lenient on Rape.................................................................. What is worse is this same gender bias exists in sentencing for murder of a wife. ............ So, wives don’t have much value in Maryland. What about young female employees?...... The Impact of the Internet ............................................................................. Sentencing Trick 7: Defendant Disabilities in Sentencing......................................... One of the greatest things about America is the premise of our equality....................... 7-a. Lower mental capacity............................................................................. 7-b. Prisons are modern mental hospitals........................................................... 7-c. Sentencing juveniles as an adult................................................................. 7-d. Lower social standing.............................................................................. Sentencing Trick 8. Hate, Thought, and Obstruction Crimes .....................................

594 595 596 597 597 598 598 598 599 599 600 600 601 602 602 602 602 604 605 605

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What’s in their thinking. . ................................................................................ 605 Thought crime ........................................................................................... 606 Sentencing Trick 9: Statutory Excesses by Inconsistent Drafting................................. 607 Sentencing Trick 10. Private Sexual Punishment................................................... 608 Sentencing Trick 11 — Corporal punishment ....................................................... 608 Sentencing Trick 12 — Judicial Manipulation and Error — (11 examples) ...................... 609 A. Judge prejudice in sentencing . . .................................................................... 609 B. Retaliation and judge emotion ..................................................................... 609 C. Removal of children from parental custody ...................................................... 609 D. Abuse of the role of the jury......................................................................... 610 E. State rights arrogance in evading federal rights. . ................................................ 611 F. The Idea of uniformity in sentencing............................................................... 611 G. Bias in balancing sentencing factors .............................................................. 612 H. Improper manipulation of a sentencing factor.. ................................................. 613 I. Harmless error ......................................................................................... 615 J. Double dipping ........................................................................................ 615 K. Lenient Sentences for serious crimes ............................................................. 616 Leniency in sentencing, Part II (Six more different examples).................................... 618 Example One: Boston yet again ....................................................................... 618 Example Two: Diplomatic Service .. ................................................................... 618 Example Three: The Beanie Baby Billionaire........................................................ 618 Example Four: Elite prison sentences................................................................. 618 Example Five: Sotheby’s . . .............................................................................. 619 Example Six: Another case of aggrandized criminal thinking.................................. 619

§109 THE DEATH PENALTY & LWOP. . ........................................................................... A. The Death Penalty. . ................................................................................... A-1. Statistics and Numbers . . .......................................................................... A-2. The Error Rate....................................................................................... A-3. The Duty Judge. . .................................................................................... A-4. Thoughts on Woods v. Ryan................................................................... A-5. Exoneration.......................................................................................... A-6. Restitution . . ......................................................................................... B. LWOP — Life Without Parole. . .......................................................................

620 620 620 621 621 621 622 622 623

§110 THE EVOLUTION OF U.S. CRIME POLICY. . ............................................................. Vigilante Justice .. ........................................................................................ Historically, judges have always decided sentencing . . ............................................ Into the Jaws of Prosecutors .. ......................................................................... Federal Sentencing Guidelines. . .......................................................................

624 627 627 629 629

§111 GROSSLY DISPROPORTIONAL SENTENCING AS FAILED PUBLIC POLICY. . .................. A. From Rehabilitation to Punishment. . .............................................................. B. National Policy Questions about Marijuana . . .................................................... C. Federal Sentencing Guidelines. . .................................................................... D. A Brief History of Sentencing Trends in America................................................. E. What Do NASA Wind Turbines Have to do with Sentencing?................................... F. 85% Minimums. . ....................................................................................... G. The 2005 Change. . . ................................................................................... H. The Unintended Consequence — Prosecutors Rule............................................. I. Federal Court Judges Step into a Pattern of State Abuses ......................................

631 631 631 632 633 633 634 635 635 637

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As a society, who gets to ask, what if judges and prosecutors are wrong? ..................... 637 J. A Brief History of More Sentencing Trends in America.......................................... 638 Another Important Look at Witch Trials.............................................................. 638

§112 MISTRIAL AND VACATING A JURY VERDICT........................................................... Example One: Insane jurors............................................................................ Example Two: Daniel Ellsberg.......................................................................... Example Three: Tardy mistrial .........................................................................

639 639 640 640

CHAPTER EIGHT Tricks on Appeal........................................................................................ 641 CHAPTER EIGHT INTRODUCTION — TRUE CONVERSION. . .............................................. 642 §113 THE CULTURE OF THE COURT............................................................................ A. The Culture of the Court. . ............................................................................ “A court aloof from its nation”......................................................................... B. The Honor Code ...................................................................................... C. The Confidentiality of the Case Conference...................................................... 1. Recusal was a fuzzy concept for the judges. ...................................................... 2. Evading the rules...................................................................................... 3. Complaining about a judge intrudes on his judicial independence, claims Torruella. .... 4. Court panels and special appointments. . ......................................................... E. The Lyme Tick Epidemic............................................................................. Infectious Disease Society of America . . .............................................................. F. Cheating. . ............................................................................................... The brain mechanism for detecting cheating.. ...................................................... The vocabulary of cheating. . ........................................................................... The Noble Lie............................................................................................. G. Whistleblowers........................................................................................ Whistleblowers are ordinary people, with a different mental process than others............ H. Alternatives & Avoiding the Ethics Rules..........................................................

643 643 643 644 645 646 647 647 648 649 649 650 650 650 651 652 652 654

§114 STRATEGIES FOR MINIMIZING THE NUMBER OF APPEALS...................................... A. Procedural Tricks...................................................................................... 1. Appeal Costs........................................................................................... 2. Timing................................................................................................... 3. Requirements only for Pro se. . .................................................................. 4. Process requirements —.. ............................................................................ B. Discretionary Appeals................................................................................ C. Transcript Strategies. . ................................................................................ C-1. The whole cost of transcripts for appeal is designed to favor the trial winner............ C-2. Do not jump to the conclusion that courts are making money off of transcripts. ....... C-3. Cost of transcripts..................................................................................

655 655 655 656 656 656 657 658 658 659 659

C-4. The costs of appeal bear little to no relevance to the cost of production of goods and services. ................................................................................................... 660 Tips and Hints.. ........................................................................................... 660

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§115 JUDGES’ WORK HOURS.. ................................................................................... 661 A. An Op-ed ............................................................................................... 661 B. Dealing with Backlog................................................................................. 662 §116 DOCTRINES THAT AVOID APPELLATE REVIEW....................................................... 662 A. Federal pre-emption doctrine. . ..................................................................... 663 B. Another loophole.. .................................................................................... 663 C. Younger Doctrine, et al...................................................................... 664 D. AEDPA — Suspending the Writ?..................................................................... 664 E. Justice Hugo Black, The Doctrine of Incorporation........................................ 665 §117 JUDGE ASSIGNMENTS, PANELS AND RECUSALS. . .................................................. A. Random assignment of judges...................................................................... B. Assigning the old guys as replacement judges................................................... What’s the problem?..................................................................................... C. Impeachment ignorance............................................................................. D. Conflicts of Interest................................................................................... (1) How judges get appointed to appeals court..................................................... (2) Buying an election................................................................................... (3) Stacking the deck based on known ideology.................................................... (4) The Cherish Era .. ..................................................................................... (5) Recusal as a due process constitutional right? . . ................................................ (6) Guests at the Wedding .............................................................................. E. Appointments versus election of judges .......................................................... F. Rules Tricks for Appeal Judges...................................................................... G. Recognition of the unreliability of the trial process for fairness...............................

666 666 666 666 667 668 669 669 671 671 673 673 674 675 676

§118 THE HISTORY AND EVOLUTION OF APPEAL DECISIONS ......................................... A. Goals.................................................................................................... B. My Background........................................................................................ C. The Breyer Report. . ................................................................................... D. Bayless Manning...................................................................................... E. A quick summary of the evolution of appeal cases as defining law in America............. G. Early American Lawyer Training....................................................................

677 677 677 678 681 682 683 This Socratic Method altered the nature — not only of most lawyers, but the nature of law. .684 H. Why judges don’t have pocket Constitutions. . ................................................... 685 I. The Role of Trust in modern appeal decisions.. ................................................... 687 The role of trust in appeal decisions . . ................................................................ 688 A moral imperative — The illegitimacy of reason without responsibility. . ...................... 689

§119 THE WRITTEN APPEAL DECISION. . ...................................................................... Gobble-de-Gook as law................................................................................. Sometimes we just write gobble-de-gook.. . ......................................................... The untruth of appellate cases. . ....................................................................... Legal realism..............................................................................................

690 690 690 690 691

Ordinary Americans may talk about the Federalist Papers, and carry those pocket Constitutions. ............................................................................................ 692

§120 HOW TO READ AN APPEAL DECISION.. ................................................................. 693 A. Steps for reading appeal decisions ................................................................ 693 B. Now, let’s look at several hints from Dean Manning, . . .......................................... 694 §121 DO-OVERS AFTER THE FIRST APPEAL.................................................................. 697 A. Introduction ........................................................................................... 697 xxiii

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B. The Microsoft Do-Over ............................................................................... 698 C. Who Owns the Law? .................................................................................. 699 D. More Do-Overs — Court of Appeals Initiated New Public Policy into Some Hapless Person’s Case........................................................................................................ 699 E. State Judge Do-over — Writ of Habeas Corpus for Ineffective Assistance of Counsel ..... 701 F. The List Begins with One-Word Decisions......................................................... 701

§122 EVASION AND OTHER JUDGE TACTICS................................................................. A. Harmless Error......................................................................................... B. Avoiding Abuse of Discretion........................................................................ C. Ignoring Precedent — The Rule of Stare Decisis. . ................................................ D. Outcome Determinative Decisions................................................................. E. Empty Formalist Decisions..........................................................................

702 702 703 705 707 707

§123 THE ROLE OF TRUST IN APPEAL DECISIONS......................................................... Respect and Empty Respect ........................................................................... The Role of Fear in the Court System ................................................................. Unpublished opinions................................................................................... A Suggestion: Establish a national fiduciary status for judges. . .................................. The Supremacy Clause in the U.S. Constitution. . ................................................... Why is there a dearth of patriot judges in the U.S. today?.........................................

709 709 710 710 711 711 713

§124 EVADING THE RULES — AN HONOR CODE............................................................ 713 §125 DATA ABOUT JUDGES IS HARD TO COME BY......................................................... 718 §126 TWO ESSAYS. . .................................................................................................. 718 The Dark Night of the Soul.............................................................................. 718 §127 CONFLICTS OF INTEREST AND DISQUALIFIED JUDGES. . ......................................... Getting on the court.. .................................................................................... So how much power does Congress have over judges?. . .......................................... Buying/costs of elections for judgeships............................................................. Appointments of BFF’s and other political payoffs................................................. Failure to recuse in the court of appeals. . ............................................................ Recused judge influences case outcomes............................................................ Recused judge authors both sides of court opinion................................................

721 721 721 721 721 722 722 723

§128 SUBSTITUTE PANELS FOR APPEALS HEARINGS.................................................... 724 One rule provides for substitute panels of judges to hear appeals. ............................. 724 Three judge panels with only one judge ............................................................. 725 §129 NOT FOR PUBLICATION — UNPUBLISHED DECISIONS.. .......................................... 726 §130 EXTRAORDINARY CORRECTIONS — CLEMENCY, REDUCTION OF SENTENCE AND PARDON........................................ (1) Pardon (also reprieve)............................................................................... (2) Clemency — see reprieve and pardon (full or partial).......................................... (3) Reduction in Sentence.. ............................................................................. (4) An Act of Congress.. .................................................................................. (5) Commutation of probation, supervised release, or special parole. . ......................... (6) Death Penalty Habeas Corpus is a unique problem all over the country ................... Why do we need extraordinary corrections?. . ....................................................... Criminalizing policies in America ..................................................................... Two American Revolutions in Criminal Law .........................................................

727 727 728 728 728 729 729 729 729 729

Where does this at-war-law enforcement-judge-bias to criminalize Americans citizens stem from? .. ..................................................................................................... 730

xxiv

Upholding the U.S. Constitution — whose job is it anyway?...................................... 730

§131 ACTUAL INNOCENCE APPEAL............................................................................. 733 The Loss of Habeas Corpus. . .................................................................. 733 §132 THE MORAL PREMISE.. ...................................................................................... 735 Judeo-Christian Heritage . . ............................................................................. 735 Message Number One — There is only one God..................................................... 736 Message Number Two — The One true God is a just God.......................................... 736 Message Number Three — The One true God is a just God, who loves and forgives always.. 736 Message Number Four — God is the father, and each living being is equally precious as the child of God.. . ............................................................................................. 736 What role does personal moral value play in judicial decision-making?........................ 737 Do appeals count at monitoring for quality control? .............................................. 737 Catholics Call It Confession ............................................................................ 738 So, what is the model of justice practiced by the Courts?......................................... 738

§133 THE COST OF LAWS IN THE U.S. ......................................................................... 739 ROI for judges? ........................................................................................... 739 §134 THE INVISIBLE HAND, THE HAND OF GOVERNMENT AND THE THIRD HAND.............. 742 EPILOGUE.. ............................................................................................................. 744 APPENDIX A NEW HAMPSHIRE CONSTITUTION (relevant excerpts) The Bill of Rights NH Constitution — PART FIRST (Part I) Part I, 72 to 82 NH Constitution — PART SECOND (Part II) NH Constitution – Judiciary Power NH Constitution – Clerks of Court NH Constitution – Encouragement of literature, etc.; control of corporations, monopolies, etc.

APPENDIX B-1 In the Eye of the Judicial Storm, Linda Kennedy, Esq.

APPENDIX B-2 The Double B Triple C Play, Linda Kennedy, Esq.

APPENDIX C The Model Code of Judicial Conduct

APPENDIX D Op Ed of Caroline Douglas, Esquire

APPENDIX E Affidavit of Court Reporter William Wojtkowski

APPENDIX F New Hampshire Premiere Magazine Justice Denied September 1994

APPENDIX G What is The Third Degree?

INDEX

xxv

TABLE OF CONTENTS

Table of Contents

INTRO

dedication

DEDICATION

This book is for my family a clan of contrarians, individualist, brave souls and patriots. We are wholeheartedly and intensely American to the core yet disillusioned with what we see, hear and experience. For my parents who together taught a whole band of children that it is not just okay, but a duty to question authority. For my son and daughter the next generation. For my sisters and brothers who have indomitable spirit and innate sense of justice. Especially Christine who read, organized, and proofread this book. Her skills and support kept me moving forward. Love between sisters is an amazing force. And for my Mother my greatest supporter, who proofread an early version of this book and convinced me this was a book that needed publishing. I also thank my opponents for every experience and learning opportunity. And lastly, my wonderful long-time friends and classmates for their gifts of trust, validation, and support. This book was hard to write. I couldn’t have done it without you.

xxvi

AUTHOR’S ACKNOWLEDGMENT

To the people who contacted me— I thank you. You are not crazy, mean-spirited, or alone. Continue to demand judicial reform. As a growing group of disenfranchised legal consumers, you may be justifiably angry over your courtroom experiences. The discrepancy between your pre-court idea of justice and your actual experience may be part of a greater institutional breach of trust. If so, it is un-American. The anecdotes and cases mentioned in this book are true. No people are made up. They are but a small sampling of judicial misconduct existing across the country. Examples are intended to demonstrate varied ways judges instigate and fail to control unfair process and outcomes—intentionally or otherwise. The examples demonstrate not only a present need for critical national examination of judge functioning, but external study of the efficacy of internal selfoversight. Whether the court does this or citizens do it is not my call. My work is that of an author-messenger. I expect judicial reform needs to be a product of both—and with a unity of effort. Currently, bad behavior by judges is widespread and largely uncorrectable. Unfair case results are even harder to undo. The unfair impact on the personal lives of litigants is untold. It is unwarranted and tragic. But as this book attests, it is not un-noticed.

xxvii

INTRO

Author’s acknowledgment

INTRO

Author’s Note — My Goal

AUTHOR’S NOTE — MY GOAL

This book is about judicial manipulation. Overall it is a road-map for lay people to observe judges in court. It teaches ordinary people how to translate signs and signals in a largely secret system. I learned the code from reviewing and deconstructing hundreds of case outcomes, where people felt cheated in court, but didn’t understand exactly how it happened. Those who shared stories with me, most suffered irreparably from in-court losses, but they also had a profound loss of innocence and loss of trust in a basic government institution. As an attorney in 1997, I began consciously identifying patterns of judge abuse in court. I testified in legislative hearings-– as an experienced family lawyer—about what I saw and heard. At the time, the New Hampshire State legislators were struggling to make sense about how to address and correct a flood of complaints received from citizens about judges. People disgruntled over experiences in court. I made it my work to attend legislative investigative hearings on the Judge Fairbanks corruption case, and hearings on proposed changes to the state constitution to rein in courts. I also attended investigative hearings about impeachment of state Supreme Court judges. I collected anecdotes and documentation from people who often were surprised to find an attorney willing to listen to their complaints about judges. I found I was an anomaly in my profession: there are few within the system, who understand and acknowledge that the court system is deeply flawed, and the perils of judges who work lifetime jobs without oversight. There is no institutional incentive to reform, and a lot of reasons to maintain their status quo. Individual attorneys who seek reform are perceived as dangerous heretics in the eyes of judges. They are overly-occupied with maintaining security of the fortress. It will take an educated public to demand reform. It is my goal to stimulate citizen study groups, concerned citizen discourse, and help policy-makers understand better the complicated issues in judicial abuse reform. After I began to speak out publicly, I was flooded with calls from angry disillusioned ordinary people. I struggled to support a law practice under the weight of divorce court and bar association rulings designed to put me out of business. There also was an avalanche of professional conduct complaints against me, filed within a short time, seemingly by unrelated people. Finally I stopped feeling ashamed and recognized the hardball litigation tactics utilized by powerful court insiders. Eventually, my law practice succumbed to financial, physical and emotional stresses generated by the mountains of litigation I faced. Still people continued to contact me, sharing similar experiences, complaining about individual judges. I feel outraged that the legal system we Americans trust to do good has been hijacked by forces I can only label as evil. If judges bully some to favor others, it means they fail to protect those who are supposed to be protected. Like a playground seesaw, you can’t help one side, without taking from the other. I used to believe court was the last stronghold of protection for poorer, weaker members of society. If the balance of power is unbalanced, what is left? Now I think it is important to teach other people how to stand up for themselves. So I share examples, including some of my own personally painful stories in the hopes that these experiences illuminate and raise questions about widespread secret practices of judges. This is a book that requires thinking. I tried to make it interesting, yet respectful of those already brutalized by the legal system. Review the Table of Contents before you start reading to see what’s ahead. Understanding the different kinds of thinking in courtrooms is key to deconstructing complex and hidden factors affecting the case outcome. Almost all judges think differently from ordinary people. The book also has homework designed to unlock alternative thinking. No one has to believe me – just keep reading and decide for yourself later. I’m merely the messenger. Stories told to me fell naturally into eight categories. Those are the eight chapters. Many judge mistakes stem from ethical lapses or error, which is often ego-based. These mistakes are not made out of ignorance. It’s not something judges can take a refresher CLE course to fix. I found that when I insisted on my right to a non-conflicted (ethical) judge, for almost every case, there will be severe retaliation. Judges punish those who try to obtain fairness. (They see it as an insult to imperial authority.) I am a part of a backlash in America against a privitized system of justice. I think because of the Declaration of Independence, justice should be generic. Personally

xxviii

and professionally as a lawyer, I find judges operate unfairly. Within the legal system, powerful disincentives prevent attorneys from complaining about unfairness in court. It is the modern heresy. As a result, clients suffer. The anecdotes and cases in this book are all true. They are but a small sampling of judicial misconduct in every forum nationwide. Whether intentional or otherwise, judges are often improperly influencing case outcomes. This bad behavior is largely uncorrectable. This is also in recognition of the numerous unfounded but creative professional conduct complaints I endured, since beginning my advocacy as a judge critic. As to the underlying assumption that I am unprofessional because I publicly criticize and fail to uphold the integrity of judges, I find I have a higher ethic in law and life, to expose what I know, regardless of criticism returned or threats against me. It was ironic - I had to go to the edge to find my true center. The problems demonstrated in this book are too great for any single lawyer or individual to undertake to correct. So my intention in writing is to illuminate that which is secret. I pray that by educating court users about symptoms and behaviors, many people together can create a consumer demand for higher, more ethical standards of behavior for judges. This book is not designed to fix court problems, but to identify them to stimulate ideas for reform. Not every judge is corrupt. Not every corrupted judge is corrupted in every case. But the inability of judges to self-police bad behaviors requires individuals to learn how to protect themselves. Caroline Douglas, 1999 carolinegdouglas@gmail.com

xxix

INTRO

Author’s Note — My Goal

xxx

INTRO

CHAPTER ONE — THE CULTURE OF MODERN JUDGES RELATIVE DEVELOPMENTS IN THE AMERICAN LEGAL SYSTEM §1

THE COURT IS LIKE A COUNTRY CLUB

§2

COUNTRY CLUB RULES

§3

BEGINNING LAWYER

§4

MEMBERSHIP IN A BAR

§5

THE UNAUTHORIZED PRACTICE OF LAW COMMITTEE

§6

JUDGES ARE A SECRET ELITE

§7

CALVINIST ROOTS

§8

FIEFDOMS OF POWER AND TRAPPINGS OF AUTHORITY

§9

SOCIAL CONDITIONS IN 1955 AND JUDICIAL CONFORMITY

§10 DECONSTRUCTION OF ONE STATE COURT’S JUDICIAL POWER GRAB OVER LAWYERS §11

THE OL’BOY NETWORK

§12

WOMEN AS OL’BOYS

§13

THE EX-WIVES OF JUDGES CLUB

§14

OTHER GENDER-BASED ISSUES

§15 TRUST §16

SPECIAL TREATMENT

§17 COMPASSION §18

THE COURT’S PRIVATIZATION OF MORALITY

§19

DEFECTIVE BUILDING BLOCKS

1

TABLE OF CONTENTS

CHAPTER ONE: TABLE OF CONTENTS

CHAPTER

Chapter One — The Culture of Modern Judges

1 THE COURT IS LIKE A COUNTRY CLUB

§

1

Courts are run like country clubs, with dues, rules, privileges and perks for members. I grew up in a country club environment. My nine siblings and I grew up in an 18-room home with big grassy yard, surrounded by enormous oak trees and backed up to the Dayton Country Club. The country club was both a playground and an extension of family social life. As children roamed over the golf course, built forts, sledded its hills and dales, and swam and raced at the pool. We played tennis, golf and bridge, went to confession on Saturday and church on Sunday. My father was a doctor, my mother active in the League of Women Voters. My parents considered themselves good, patriotic citizens, focused on raising reliant, respectful children. We didn’t consider ourselves rich, but didn’t have a reference for what it meant to be poor either. We had a black maid named Ebenezer who we loved dearly. We called her Al. The school system was white, as was the entire community. I heard about one divorce my whole childhood. Minorities were welcome, but we knew them as cooks and housekeepers. Everyone understood his or her role. In the decade following 1950, the small professional community of Oakwood Ohio was a place where families embraced the stereotype of the American Dream. My social parents were proud of all ten children, so when company showed up, we knew how to greet their friends. Children were shown off, but didn’t stay or converse. Our respectful manners proved my parent’s worthiness. Every day, first through twelfth grades, we walked a mile to school. We played with neighboring children unsupervised until dark. Oakwood felt safe. School, church and the Country Club were our anchors. Applying for membership at the Dayton Country Club meant finding a sponsoring member, who vouched for my parent’s worthiness. Basically, we had to be referred by several existing members, then interviewed, screened and finally accepted — probably based on credit worthiness, stature in society and reputation. Being accepted meant we were approved and likely admired. In 1966 I graduated with a group of friends who were secure enough to think we could change things. Make the world a better place. We went to college believing in things American with unquestioning trust,1 an outcome I suspect of my stratified country club beginning. What does this have to do with anything you might ask? In America, our current court system operates much like a country club.

There is the structure of the club itself — the building, foundation, walls, plumbing and wiring. The structure is analogous to the historic framework of law. Add the wallpaper, paint, furniture, people, their vanity and tastes, and it becomes more than just a structure. The trappings of law, like additions to structure, take on a force that has a social effect far beyond mere elements of a building or institution. The underlying question — is it appropriate for a country club to administer justice for America — is one readers are challenged to answer — each for themselves. This book is an analysis, explanation, and critique about the structure of law and judicial authority from the viewpoint of a disenfranchised legal writer and critic. This book traces the genesis of current defects in the legal system — to what I believe has become the evolution of American law into the elitism of a country club. The book explores the meaning of justice, and the injustices that routinely happen in the name of justice. It describes the functioning and processes of courts, and it offers insights into how ordinary people can protect themselves in a highly flawed and unaccountable judicial system. After an opening chapter on background, this book is organized into seven succeeding chapters. Each deconstructs a different area of court or trial process. Each describes ways individual judges manipulated the system for economic development and self-interest, resulting in unjust outcomes for ordinary people in court.

1

“To be an American is of itself almost a moral condition, and education, and a career.” Harvard professor George Santayana, Character and Opinion in the United States — a collection of essays and lectures featuring impressions of American national character (1920). As quoted in The American Mind, by Henry Steele Commager, Yale University Press (1950).

2

§1 The Court is Like a Country Club

If you are reading this book, you may have been a victim of a judge’s abuse of power. If you think that is absurd, (or that pointing out latent defects in the legal system is disrespectful) this probably isn’t the book for you.

The ‘ordinaries’ in modern society2 have become criminalized, regulated and incarcerated at an unprecedented rate over the last two generations. Families are routinely decimated, impoverished, and left to social welfare and the charity of others. Case outcomes are unreliable and unpredictable. An expansion in judicial activism parallels the growth of a large body of secret-judge-practices. For non-obvious reasons, these changes to the Third Branch of Government occurred without much fanfare or public awareness. Judge-made changes to the American legal system are secret, deliberately kept under-the-radar of public scrutiny. Patterns in illegitimate judge rulings are obscured, by methods detectible only by someone well-versed in law. The court system operates to prevent members from disclosing how and why judge usurpation occurred throughout the court system, and from making negative public criticism of individual judges and illegitimate rulings. Those who do risk retaliation and worse. Separate judge abuses can appear tedious, boring and without a discernable pattern. This book links together individual acts, much like squares in a patchwork quilt. When the final quilt is assembled and put on display, the aggregate design and pattern become apparent. Judges have departed from traditional judging functions, and now use judge-made law and personal power practices to unfairly skew case outcomes. Collectively, those acts constitute a massive change in what is fair or just. Court Country Club hierarchy. The legal country club is comprised of leaders (judges) and members (attorneys). All attorneys must be members. In the last generation, law school graduation is a prerequisite — to practice law, all grads must not only pass a bar, but be accepted for club (state bar) membership. In return, most receive a variety of social, economic and occupational benefits. Benefits dispensed by leadership to proven and worthy members. There are unprinted rules of conduct for members and loyalty is paramount. Leaders quietly punish members who do not respect them according to secret rules. I found this out a hard way –by not understanding that club rules superseded everything else, including loyalty to the Constitution. My experiences and research in modern court practices demonstrates a highly skewed economic and social elitism in American courts. The club muzzles lawyers from writing and speaking criticism of judges. The justification can be any number of variations on the same theme — that ordinary people have to obey and have the highest respect for judges no matter what (or else the system will collapse.) Lawyers are the most knowledgeable people to view and interpret hidden and unfair changes in court practices. But lawyer criticism is viewed as member disloyalty and it provokes retaliation. There is little general awareness or understanding of how this came about — how a small group of self-serving baby-boomer elitists usurped national Constitutional power and made a whole branch of government into a private club. Public perception does not comprehend that judges evolved out of a non-democratic process that systematically cast aside basic individual freedoms. Ordinary citizens clutching pocket copies of the Constitution may become aware that something is amiss in court — but only after they find they need to assert and rely on a fundamental right. The right somehow is not accessible in the new court practice system. For example, routinely Americans are unable to access habeus corpus3 or First Amendment rights, property rights, or civil rights in court. They are told that they lack standing to sue and are denied entrance to the courthouse. Basic rights have been reduced to mere words on old historic documents, without true access in modern courts. Across America, judge practices and judge-made laws have taken tiny nibbles to subvert the Constitutional liberties of citizens.

2

I use the term ‘ordinaries’ in reference to the 99.997% of the 322,267,564 people in America in 2015, who are not lawyers or judges. Also used are other terms, such as non-club members, outsiders or other references to those not privy to the economic and social benefits of this exclusive court country club.

3

Habeas corpus is an ancient legal concept. Literally, it means “give me the body” and it represents a citizen’s right to petition the court to be released from illegal detention and confinement (usually prison), when certain fundament civil rights practices were not followed by the government.

3

§ 1

CHAPTER

Chapter One — The Culture of Modern Judges

1

Another problem is a lack of even-handed administration in court. Judges routinely give quiet preference to insiders, ignore law and rules, and use judge power personally for their own private agendas. Modern judge-made rules and law represent judicial power grabbing that runs a spectrum from invasion of privacy to altering the food chain. Judges rationalize their decisions, but their self-serving denials are often a token of loyalty to the political power amassed by the club itself. Institutional power grabbing begins with (and relies on) hidden influences and behaviors of individual judges — largely unelected officials who through the exercise of personal power, created a massive undemocratic collective change across our social structure. The country club court atmosphere implicitly prevents a thorough study of these judge behaviors. By critically observing individual judge acts and comprehensively reporting them, a different view of the legal system emerges. Over the last half century, the last branch of government has systematically exercised a radical usurpation of political power, taking away social power and authority granted to the other two branches. The conversion of political power over to the Third Branch of Government largely has evaded public scrutiny, despite its radical nature. To the extent the institutional changes subvert the United States Constitution, there is no place where judges are held unaccountable. Citizens simplistically expect courts to be the one place where they can challenge, correct, and uphold individual freedoms — a forum where anyone, regardless of social status or money, can go for justice. So this transfer of unchecked power over to judges could be the quietest revolution of modern time. For this book, the powerful in this club are called Insiders or Ol’Boys. If a club member is very connected, privileged and influential, I may refer to him using both terms (Insider and Ol’Boy — capitalized or not).4 What are not capitalized in this club — are common people, outsiders, most court users and club insider/member whistleblowers. The latter categories of people referred to as ‘non-insiders’, will always be described in this book in lower case, as a reflection of how they rank in court compared to insider/members. ‘Outsiders’ are not as important as club members — except for the money they represent to the club. While a regular country club operates on member dues and money, the court country club runs primarily on non-member money. Courts use public funds, non-insider funds and court-user funds. The bar arm of this club uses member dues and other coerced income streams. This book explores both a lack of accountability and return on investment on the use of outsider funds. The cases are real. The people are real. Some names are modified to protect people who have already suffered greatly. As ever in my writing,5 I strive for accuracy in reporting.6 The opinions are my own based on twenty plus years of reporting law cases for legal publishers.

4

Capitalized, the words Ol’Boys or Ol’boys indicates high-influence Country Club Insiders; lower case indicates the ol’boys are usually aspiring but lower-status club members.

5

I have authored, drafted and co-written numerous legal treatises for major legal publishers including Equity, Thompson, Butterworth, Matthew Bender and Lexis-Nexis. This is my first independent treatise.

6

The adage, it takes a master to present a complex subject simply is never more true than in explanations about law — which is naturally obtuse, deliberately convoluted, inherently long-winded, and almost never simple.

4

§2 Country Club Rules

2

§

COUNTRY CLUB RULES

Private Club Rules and Responsibilities 1. Members pledge their first allegiance to judges. 2. Members pay dues and all financial obligations promptly. 3. Members volunteer assistance to insiders over outsiders, and may expect reciprocity eventually: a favor begets a reciprocal obligation. 4. Rules and favors are not recorded or written down. 5. Learn conformity; do not dissent outside the club; practice loyalty to those who feed, support and refer cases to you. All people who function with any part of the court system are to treat all judges as their bosses. 6. Maintain and support club exclusivity. 7. Keep club business within the clubhouse. This means no whistle blowing, public criticism or complaints. 8. Speak nicely to other members — practice unnatural civility in the face of adversity. 9. There is an honor code for members, but this code is secret.

Court Rules (not to be mistaken for enacted public laws or statutes) are so important in the current legal system that much is devoted to this subject. These are a set of judge-made mandatory court practices, printed into law binders, usually providing procedural and administrative provisions for the conduct of business with the court. They establish deadlines, formats, and procedures to provide uniformity in how cases are administered. They are available for public viewing. Court rules are applied to defeat not only legislative statutes, but also Constitutional rights. Generally, the Club asserts that their court-rules exist to protect people and create uniformity and predictability in case outcomes, but practically speaking, in court, the rules are utilized (or ignored) to provide judicial assistance to favor an Insider (or sometimes to punish someone) through a series of small judicial acts assisting one party over the other. In this way, judges can use judicial authority to tip the balance in a case, to facilitate a privately desired outcome. (Even when the outcome defies established law.) Judges can do this in part by manipulating their own court rules. However, country club court rules are different. These are secret rationalizations or excuses allowing special treatment for judges and insider members. As an ordinary lawyer, I had no idea the ‘private club rules’ listed above in the box even existed, although in hindsight, I suspect I sometimes benefitted from them after my marriage to a former state Supreme Court judge. Club/court practices are private and unprinted. They have the force of ‘rules’. As judicial practices, they fall into traceable patterns of unethical judicial behavior. One example is a general bias against people in court not represented by lawyers.7 This book describes approximately 120 examples. Inconsistency. Intended or unintended, a judge’s inconsistent application of an informal rule is used to skew otherwise predictable case outcomes at law. The so-called ‘private rules’ function as secret trump cards for every variety of case. Depending on which club members are involved in the case, (and what favors those members have accrued over their legal careers) members win rulings and cases because of secret rules. Judges also use the private rules as a stick, to punish members who do not unquestioningly follow other judge-made rulings. Everyone avoids calling it bias. One example of this club rule is — an attorney is to avoid criticizing a judge’s ruling. Although the club rule treats all criticism as a breach of etiquette, this rule serves to protect a judge who may be engaged in biased acts of judicial favoritism. As in all clubs, court club members have similar educational backgrounds, and frequently, similar social and cultural backgrounds. Until the late 1970s, (with the new focus on equal rights for blacks and women) the legal profession was largely reserved for a social aristocracy based on white race, male gender and European lineage. It is still largely 7

Pro Se is the term used for people who come to court without lawyers (who represent themselves).

5

§ 2

CHAPTER

Chapter One — The Culture of Modern Judges

1

dominated by Caucasian males with token minorities. In the face of civil rights activism in the 1980s, law school admissions cracked open just a hair, but modernly, other systemic factors are at work in every court in the country. These latent factors exclude, regulate, control, and enhance the subtle power of the rulers of the legal profession. They quietly protect the secret power amassed by club leaders. This book explains how and why this private exclusionary system works unimpeded by public observation or individual efforts to correct.

3 BEGINNING LAWYER

§

Patriotism or loyalty? I come from a long line of American patriots, traceable back to the early 1600s, when my distant ancestors arrived at Jamestown on the ship The Paul to settle the New World. Since then family stories include those of settlers from Haverhill, Massachusetts, who fought, were captured, and struggled to return during the French-Indian War. Some did, some didn’t. Each generation from the early colony wars to World War I and Vietnam, struggled and survived — fighting, serving (the United States Marine Corps) and working to build a better world for the next. So for me, swearing to uphold the United States Constitution at state and federal bar ceremonies — those were moving personal moments — natural patriotic ceremonies, linking my lawyer-work to the Bill of Rights and the rights of conscience. At the time, I never dreamed that my personal sense of morality8 and patriotism could conflict with a professional requirement of loyalty to trial judges in the courts where I worked. I was naive. At the time, I took the attorney oath of office, it was not apparent that I was giving up something fundamental to Americans — namely First Amendment Rights to speak. I thought joining a state bar was simply an employment requirement, so I complied. What I failed to understand — was once sworn as an officer of the court, I was expected to give higher allegiance to any judge, and to uphold the integrity of the court over all other personal and national loyalties. That meant foregoing my rights — to criticize or testify publicly about judges and systemic court abuse. It meant to set aside my own moral code and duty to the Constitution and Bill of Rights. I found the attorney oath meant I was ceremonially accepted to practice law, conditional to a secret loyalty code for attorneys. It was years before I pieced together the unspoken part. As a neophyte attorney in 1989, it seemed that the world recognized me for getting through law school, studying hard and passing the bar, and being accepted into several bar associations — which I assumed were qualifying registries. Wrong. I thought of my achievements as pre-qualifiers to my right to practice law — a right of personal achievement. Wrong again. I actually thought my doctorate degree in law was a property right. Still wrong again. Although I was no different than the day before my swearing-in ceremony, the world suddenly began treating me with a new kind of visible respect. People would ferret out that I was a lawyer, ask and listen to my opinions with a higher degree of interest and attention. I discovered that lawyers and judges experience the power to speak with authority and that comes with an aura of invincibility. I had no idea about club responsibilities or how a group of peers had already taken my fundamental rights. That understanding registered years later — after I began openly questioning judicial authority. Like a love affair in full bloom, in 1990, law was fun. I enjoyed the intellectual side of problem solving and am a natural advocate for the underdog. As a member of the club, status, recognition, power and more money than I had ever earned, all flowed to me without undue effort. Soon after joining the club, I married my mentor — one of the club bosses and a former judge on the state Supreme and superior courts. He topped off his state influences with a one-term elected stint in Congress as a U.S. Representative from New Hampshire.9 After that, he joined the law firm I had started, and we became partners in a boutique firm practicing family law (me) and general civil and personal injury cases (Chuck). 8

See John Leland, Rights of Conscience Inalienable, published 1791.

9

Charles Gwynne Douglas III, otherwise called “ex” or “mentor” or more commonly, “Chuck.”

6

§4 Membership in a Bar

Life was good and I loved the long hard work of mastering a relatively small body of cases recorded in the law books of a smallish state. Like a frog in a modest pond, my plan was to master and excel over the entire body of state law in the area of family law. As a couple, we played in politics and law every day. I co-hosted a weekly political talk show, and together we had many of the dreams that ambition and money provide. It would take a decade or more to learn about all the obligations and debts attached to this professional largess.

4 MEMBERSHIP IN A BAR

§

There is a common interest in maintaining the economic privilege associated with membership. Through work and law transactions, friendships frequently develop similar to close-knit societies based on kinship. Lawyers commonly refer to other lawyers as “my brother” regardless of sex), or they use the honorific as a title, Brother Jones.10 Legalese is a common exclusive language used by insiders. These phrases may be part of the American lexicon, but not readily understood by ordinary folk. Understanding is necessary to function effectively within the club. That exclusion is part of the point of using Latin terms and archaic mannerisms in court. The court culture also requires peculiar etiquette consistent with a closed group. Often lawyers affect excessive and artificially civilized behavior toward each other in the courthouse. They pay mandatory dues and professional fees to the club (court and bar associations) and those revenues solidify the guild, which works to keep out all economic competition. Law is an attorney monopoly; so it is the role of the club to engaged in war on all outside competition. War is directed at anyone who helps people go to court without a lawyer. Attorney funding enable leadership to influence members, fund insider programs, and to lobby. The system works best when it maintains conformity and control over all members. Criticism is heresy (disloyalty) and internal methods (both carrots and sticks) squelch dissent and keep members in the fold. The carrots. At a country club, hard money is never exchanged publicly, and yet it is the unspoken focus of most club activity. Chits11 are exchanged; obligations noted; benefits traded between members. Financial dealings are discreet, often masked as gentlemen’s transactions. In courts, there is no open or obvious benefit exchanged between judges and insiders. Enrichment occurs through more subtle operations of referral systems and appointments, which generate income to members. Court appointments are quietly disguised transfers of funds — from guests for members. A judge’s appointment of a lawyer into a case creates a reciprocal obligation — imperceptible in the smooth course of court business. Fees charged are maintained across the club spectrum at an exorbitant rate (under ordinary person earning standards.) This centralized control of money and rates distorts the basic functions of justice. It’s all about the money. Economic control over the administration of law became a priority to insure ongoing lucrative financial rewards for club members and a successful bar-business operation at the expense of public interests in justice. But the financial

10

Attorneys have a ‘cute’ way of referring to each other as “Brother so-and-so”. To flatter Attorney Jones in court, an opposing attorney will call him “Brother Jones.” There is no title “Sister” that parallels this. See later section called “Trappings of Court.”

11

Chits are IOUs.

7

§ 4

CHAPTER

Chapter One — The Culture of Modern Judges

1

flow of business is imperceptible to the ordinary naked eye. I was a guest at the New York Yacht Club,12 and was gently admonished that ‘business’ is never discussed there.

A CONSTITUTIONAL FIAT The pervasive clubhouse atmosphere of the legal profession came about as a result of a large-scale movement to protect all lawyers from outside competition. It blossomed nation-wide about fifty years ago. Each state experienced a related but largely outside lobbying effort to enact a unified bar, either through the courts or the legislature. Each unified bar was a monopoly under the control of state judges. Among public reasons, the quietest unspoken reason was to protect the legal profession from outside economic interference and to eliminate rate-cutting within the profession. No one talked about that reason. It was primarily billed to the public as a quality-assurance package. Thereafter, all attorneys would be required to join a central organization, which would regulate them. This public protection aspect was touted ostensibly to correct a problem with sub-standard non-lawyer representation, although there was virtually no existing problem that required protection at that time or since.

5 THE UNAUTHORIZED PRACTICE OF LAW COMMITTEE

§

For the two years I volunteered with my Bar Association Committee on the Unauthorized Practice of Law, it had virtually no complaints. The demonstrated ‘need’ for protecting the public was zero. Each state bar has a special committee to monitor outsiders to prevent them from poaching work and law fees away from lawyers. This is called the ‘unauthorized practice of law.’ Whether corporate officers or gadflies — the committee evolved to protect not only the attorney fee structure, (informally established to keep all lawyers roughly uniform and from undercutting others in the profession) but to attack and keep out anyone not accepted into the Country Club. It’s a form of protectionism and control. I was actively researching alleged ‘complaints’ by outsiders, and believe no problem exists except for the bar perception that outsiders threaten and take away lucrative attorney fees and profits. A monopoly requires protection from outsiders, and this committee is assigned to monitor and report on threats from outside competition. The special committee said it is about public safety — but this committee operates like union-enforcers against scab encroachment regarding legal service providers who are not state bar licensed attorneys. The Committee Chairman admitted the committee had only one complaint in it’s entire 10-year existence. That complaint involved a disbarred attorney who continued to use his old stationery. The work of the committee during my tenure was largely to draft a legislative proclamation praising itself. That self-proclaiming conceit died when a massive state scandal erupted over the divorce of one of the state Supreme Court judges — prompting a legislative impeachment investigation of the entire Supreme Court. The Unauthorized Practice of Law Committee members also worried about preprinted document storefronts, that might usurp lawyer business by drafting and selling blank forms, and whether or not they should sue the legal publisher Nolo Press for practicing law through popular how-to-educational books with titles like — The Idiot’s Guide to…. In New Hampshire, the judiciary first coerced membership into a court-controlled trade association (the “Unified Bar”) in 1968. Since New Hampshire became a state in 1776, and joined the Union in 1788, all lawyers had practiced freely13 up until 1968 without being made to join anything. During that 192 years, there were several voluntary bar associations, but none were well received. Now, almost two hundred years later, attorneys had to apply to the state court for admission and follow the discipline rules established for them by judges. On the surface, that sounds simple enough. There must be a good reason, right?

12

My admonishment was of the unspoken rule that gentlemen do not engage in commerce within the walls of the Club, which is a sanctuary.

13

Licensing was through the regulatory arm of the state legislature.

8

§5 The Unauthorized Practice of Law Committee

The 1968 mandate was established by court order. It ordered people practicing law within the state must be members of the unified bar. The order issued just 7 years after state legislature killed a bill with the same requirement for compulsory bar membership. Between the time the legislature killed the bar bill, and the court resurrected it as a court order, top-ranking judges sent ballots to all attorneys asking them to vote on a compulsory state bar under court authority. Most ignored the ballot. Undeterred by the disinterest (and a lack of majority outcome) the judges instigated a court case to issue their own order re-interpreting the State Constitution about ‘inherent’ powers of the court. Lo and behold, judges discovered for the first time in 192 years, that judges held constitutional authority to force attorney membership in the court club after all. They discovered it was unnecessary for judges to work through the legislature, because they discovered an inherent grant of power for the Third Branch to assume control over lawyers.14 Within five years, every state court in America (when necessary) discovered the same hidden, overlooked or implied constitutional authority. So judges promptly exercised this newly discovered power — to mandate that all attorneys had to join the court integrated bar association. And to pay dues and fees, and answer only to judge, or else they could no longer practice law. Some quit. And not incidentally, from that point on, all attorney licensing and regulation was no longer the province of any state or legislative regulatory body or authority.15 As a legislative bill drafter in 1987 to ’89, (my first job as a new attorney) I was assigned to draft all proposed legislation in the area of occupational regulation. This was simply writing the law underlying proposed licensing standards and rules for various professions to insure the health and safety of citizens. I remember drafting (and sometimes modifying) vocational requirements for estheticians and land surveyors, among others. I was perplexed as to why the State regulated, licensed, and disciplined doctors, dentists, barbers, morticians, and all other regulated professions, but not attorneys. In short, every occupational group was controlled by legislative licensing rules and regulations, except lawyers. Apparently in America, only bishops & priests and lawyers & judges regulate themselves. Not unlike the spy industry, each regulates itself internally, avoiding outside government oversight. I consulted my mentor. He claimed that when he was sitting as a Supreme Court judge, he wrote those first court rules regulating attorneys. His explanation was it was just logical for courts to regulate lawyers. His conclusory statement was unconvincing. Chuck alluded to changes in the state political power base involving a group of young attorneys who worked together in politics — especially a particular group of politically ambitious young lawyers involved at the 1974 State Constitutional Convention (called The ConCon.) This was the last ConCon held in the state, despite a Constitutional provision to vote on a convention each decade. By now, many of those same men have now become the power-players in state and national politics — and in the state bar. The rules he claimed to have written, appeared to me to be haphazard, too broad and unspecific to truly regulate anyone effectively.16 The rules lacked an index, and it was difficult to figure out what was provided (or not.) This rulebook was unlike the process the legislature used for writing regulations for all other occupations. I wondered how attorneys could know what was right or wrong? And, if everyone else in the state was legislatively licensed and regulated, why not judges and attorneys? For years, my questions went unanswered. Unanswered questions. After my would-be husband’s brush-off explanation, I set aside those questions about how judges began controlling the attorneys.17 But the questions didn’t rest in my mind — and came up over and over, as through the years, I watched judges take more power over citizens and experienced the harsh treatment of me as a critic. The unconstitutional usurpations of power through misapplying judge authority surfaced not only for the issue of which branch of government controls attorney licensing, but later in the state school and educational funding cases, and

14

The exact language and deconstruction of this illegitimate takeover is detailed later in the chapter.

15

Prior to the 1968 Order, the state legislative branch of government was responsible for testing and licensing attorneys, under State Constitutional authority to license all professions and occupations.

16

We’ll hear a lot more about those vague rules state judges wrote for others later.

17

A detailed explanation how the New Hampshire judges usurped constitutional authority over lawyers, see §10.

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Chapter One — The Culture of Modern Judges

1

also a case involving Insider-manipulation of-language for a Constitutional change. That manipulation automatically converted judge-rules into ‘real law.’ Each of these genre of cases represented a Constitutional challenge to legislative authority, and was achieved only by convoluted judicial-interpretations, back-room politics, and twisting the plain meaning of clearly written language in the state Constitution. I recognized this unconstitutional-taking process the first time I heard it in oral argument. Later, I found I could pick out that trick the instant it came out the mouth of the arguing lawyer or judge. In the first state school funding case, Assistant Attorney General Leslie Ludke made oral arguments finding school funding mandates in the Constitution. Like being in a room full of color-blind men, I could see immediately what they did not see — did not want to see — namely a bogus rationalization to legitimize an illegitimate power grab. I know, this issue probably doesn’t sound sexy or action-packed. That’s how courts get away with it over and over. Not too often. But often enough. The relative weight of each of the three branches of government has long been a dispute from a time before our country’s founding. For a great discussion about the background of the courts as the third and weakest branch of government, see a beautifully worded treatise on America’s Constitution18 by Yale Constitutional Law Professor Akil Reed Amar. The next time I recognized a judge power grab, I was personally affected. I challenged the state bar/judges about illegitimate regulation of attorney-licensing authority. I believe it indirectly affects everyone. Court club members came after me with a full legal vengeance. Court critics get hauled into court forums to be picked off and discredited one at a time. Before ordinary people can notice and begin to question or take seriously the criticism. Before it happens, the judicial critic won’t see it coming. Chuck used to call this court process The Serengeti Takedown — a reference to predatory pack animals in the African desert, chasing, then mauling and killing an injured or isolated animal. This process can move quickly against any critic, (or take years) in a series of cases instituted in the extended court/bar system. There were three separate judge efforts in New Hampshire to force attorneys join a bar association. Otherwise the attorney would have to stop practicing law. The first two political tactics failed. The ‘winning’ process is deconstructed a little later, to test the fairness of the technique used to gather all attorneys into the judicial orbit. The tactic is worth mentioning, because judges use it repeatedly in other types of important political cases. Here’s how New Hampshire judges asserted political domination over all attorneys: 1. They tried passing a bill in the legislature in the 1960s. It failed; 2. Then they tried taking a vote of the attorneys (but had no authority to require lawyers to vote); they got approval of 231 out of 730 state licensed attorneys; 3. They finally made-up a court case in 1968, so judges would have a court venue (authority) to determine and rule that what they wanted was somehow Constitutionally mandated. It all ‘sounds’ legal; I maintain it is not, and the judge-made order establishing a mandatory state bar is self-serving and an illegitimate end run around legislative authority and the state Constitution. In a 1968 Opinion of the Justices,19 the State Supreme Court judges found there was an invisible, implied, inherent constitutional authority for the third branch of government to regulate itself separately and independently from the other two branches.20 This case became the judge’s ultimate justification.21 So, by it’s own new and self-aggrandizing interpretation of the state Constitution, judges found justification to require all lawyers to join the court’s new country club or to stop practicing law.22 If they can regulate the court, judges reason, they can also regulate all the lawyers. I think this is an erroneous conclusion, and represents lawmaking by judicial fiat. I maintain it is an illegitimate use of power, and has caused a crisis in confidence, as well perpetuated an entire body of unreliable, self-interested case outcomes. 18

Akil Reed Amar, America’s Constitution A Biography. Random House, (2007).

19

In Re Unification of the New Hampshire Bar, 109 N.H. 260 (1968).

20

Be wary of the modern ‘judicial independence’ battle cry — it distorts and omits Constitutional language from which it purports to derive legitimacy.

21

Supra at n.19.

22

This was not the first attempt to take control — Roscoe Pound wrote in The Lawyer from Antiquity to Modern Times of three national attempts- one in 1788, another period in the mid 1800s, and the last began in the late 1940s.

10

§5 The Unauthorized Practice of Law Committee

Up until the time of the Unification Movement, the State regulated who qualified to practice law, and handled (legislatively) the regulation of lawyers for everything, including discipline and disbarment. To qualify, lawyers did not have to study at a formal law school, although many did. For two hundred years, lawyers were approved to practice law that had studied and worked under a more experienced lawyer (often a friend or relative) as a protégée or apprentice. They were not required to join a bar association, and most eschewed this membership. The system seemed to work well. From September 1955 through August 1956, fifty-five lawyers were disbarred in the United States — about .002% of all licensed attorneys.23 Although there are no national cumulative statistics on current attorney disbarment, it appears each state now disbars hundreds of lawyers annually, for infractions, which range from felonies to non-payment of dues. And, as we shall see — they disbar for disloyalty, for violating the judges’ club rules on allegiance to judges (even corrupted judges), for dis-respecting judges by raising questions in appeals, and for publicly criticizing the legitimacy of judge findings and rulings. Were I still a member of a bar, this book would be grounds for my disbarment.

NATIONAL BIRTH OF UNIFICATION By the early 1970s almost every state experienced a similar changeover in power. Attorneys were universally removed from the umbrella of state legislative authority and by judicial mandate were shoved into a court box — hereafter, they could only practice law under the authority of their state court judges. Some states enacted legislation, and others, like New Hampshire, by judicial fiat. Many attorneys objected. Some declined to join and quit being lawyers. This was the birth of the Unified Bar — a national lobbying movement involving, but not directly affiliated with the American Bar Association. Each state bar was separate. This book delves into what the unspoken (perhaps unexpected) result of this new trade organization and it’s influence on judges, courts, and justice. To understand and expose exactly what a unified bar means for attorneys, and for people who go to court for social and economic relief. There has been a profound impact not only on the cost of litigation, but outcome. I use my case throughout as a working example because I know it intimately and because real life examples are necessary to demonstrate what is not reported in case summaries and court records. The first chapter is background — essential to answer the overriding question of why a book like this came into being. How did judicial abuse became commonplace in cases where ordinary people wind up in court? Only by understanding the underlying influence of a well-funded industry-wide monopoly can citizens begin to understand how that corporate influence affects not just individual cases, but the Constitutional core of an entire branch of government. Although cash motivates lawyers, it is not the currency of judge power. Money influences — and the ability to assign income to members is important. But along with the flow of money, it is increasingly the usurpation of legislative power, which is the stimulus for the highest-level judges and bar-leaders. The power of judges to re-order enormous social change. From a small example in New Hampshire, (we will deconstruct that process shortly) the unification movement grew across the country, until finally, all lawyers nationwide fell under the power and influence of their respective state court judges. In turn, judges used this united power to fashion court rules that effectively permitted assumption of total control over the law system. Judges created a powerful authoritative atmosphere of subservience, while functioning to honor its leaders, establish lucrative fee schedules, eliminate fee cutting, take control of all lawyers, generate a quiet system of institutional favors, and control and eliminate internal and external criticism and lawyer free speech. The judge-police of the new system operate separate and apart from the ‘other’ regulatory authority of the legislature. Here, regulators are judges. They police themselves and other club members through a closed process, free from any outside interference. Entirely self-regulating, they operate without independent audit or external oversight. Members are required to respect and uphold the status quo, and to practice unwritten rules of membership. In exchange, they can expect financial rewards — granted by leadership and other members, but paid by non-members. It is a neat, efficient system for the self-support and aggrandizement of those in charge, and for the rest of us, it largely sucks.

23

American Bar Association Journal, February 1958, at p. 126, New Hampshire Bar Journal, Vol.1.

11

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Chapter One — The Culture of Modern Judges

1

“It’s management culture [is] confident, cutthroat and insular”24

At the root of contemporary corruptive court practices is this new kind of quasi-government system that functions as a closed and secret system of influence trading. As elevated members of the Country Club, judges are in positions of power over members and ordinary people. Members often aspire to leadership, which in turn translates into increased personal power — just like any other club. Leadership positions come with both perks, obligations, and increases in personal power, but with reciprocal bonds, and a requirement to give favors back to select members. Members feel more compliant and less likely to speak out about abusive practices of leadership, when their livelihood depends on judicial favors. Judges hold double reins of power that encourages members to cooperate with the system and discourages rebellion. Less than a decade after this new system went into effect, judges realized they had no oversight. The system now permeates the legal process with self-interest and is tacitly supported by attorneys who find it expedient to avoid criticizing the judge, instead of experiencing retaliation. Like biting the hand that feeds, attorneys have a strong incentive not to notice or report judicial misconduct. Self-regulation is the mantle that allows judges and lawyers to take advantage of a network of special relationships. If members get special treatment from judges, judges receive immunity from exposure. Judges give special treatment and quiet favors daily to members across the nation, in courts of all ranks. All of this favor trading goes on below the surface. Often, it is a simple matter of a judge failing to apply the published court rules and standard procedures in any given case or against one party. So if you don’t know the rules, you probably will never notice the omission. Courts figure that since they made the rules, they can set them aside, (or apply them only to one side) when they choose. For example, if a rule requires each side to submit a financial affidavit to the other side and to the court, at least ten days in advance of any hearing on support, a judge really has no discretion to not follow the rule. But they make lopsided exceptions all the time. Exceptions have become the norm.

COURT RULES ARE LIMITS ON A JUDGE’S DISCRETION It is a serious problem in divorce not to get the other side’s financials on time, or not at all. The financial-affidavit exchange rule was made to avoid ambush in financial disclosures in family law cases. When non-disclosure is tolerated or overlooked by the judge, it becomes a litigation strategy by sophisticated parties with assets to hide. The weaker party has no trouble disclosing their lack of assets, but a stronger party (in control or hiding assets) has every reason not to make a timely disclosure. To protect the party needing protection, there should be strict application of the rule. However, often this doesn’t happen. And there is no correction — no negative result to either the judge who refuses to enforce the law, or for the party hiding assets. Each special treatment — or failure to adhere to a court rule — is a judicial act — doled out quietly by the judge. It is an act of omission, so may seem like a small favor — not worth objecting to. What’s the harm? It’s a tiny thing in the overall process. Almost no harm at all is often the implication, if the other party should raise an objection. Individually and cumulatively however, this pattern works to weaken the legislative plan for protecting weaker parties in court. The judge-favor pattern becomes one of death by a thousand cuts. Fault-based divorce is one example of a statute that state judges almost universally refuse to enforce.25 Regardless of legislative mandates, judges shun adultery and other morality-based charges, and patently refuse to permit parties to proceed with a divorce on any grounds except no-fault. Judges threaten to punish attorneys and parties who file faultbased divorce petitions. Judges tell attorneys that if they pursue fault grounds, they will be sanctioned and will lose the case. So you end up telling your client, yeah, that’s the law, but this judge says we can’t bring it or we’ll lose. 24

A phrase by Jack Ewing and Graham Bowley describing the “aggressive ambition” of management at Volkswagen and a global conspiracy to cheat on emission reporting. The New York Times, December 14, 2015. The description applies equally to the culture of judges.

25

For a highly readable, detailed history of problems the court faced prior to enacting no-fault, see Instant Divorce, by nationally noted matrimonial lawyer, Stanley Rosenblatt, Award Books, 1970 (now out of print). See also his out-of-box analysis of court-created legal requirements, which required parties to lie to obtain a divorce prior to the passage of no-fault laws.

12

§5 The Unauthorized Practice of Law Committee

Overall, judges in these cases avoid looking at the big picture: monkeying around with the law by granting small favors to insiders seems innocuous, if you don’t look too carefully. The laws argued and passed by the legislative process (i.e., statutory law) too often have become secondary to the informal, secretive court practices provided to members. Sometimes rules are violated; other times, just bent. Often, a judge-favor is palmed off as just an act of judicial discretion. When this comes from bias, or goes beyond the letter and rule of law, it is unlawful. By a series of quiet favors to one side in a case, judges are able evade the overall protections that the legislature intentionally builds into laws to protect inherently weaker parties (as a matter of law.) So a pattern of small and large favors undermines fundamental rights as well. In this way, the legal system elevates the power of private personal relationships higher than common legal rights. Lawyers don’t talk about it. The media ignores it. The bar association works to suppress it. Legal consumers don’t understand it.

Care and feeding of lawyers is the economic concern that underpins all facets of the legal structure. Legal services, which fail to generate bounty but must otherwise be provided by the club, (for example, legal aid clinics and pro bono work) get relegated to stepsister positions in the power chain. Judges further control both direct and indirect court funding — not only by maintaining minimum fees for attorneys, but through staff salaries, court collections, dues and assessments, and state and federally sourced funds. So judges play major roles for generating member income and revenues, and in prohibiting competition and protecting bar members from outside encroachment. A hundred thousand law students graduate each year, flowing into a social structure, which increasingly encourages people to take their problems to court to solve harm, injustice, and inequities. Americans have been encouraged to be the most litigious society in the world. The chance of any single American dying without at least one contact with the court system is small.

CLIENTS AS LEGAL CONSUMERS I refer to legal consumers as the guests at the Country Club, but they deserve greater focus. The role of non-membersguests is to pay. In exchange for payment, guests get legal process — which is not to be confused with a search for Lady Justice. The cost of litigation is an increasing spiral, caused by numerous factors: Judges often appoint a variety of extra legal personnel — legal professionals to serve as experts, guardians, etc. to perform collateral roles, for which the outsider-guests must ultimately pay. Hourly rates for lawyers are extreme–hundreds of dollars an hour. These rates bear no relationship to the knowledge or the service provided or to the benefit conferred on the client. There are no free-market or discounted hourly rates for lawyers, and in many cases, no flat rate billing allowed. Whether it is $150 or $750 an hour, there are no low-cost or free lawyers. Price-cutting is prohibited, and outside competition illegal. The litigation process is extended indefinitely because consumers assume there is a level playing field, (fairness) when in fact, the primary impetus is for judges to keep generating attorney fees. Judges usually don’t care how or where clients get funds to pay lawyers — they avoid controlling and limiting attorney costs, and there is no relationship between the legal bills and what is affordable. Rare is a judge who understands or cares that clients who earn $10 or $20 or $50 an hour, cannot afford to pay 10 to 50 times that rate for legal help.26 The economic life and means of ordinary people is of no or little regard to them. 26

The average American earns $25/hour; the average law firm, $342/hour. Mary Lynn Schiavi, Princeton TV, September 8, 2015. http://www.youtube. com/prosenation

13

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1

Implementing a legal monopoly created a voracious system where legal consumers are a kind of billable fodder. The cycle requires more and more cases to support an increased greed-need. The sheer volume has led to a failure to treat clients as individual customers of legal services, many who are in personal crisis — or they wouldn’t be in court. Customers should be accorded a fair return for funds spent on the process. That doesn’t mean winning. It means efficiency, fairness, and avoidance of churning the process generating more legal fees. Clients have almost no way of controlling litigation costs — and judges run up unnecessary and extraneous legal bills with impunity — by serial delays, by special appointments, by ordering other costs that a client has no control over — even if they object to the expenditure or cost. People who consume legal services are in courts on both voluntary and involuntary basis. Both types generally pay handsomely for the encounter. It is not uncommon to feel snared in the legal process, with no way out. As a party to a lawsuit or a defendant in a criminal case, one cannot refuse to participate. Coming or going, often the hired and paid players are the only financial winners. Nowhere have I found a legal institution concerned with client return on investment (ROI). For most other life expenditures of this size and caliber, people expect to get good measure for their investment — something calculable and of benefit, usually measurable in a cost-benefit analysis sort of way. Here, judges have no sensitivity or even any apparent concern about overall fiscal and social responsibility involved. There is no duty to use guest resources wisely or to prevent runaway case costs. This lack of interest looks like exploitation for those who use courts, especially as defendants. It’s bad enough to pay for attorney bills and litigation costs when you initiate a court case, but plaintiffs who start the case have a choice. Initiating a court case, they have at least some anticipation of the dollar cost and a general idea of the resources needed to win. However defendants who have no choice over being sued, are forced to pay lawyers and costs far exceeding the ability to pay or an expected return. Litigants may find they also are assessed exorbitant fees also for ‘other’ professional or semi-professional services they didn’t want, and can be ordered to pay third parties appointed by the judge, even when they believe the third parties are incompetent, unqualified or biased. Why would you pay for such bad service? Sometimes, the best outcome is just a return to the old status quo. Getting back to where you began (minus the money you spent on legal fees) is a poor reward for depleting one’s life savings. If getting out of jail or clearing your name is the most you can win — then the cost of defense has no up side — no positive win. If the case is about getting back a child taken, or to recover property you already own, the costs of going to court can seem immoral — like paying a ransom. When what is at stake is high, (for example, a life or imprisonment) the cost of going to court, even if far beyond your means, becomes too important not to fight with all the resources you can muster. Spending for a lawyer seems like an imperative.

OUTSIDE PROFESSIONALS IN COURT Judges control a burgeoning industry in court-appointments. These case helpers may be guardians, attorneys, accountants, doctors, appraisers, consultants, and others who are appointed into the case to interview, test, investigate, report, make recommendations, and essentially decide the facts and truth of a case, for the aid of the judge. Their services are expensive. One or both parties must pay. The appointees are named and/or approved by the judge. This practice turns ordinary trials into inordinately expensive extended cases.

If up against a powerful or institutional opponent with stronger or unlimited legal resources, going to court can wipe out a family’s entire asset base. My experience is court costs are the largest expenditure of my lifetime — larger than the cost of college or any house. Often, even a win is really an economic loss. Whichever side wins, the results are economically ruinous for everyone except attorneys. There are many disheartening cases like these, where the only winner are lawyers. Judges are increasingly to blame in these kinds of cases — where people get trapped in the expense of going to court. They fear if they don’t spend — no matter what the expense charged by the lawyers — then they cannot win 14

§6 Judges Are A Secret Elite

and justice will not prevail. It is an economic trap, no matter what the outcome. If the Insider system is rigged for that party to fail because an Insider is secretly preprogrammed to win, then the duped client will probably never understand the economics — in some cases, club Insiders and members win, no matter what evidence or testimony is presented. My work experience was largely in family law cases, where expert costs often spiraled beyond reason, especially for custody cases. The emotional bond to a child is hard to quantify in dollars, and litigants themselves may be in a race to match or offset experts on the other side. Or the parent may object to the costs for judge-ordered state services (foster care, for example.) A law guardian may be assigned by a judge to determine facts or make judgments in place of the judge. Judges are “free” but these substitute judges are not. Regardless of how, judges consistently fail to manage cases in a fiscally responsible manner, and it is an enormous problem that highlights the selfish and self-serving aspects of judicial administration. It puts the economic interests of the law profession far ahead of the interests of the people being served. Service is an old-fashioned term that has small relevance to club insiders. This is not to disparage attorneys who attempt to provide affordable, caring service, but the wave of modern litigation methods have established controlled pricing, excessive (computerized) paperwork, minimum hourly billing, and it rewards attorneys who delay and churn cases. This results in overall economic case costs that routinely spiral out-of-control. My belief is the modern system is an economic trap, which acts to transfer individual outsider wealth over to the pockets of the club members. Hiring an attorney may seem unavoidable — with litigation costs that are uncontrollable. Often this arises just after a time of great personal conflict and stress. Normal clients are reluctant to question judicial orders about the need for and the hourly price of such extra services. The other phenomenon that supports my observation, is how often attorneys quit, (and judges permit them to quit during cases) after a party simply runs out of money. If the client can’t pay, most judges automatically release the attorney from further involvement. Institutional bans on flat or fixed fee pricing (in a wide variety of cases) further contributes to this fleecing phenomenon. Outsiders simply have no real opportunity to review how courts economically run cases. Large professional service bills, paid to various club members, ordered and approved by the judge, are standard. Courts virtually ignore the wishes and resources of the parties, or client discretion in paying, and whether or not a fair value is exchanged. The judge may either encourage or fail to control what is clearly a financial fiasco for the parties. Even if all parties can afford the litigation, the overall purchase price for legal services often far outweighs its relative social value. There is no look-back in the legal system — to see the results (or value) clients received-for-money-spent was a good investment. Moral impact issues, (like the effects of the legal monopoly on pricing or how cost denies access to legal services) simply have no audience or relevance in the new court country club.

6 JUDGES ARE A SECRET ELITE

§

If you are a typical American, chances are you believe lawyers are corrupt, manipulative and greedy. If you have a court experience, you also believe the cost was excessive, the delays unwarranted, and the outcome poor.27 Specifically, lawyers – Fail to adequately police themselves, Charge excessive fees, Don’t explain fees up front, Have too many delays, Provide unsatisfactory results, Are disdainful of the idea that the public has any role in overseeing them.

27

American Bar Association conducts regular Consumer Survey about what the public thinks of judges, lawyers, doctors, Congress, the executive branch and the media. Focus groups from Boston, Birmingham, Chicago, Dallas and LA all stated the legal profession is manipulative, corrupt, greedy. The ABA reported a general lack of confidence in the legal profession.

15

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Chapter One — The Culture of Modern Judges

So what else is new? Judges are new.

1

At the root of fundamental corruptive court practices is a new kind of judge. Under the new national brotherhood, judges quickly learn their role comes with private perks, personal power and a quiet ability to favor or punish people at whim. Whether by election or appointment, judges now leverage judicial power under a widespread secret system of influence trading that subverts law. The secret practices described in this book grew more over the last half century than at earlier times in our country, because of the institutional reorganization of the American legal system in 1960s and 70s. The new system usurped power from the other two branches of government and created a cozy cover for judges. After a half century of judicial management of the courts, the court system has become an incubator for judicial corruption. Under the usurped authority of the re-organized court system, judges realized there is no real oversight of their in-court activities and rulings. Generally, they can act with impunity in the courtroom, and no discipline or negative results follow. Regardless of what a judge might do or say, he will not lose his job, be censured, fined, sued or corrected. The worst a judge has come to expect is reversal on appeal and that is rare and unlikely. Even with reversal, judicial misconduct is ordinarily not a basis for retrial. A losing party simply has no recourse for bad judging.

SECRECY I have a beef with all the secrecy judges require for themselves. It’s part of that elitism — they get to work and no one gets to see them work, review their work, challenge their work, see their complaints, know their complaints, or challenge their complaints. What other profession gets such secrecy — spies and priests? Do you trust them? No. No one trusts the FBI, CIA, NSA, Homeland Security (DLS), or the Catholic Church. Judges are in bad company. This new bar/ court institution developed a net of secrecy around many administrative court processes, judge decisions, discipline, and case reviews. Judges spent a great deal of effort the last twenty years explaining how independent they are as a branch of government, and that the legislature can’t look at anything except a lump sum of the total judges salaries in state budgets. They are bossy and demanding that their secrets are their secrets and no one is allowed to look because they said so. And they claim they are ‘supreme’ so they can’t be challenged for what they decide! It appears that the judges’ insistence on secrecy in courts is first and foremost to protect acts of bad judging from public review. The public has no real ability to monitor or correct the behavior of judges because they can’t find it. This book is a roadmap. It will get litigants started on the trip.

WHO WOULD CHALLENGE A JUDGE? Bad judging is largely unchallenged by the general public. As a whole, Americans want to believe in the good of judges, just as they believed in the moral good of Presidents, priests, investment bankers, stockbrokers, and Indian chiefs. Our social system works best if citizens can generically trust in their leaders and authority figures. Most other categories of leaders do not have as much personalized authority over individuals as judges do. Why don’t we hear about bad judging? Because the club marginalizes people who challenge judges (and challengers always lose.)

There is little hue and cry in the marketplace over judges who misuse their arbitrary power. Most stories about judicial corruption circulate quietly through loose groups of people struggling to overcome unfair court experiences. The law system, as a response to public criticism of a judge, will label the critic a ‘loser,’ and tries to destroy their credibility and character. Insiders who respond (for the judge) try to attack and maneuver the critic into a position of guilt. Calling a critic a loser is a way to avoid addressing the underlying problem. It diverts attention away by throwing shame on the questioner. My experience is often, this loser/critic class probably experienced the underbelly of the legal system 16

§6 Judges Are A Secret Elite

firsthand, but cannot identify or articulate what specifically was wrong. Overwhelmed and alone — they are isolated and believe they are the first to feel pain and shame. Deeply disenfranchised as legal consumers, critics are unable to see the bigger picture because of the injustice is ingrained in the process. They can’t see through the legal tricks in logic and reason. Inferior or angry feelings are court contrived — for example, in divorce cases with predetermined outcomes — the loser is systematically set up to feel ashamed, alienated, confused and broke — so will not follow up with an appeal, complaint, or public criticism about the judge involved. Making people feel ashamed, means a better chance they’ll go away and not bother with the court system anymore. Unfortunately, some of us are an idealistic gritty lot. After losing, we think that not every judge will go along with such obvious judge abuse, so we file for appeal optimistically thinking that maybe at the next higher level, some honest judge will be willing to correct an obvious judicial error. The number of trick-cases only adds to the soaring number of state and federal appeals. The numbers represent loser idealism at work.

AS AN IDEALISTIC NEW ATTORNEY IN 1989, I HAD NO IDEA ABOUT THE COURT COUNTRY CLUB. Any large-scale abuse by the judiciary was beyond my comprehension. Soon after law school, I met and then married a former state Supreme Court judge and U.S. Congressman. His mentoring was invaluable to my development in the practice of law. I thought he was charismatic and brilliant. By nature, lawyers are both advocates and complainers. So how could I (or an entire profession) be so blinded to corruptive behaviors and practices of judges? Later, because I was looking for complicated answers, I discovered strong institutional disincentives for lawyers to not notice and not complain about what judges were doing routinely. These disincentives are so powerful that the number of lawyers over the last decade who have publicly testified about judicial corruption is still in double digits. We became whistleblowers.28 Later when I testified in public about institutional patterns of judicial abuse and corruption, legal insiders would approach me afterwards — in private. Attorneys, bailiffs, court clerks, law school professors, legal experts, even judges, assured me I was right-on, and that I was the only attorney they knew talking about ‘it’. One called me Joan of Arc. I reminded him, Joan was burned alive. Attorney/legislator Phil Cobbin called me dead meat. Senator Sheila Roberge said I was radioactive. Another asked to talk to me only in the Capitol ladies room. A Manchester attorney said, “I would do what you are doing, but I have three children, a wife, and a mortgage. College tuition is coming up. I want to help, but I can’t afford to be seen with you.” Judges hold double reins of power over lawyers. They control favors to wealth, and they control the reins of retaliation and punishment. The ability to favor or retaliate means judges make or break cases and careers for lawyers. Understandably, attorneys find it is expedient to avoid criticizing a judge because a pissed-off judge has an almost unlimited potential for retaliation. Against both attorneys and their clients. And many judges are vindictive, by nature or nurture. Like biting a feeding hand, attorneys have strong incentives not to notice or report judicial abuse and misconduct. Non-insiders are told to trust judges. Judges are in charge of the courts. Exclusive and self-regulating, the entire legal system lacks transparency and outside oversight. With no institutional or external mechanisms, outsiders cannot review, change or censure those who exploit and abuse people caught in the court system. And almost every attorney is too afraid to act. Newspaper publishers are afraid of it. Legislators don’t really understand it (they get fooled all the time.) So that leaves us the people. I admit it is difficult to identify judicial abuse, much less correct it. In order to challenge the system, court users must learn to identify standard abuses of power. And that’s tricky in a culture that loves secrecy. As long as judges can avoid detection, they can continue to dispense multiple-tiers of justice. One level for Insider Ol’boys, and another for everybody else. Education is the first step in confronting despotic authority and tyranny, which has grown across the legal system in the last half century.

28

The National Whistleblowers Summit is sponsored annually each summer by several diverse national groups, including the new Acorn8 and the National Judicial Disability Project.

17

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1

This book describes a private system of privilege, which undermines justice and rewards arbitrary uses of court power. Attorneys are effectively stopped from reporting it, and consumers don’t understand it. By tracing the history and learning to unmask judge abuse, law consumers can protect themselves and focuses on correction.

JUDGES’ RIGHT TO SECRECY? Often secrecy requirements are built into the court’s internal regulation process to prevent the public from seeing how the bar and courts interact and share power — especially in matters of investigating and dealing with professional complaints, insider-crimes and discipline. Other times, the rules and codes and mechanism are unclear — deliberately vague, unwritten or unavailable. There is also no mechanism for how all cases are decided once they are submitted. There is no Constitutional or legislative authority for these secrecy practices, but courts and bar associations do a lot of sealing and closing. A lot in this third branch of government is not-for-public-view. Secret. Both judges and the bar association routinely avoid standard American open-government processes. When required to have outside oversight, (for example appointing a public member to a secret judge committee) — openness and oversight is avoided (or neutralized) by appointing as public members people who are untrained and otherwise unable to understand the big picture. They may think it a great honor — to be in the company of high ranking judges. They are often overly impressed. They are picked for their compliance. Even court personnel are acutely aware that the secrecy surrounding judges is sacrosanct. Bottom line, Judges became complacent about not being caught or reported for abuse of office. Everyone at court understands this is a secret organization requiring the highest levels of loyalty and esteem for judges. Avoid the Freedom of Information Act (FOIA), open-records laws, and even subpoenas. Exempted the industry from Consumer Protection laws. Write summary reports and annual accounting, to make disclosure only in broad ‘coded’ language that provides no actual or effective information about the regulation and discipline of judges. Self-regulates without transparency. Judges have some standardized justifications for their actual and indirect secrecy — and at first blush, the rationalizations may sound legal. But they fail a close scrutiny test. For example, the claim of protecting the public gets used often — just like the bogus phrase — “national security interest” — is tossed around by military and lawenforcement (as the excuse for violating civil rights abuses and avoiding review.) Americans are right to mistrust those who keep claiming a right to secrecy — while committing abuse. The judge’s over-broad, loosely structured regulations and codes of conduct create systematic secrecy in government process — but no one outside the institution is in a position to verify what goes on. The secrecy in conduct complaints, for example, serves a dual function — as weapons to threaten and remove insider whistle-blowers, while correspondingly covering-up corruptive behavior. So abuse in these areas becomes a legal orphan — no place in the country to get the illegal actions reviewed and rectified. To make matters even worse, questioning and criticism of judge authority gets labeled as heresy — because it creates a breach of public trust. The tension between truth as written by a judge as case outcome, and truth in the lives of people involved, is profound. Secrecy helps cover-over this chasm.

SECRECY IN EVERYTHING The new bar/court institution developed a net of secrecy around many administrative court and bar processes. The secrecy functions to protect bad judging from public disclosure. The public has no real ability to discover, monitor or correct or even oversee the daily behavior of judges. The roots of secrecy twist up the trunk and become entwined in the branches of laws, so there is excessive secrecy in the administration of courts that is unwarranted except to protect judges from public view. This theme of secrecy in courts is explored in specific examples throughout. Because the Constitution grants no provision or authority for court secrecy, the judges themselves developed various doctrines, rules and techniques to keep private various personal and administrative practices, as well as case deliberations and sometimes records, dockets, and files. Even when in plain view (such as rules), the failure to write and disseminate easily usable, accessible and understandable rules is an Insider

18

§6 Judges Are A Secret Elite

joke. Remember, you have to be a member to play. The court’s secrecy provisions have been applied de facto across the legal system to avoid legitimate scrutiny and public access to the raw data of judges’ individual and collective acts. This requirement of secrecy is overdue for legitimate address and oversight.

THE DIFFERENCE BETWEEN SECRECY IN CASE HANDLING AND JUDICIAL DELIBERATION Where did the idea come from — that judges could have all this secrecy?

ASSUMPTIONS ABOUT DELIBERATION Court rules provide privacy around how a judge thinks when he decides a final case outcome. The process is called deliberation. It is assumed that the outcome will be better when judges are given freedom to determine outcomes without the public or political pressure or worry about retaliation. This assumption is something of an old wives tale, not verified or tested, but just taken for granted. It is the reason cameras are not allowed to record jury deliberations. The process permits decision-makers to argue back and forth, and to change their minds, as they try to come up with the best outcome without pressure of popular opinion. So there is an unverified common assumption that a judge’s thinking process should occur in the privacy of his own thoughts without undue pressure, but that may not be accurate. 2. On the other hand, if the deliberative process is corrupted by improper influences, the secrecy rules used to protect judicial deliberations can become cloaks used to hide bad acts. The public ordinarily has no way to know if an improper influence tainted the judge’s deliberation process.29 The judicial right to secrecy is also misused when judges abuse their discretion to order special treatment, and then try to hide it. That secrecy is not about avoiding undue pressure, but rather is a cover-up of illegal behavior.

ONE SIGNAL IS TO SEE IF THE JUDGE TRIES EARLY ON THE CASE TO ISSUE ORDERS THAT ENHANCE SECRECY. A judge often will orders maximum secrecy, when he expects to improperly influence a case outcome. This is called a lack of transparency. You can’t see through the court process to check on whether or not the case is being properly administered. Without transparency, a judge can use discretion with impunity to influence the final outcome. Yet abuse of discretion rarely counts as a reason for appellate review or appeal. Reviewing courts assume that administrative errors or abuses are not counted as heavily as a judge’s substantive errors in law or fact. So in those cases where a judge anticipates a need to control the outcome, he will want to obtain maximum secrecy at the onset, over even the administrative functions. Like playing chess, experienced corrupted judges plan ahead. Strategy and self-preservation are part of the sexual- style gratification that comes from intellectual game playing. This is a mere introduction to the element of secrecy and is touched upon in almost every aspect that follows. The concept of secrets is commonplace in a club, and there seems to be some sort of latent (male) satisfaction in trading in secrets. (Some sense of belonging or one-ups-manship; an unspoken bonding; power from knowledge of long-past relationships that one can later rely upon.) I know of only one other occupation that so trades on secrets, namely politics.

A YELLOWED NEWSPAPER HOBBY Way before the age of computer searches, my ex made a lifetime hobby of clipping and filing news stories about his classmates, lawyers involved in the new bar association, and people in state politics. He started this hobby in the 1950s at age 10. Some of the people he kept dossiers on also aspired to leadership roles and political power while they were still teens in college, and some had public screw-ups. He clipped and stored all those stories. He had a rather large backroom of news-clips stored in file cabinets, (and later one entire room dedicated to this storage when we constructed a new house-sized basement.) At work, he hired extra staff to cut out and file loot from a dozen daily newspapers. Because New

29

See later chapters for hints on how legal consumers can figure out if the judge’s deliberation process has been tainted by outside influence. There are definite things to look for, to establish a judge is concealing a powerful secret influence.

19

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Chapter One — The Culture of Modern Judges

1

Hampshire is a geographically small and closed state, this forty-year hobby was a source of many secrets about other attorneys and peers, ammunition stored for later in his career. The changes, foibles, antics, and photographs of younger years could be hauled out for mention at odd times, decades afterwards, for some advantage or embarrassment in court and political circles. Prescient now, but the oddness of trading in long-forgotten personal facts and public secrets was then a unique currency. However, overall in the American culture of openness in government, judicial secrets are an anathema to fairness for all, so the widespread institutional use of secrecy in courts by rule, procedure, and practice, warrants not only review and public scrutiny, but also a deeper analysis of this often used tool of modern judging.

7 CALVINIST ROOTS

§

To effectively fix a problem, you must first understand it. To understand a problem, trace back to the source. The American version of a secret elite class of leaders stems from a Calvinist doctrine of the early and mid 1600s, the English Puritans who first colonized New England imported the doctrine. Male colonial leaders in Virginia, New Hampshire and Massachusetts were Englishmen, empowered either by the Crown or by nomination of their peers, to govern the settler communities. Governing included imposing, coercing and enforcing their will about morality on the people they led. These men, ostensibly by virtue of education, connections, training, or birthright, possessed or acquired a claim of natural moral superiority. This early leadership model had dual functions: religious leader and legal authority. Each determined what was moral and legal for the community. The authority included power to mandate and enforce social conformity (including conformity of thought) by all community members. The beginning of this mentality, that judges have an elite authority to make judgments over other men, is traceable back to the crude beginnings of Roman and Justinian law. It was later refined into Ecclesiastical Law, under the auspices of the Roman Catholic Church. The Church in Rome claimed its authority to judge other men traced back to the Apostle Peter. Thus the authority to make and enforce law over all other men arose from the Church in Rome. At the time, the European world was Christian. All non-Christians were lesser, heathen peoples, and therefore subject to the higher authority of the Church. When Henry VIII broke with the Roman Catholic Church, he shifted the concept of a divine authority over men, to the jurisdiction of the English Crown, where elitism permeated his court system. He believed the Crown held an inherent and ultimate authority for unquestioning obedience to him by his subjects. Kingly proclamations were law. However, Henry worried about his immortal soul, so he created his own church, and combined religion and law. Then his temporal royal edicts were confirmed as religious law by compliant archbishops. This combined form of lawmaking was the first recorded law. It was far from just. Following the whims of crazy royalty, early justice often resulted in torture, beheadings and brutal coercion for perceived or imagined defiance by his subjects. This spirit of elitism in the administration of law and justice persevered through several more centuries of English rule, and finally landed on colonial shores at Plymouth, Massachusetts, where the same elite thinking was practiced by the country founding fathers. The earliest American tribunals imported the English penal statutes against heresy, dissent and non-conformity. Similarly, early judges required community members to renounce religious and politic beliefs inconsistent with those of the leaders (called apostasy). The trial techniques and enforcement powers mimicked those of Ecclesiastical authorities and law on the other side of the ocean. Anne Hutchinson30 early Boston settler and midwife, along with fifty of her followers, were evicted from the Massachusetts Bay Colony following her trial for heresy. Less than a century later, this same region in southern New Hampshire and northern Massachusetts was the location of witchcraft trials using the same elite leader-incharge model. Burning, suffocating, dunking and crushing with rocks– our early jurisprudence was a mixture of religious

30

See Eve LaPlante, American Jezebel, the Uncommon Life of Anne Hutchinson, the Woman Who Defied the Puritans, Harper Collins (2004).

20

§7 Calvinist Roots

and legal tyranny. Because religious morality and beliefs were inextricably intertwined with law, crimes charged and tried in court were often thought-crimes, based on discrepancies in religious beliefs between leaders and followers. The roots of our earliest laws mandating and enforcing conformity were grounded in ecclesiastical authority. Heresy, a popular legal crime, included making contrary declarations of personal conscience, holding contrary beliefs, and making personal interpretations of the Bible. Thought control was a privilege of elite rulers, not common subjects. In the early 1800s in New Hampshire, Mary Baker Eddy31 challenged ecclesiastical authority when she defied the concept of a secret elite. She asserted individuals should be able to determine for themselves what was morally right and wrong, and she preached this message in her Church. At the same time, the earliest state legislative bodies began writing down laws and codifying statutes into permanent book form.32 These were the origins of American jurisprudence. Bottom line? An elite attitude and imperious thinking was embedded into early colonial judges in America; the earliest roots of our legal system were potted in the old soil of intolerance and tyranny. Several moral religious movements lead up to both the French and American Revolutions regarding the rights of individuals. In turn, the American Revolutionary War led to the spread of even more ideas about the rights of individuals and the role of government and authority in relationship to individuals. These ideas about citizen rights were unique in the history of the world.33 Never before had a system of government been constructed to establish and protect rights of citizens from the government that ruled them. It was a social experiment about moral imperatives for individual human life and government constraint. These unique principles were embedded in the Declaration of Independence, but most people think they are from the United States Constitution. Today, it is commonly assumed that practices in the legal system are consistent with that same evolutionary moral path. We expect judges to demonstrate attitudes and practices consistent with a deep understanding of those fundamental and revolutionary human principles about individual human life (originating and embodied in both the Declaration and the Constitution.) However judges, through training and common practices, continue to march to a different drummer than the drummer that beats for the average American citizen34 The drummer for judges beats the early Calvinist call about a rarified class of people with unrestricted authority, with power to enforce their will over commoners. Secret modern practices in courtrooms are a reflection of much older historic concepts about the role of kings (and judges) in society. Discerning differences between secret preferential practices and bonafide use of court power is the challenge of people who care about the American legal system. The resurgence of this elite attitude of judges is now embedded in their self-controlling practices and a prevailing elite attitude — of being supreme, being beyond reproach or oversight, and being royalty in the courthouse. Without citizen and media vigilance (Semper Fi) the court branch will continue unregulated and unchecked through its own private non-transparent operation under its own country club rules.35 Country club judges do not recognize the moral imperative of government constraint.

31

Founder of the Church of Christian Scientists.

32

New York statutes were first codified in the 1830s.

33

France was the first country to revolt over the concept of individual liberty. It guillotined much of its royalty to make way for democracy. Some signers of the American founding documents had been to France and were strongly influenced by the French Revolution.

34

The parallel universe of training for judges is radically different. It is the genesis of the disconnect between what American people think judges do — and what judges actually do (in secret under their self-assumed Country Club infrastructure.) See Ch. 8.

35

See online editorial, Cam Beck, From the Halls, The Meaning of Semper Fidelis, www.oh-rah.com/Store/editorial/edi52.asp

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Chapter One — The Culture of Modern Judges

8 FIEFDOMS OF POWER & TRAPPINGS OF AUTHORITY

§

1

To see the face of court power in a modern mirror, it is helpful to reflect backwards to the source. The pitfalls of judges are also historic.

THE FEUDAL SYSTEM Eight hundred-year-old English court customs are practiced and reflected in modern American courtrooms. That’s because American courts are based on ancient traditions that were first memorialized into handwritten form when feudal authority was the system of law. Those early writings indicate no formal restrictions on judges, who were allowed unfettered authority to investigate and punish anyone in the land. They received this broad personal power under a loyalty-reward or liege system. From architecture and language to modern judicial attitudes, values, and practices, many of the vestiges of this old feudal system of power are alive in modern courtrooms. It is not unusual to hear the complaint that modern judges run courtrooms like little fiefdoms of power. Fiefdoms are the earliest recorded system for dispensing justice. In a fiefdom system, royal men of lower rank were able to obtain royal titles, land grants and personal power as payment for extraordinary service and allegiance to the king. “Feudal lords protect the underlings in exchange for obedience and labor.”36 Land grants were called fiefs. The grants were large sections of land where a liege lord could collect personal wealth for himself, taxes for the king, and he could rule with impunity over all the people and property located within the fief boundaries. Only a higher-ranking liege lord or the king could restrict this liege’s personal power. Liege lords became the first organized system of judges, outside of the religious church system. In a fiefdom, power flowed downward. There was no concept of civil or personal rights for people at the bottom.37 To put 12th century fiefdom traditions into modern perspective, 900 years ago, this was the state of the world — English kings needed to finance wars abroad. England was fighting Genghis Kahn in its 4th Crusade. Fiefs rewarded loyal warriors and raised revenues for the king to finance war abroad. New social inventions included window glass, chess and fire and plague insurance (but not for leprosy — a disease imported from earlier crusades.) The first universities were established in England and France. Before these, monasteries were the centers for learning and education. The Knights Templar was created — an elite secret society existing today. Numerous new religious orders were founded, whose work it was to read and interpret The Bible. It was illegal for lay people to read or interpret The Bible. People who did so were heretics. The purpose of the Inquisition was to discover, try and punish heretics. The Dominican Order first formed. Dominican friars carried out the Inquisition. Halfway ‘round the world, the Chinese first invented explosives, which would change the face of warfare.

WHY IS THIS HISTORY PERTINENT TO OUR MODERN CRISIS WITH JUDGES? If you feel intimidated when you enter court that feeling begins with the optics — the architectural planning and space design. Courtrooms are designed to put and keep you in your own small place in front of a higher authority figure. None

36

Father Richard Rohr, Levels of Development. Red: the Impulsive Hero, the Center for Action and Contemplation. December 14, 2015.

37

Although English lords forced Henry II to sign the Magna Carta in 1215, it was largely a symbolic document acknowledging the concept that a king’s power had some limits, and that lords had some property rights in their feudal estates. Now best know for the doctrine of habeas corpus, the Magna Carta was the first civil rights statement in recorded history, although relating only to civil rights of lords.

22

§8 Fiefdoms of Power & Trappings of Authority

of this is by accident. Judges today expect the inherent respect of office that originated in 900 year-old authorities and customs. Their hidden attitudes become more accessible when viewed through this looking glass of time.

LET’S LOOK AT THE IMPLICATIONS OF ARCHITECTURE AND DESIGN —

Judges sit in an isolated, central, elevated chair higher than everyone else’s and suggestive of a throne or perhaps an altar for performing ceremonies. High ceilings and directed lighting add to the throne-like impression of power. High ceilings make sounds and words resonate with an acoustical ring. Words seem more important when spoken aloud in court. Courtrooms are divided, gated and fenced, delineating and protecting the judge from contact with commoners, who must stay behind ‘the bar’. People inside the fence are closer to the reflected status of the judge. Others may not enter through the gates unless summoned. Judges also have chambers — private inner sanctums, where public is not allowed and private court business may be conducted. Judges have private facilities, corridors, and entries, so they don’t associate with common people in shared entries, passages or restrooms. Judges sit surrounded by a lower level of bailiffs, clerks, and administrative staff — all valets or servants and protectors of the judge.

VISUALLY, PHYSICALLY AND PSYCHOLOGICALLY, A LOYAL STAFF IS THE JUDGE’S FIRST LINE OF DEFENSE. Within a courtroom, the layout is designed to maximize the authority of judges while diminishing the status of all others. No attempt is made to create a warm or hospitable atmosphere. Rather the feeling is one of intimidation. The physical structure deliberately reinforces a feeling promoting the unassailable authority of a monarchy and a throne of authority, while minimalizing individuals.

NOW, WHAT ABOUT THE DRESS?

Judges wear distinctive black robes, like priests and religious people. The social expectation about a person wearing a robe instantly suggests this person is someone with a high moral status because of his position, knowledge and training. Black is the most somber color with highest authority, as opposed to white or brown. Long robes serve to hide legs and feet — undignified body parts that otherwise would be visible at eye level for the rest of the room. Also, the judge’s bench has a closed front for the same reason. The public is expected to demonstrate their respect when appearing in court, meaning ‘church-like attire’ without excessive skin. Men are expected to remove caps and hats upon entering the room.

WHAT ABOUT THE ELABORATE LANGUAGE AND MANNERISMS?

Court personnel use elaborate rituals and meaningless, anachronistic sayings. When the judge enters and leaves, everyone in the room must rise to show respect, just like they were required to do for the old Kings of England. When a judge enters the court room, a bailiff may chant, “Oy ye, Oy ye, Oy ye, the honorable court is now in session. All rise.” Modern, lower court practice abbreviates this, but every court has a ritualistic opening. The bailiff announces the name of the judge in a similar stylized manner, “The Honorable Francis Smith presiding.” Then the judge walks from his private door to his throne. His chair is on a center-front elevated riser. While this is going on, everyone remains standing until the judge seats himself first and then gives permission to the room, “you may be seated.” Each judges has a gavel, which is used to bang open and closed the hearings and to get everyone’s attention and assert decorum.

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The universal title, ‘Your Honor’ is reserved in our society for dignitaries who are admired and respected.

1

Vocabulary of court routinely includes phrases in Latin. This has a two-fold function: Insiders understand the phrases. And the Latin translation is neither commonplace nor obvious to those without legal experience or training. It is a great divider. People who want to speak must first stand and ask permission. If denied, they may not speak. Judges get the final word, both in court and overall. Dress, demeanor and decorum are remnants of Ecclesiastical Courts carried over into modern court process. They are external observable remnants. Meanwhile, internal remnants brought forward from the same time include attitude, entitlements, and unfettered authority. Complaints that some judges treat their courtroom like fiefdoms suggest a modern adoption of an ancient attitude. Ceremony and civility are used to reinforce the illusion of the historic power of the monarchy over the lot of common men. Judges command respect as a matter of rote.

CIVILITY Courtrooms affect outward civility to the extreme, unrelated to the underlying impact of what is actually occurring. Club members understand and are taught a kind of formal hollow civility; outsiders are expected to follow even if the respect is not earned under modern social values. It is because extreme civility serves to demonstrate first, a judge’s absolute control of people in his space, and second, it shows the participant’s respect for the judge’s power. I have seen people who represent themselves become unnaturally formal, trying to match or mimic this excessive civility with the trained lawyers who oppose them. One man representing himself affected a third party voice to direct-examine himself about his fitness to parent his child. He asked question of himself in a deeper voice, then used his regular voice to answer himself. Another woman asked questions from the floor, and then moved up to the witness stand to answer herself. She used her formal surname when asking herself questions. She went back and forth from the floor to the chair for about 3 hours. Frequently, outsiders speak with irregular nouns, verbs or adverbs when making statements to a judge. This stilted, unnatural speech is an attempt to match the excessive formality of courts. These are attempts to fight in a system that relies on ancient customs designed to identify and exclude outsiders from effectively participating in the process. Ordinary people in court are expected to act formally no matter what tragic or distressing things occur-to act and to pretend a dignity they may not experience. Crying, anger, interruptions, some objections, and many other common-folk emotional expressions are considered uncivil. Perhaps contemptuous. Some judges take them (displays of emotion) as a personal affront. This emotional detachment is expected, even if what results in court is flagrantly wrong, horrendous or abusive. No matter how dishonestly or unfairly a judge may act, or how distressing someone’s personal situation, the standard of conduct is this exaggerated false civility. It is important to be polite and controlled. However if a case is obviously being manipulated, and one is being lied about, demeaned or screwed over (out of home, money, assets, children, freedom or any of the things that matter in life), this elaborate ritual of politeness feels like the ultimate hypocrisy. I tend to speak forcefully, and have been known to raise the same objection numerous times — when I am certain of my facts, law, and that the judge has announced an erroneous outcome. So, shall we say I’m not the most popular person in the room? Judges expect litigants to bow, scrape and express thanks — even toward those who may be actively cheating and disrespecting you. Even if the judge is picking your pocket, so to speak. The Country Club expectation is that commoners will demonstrate humility and acquiescence toward any judge.

COERCION Judges have power to have you arrested, fined and lots of other really bad things, especially when they don’t like you. They also have the authority and staff to use force to make you to comply with their orders. Younger Americas are 24

§9 Social Conditions in 1955 and Judicial Conformity

socially conditioned to assume respect is individually earned and cannot be demanded. Hypothetically, individual rights are supreme in this country, so paying respect based solely on centuries-old traditions imported from another country seems anachronistic. However, judges still assert that this kind of respect is an entitlement of their office. And necessary for courts to function. Therein is the rub. As a whole, Americans don’t take well to monarchy-type exercises of power, however in courtrooms, physical space, rituals and excessive formality are used to make sure orders are automatically followed. Since disagreement is an element of being in court, this subtle coercion is tolerated. An outward show of respect becomes even more essential in cases where people do not trust the outcome to be fair or impartial. This translates into bad techniques for case management: the more suspicious the judge acts, the more likely he will be to insist on strict civility and compliance from a targeted victim. These cases often turn into a type of nightmare dance. Some tricks presented here describe an escalating spiral of abuse and resistance. The external remnants of power from an age of monarchy are the little trappings that feed the egos of men. Groomed to consider themselves of a special class in society and reinforced by the character and proclivities of men, judges are under fire. Judicial arrogance is a national epidemic. Absent external controls, the threshold between historic illusion and modern reality is but shades of self-control. It is a backward legacy. Whether judges have changed or modern litigants have changed, the recognition that little individual fiefdoms of power are fundamentally un-American — is an epidemic issue which needs addressing. On the other hand, judges feel unjustly attacked for adhering to centuries old attitudes and customs. Unable to think outside the box, the court system hunkers down to defend it’s ultimate imperial authority. Meanwhile people band together to tell stories about the aristocratic mentality and abuse of court. With the growing dissatisfaction on both sides, court change is coming. Judges want increased staff and controls to keep order in court, but they fail to address what prompts the disorder: unfair outcomes and a growing perception of institutional tyranny. This book reports situations where judges are not trustworthy. When courtrooms were little kingdoms and judges were in absolute control, power was an entitlement. Now increasingly this quaint remnant is an unacceptable source of systemic abuse and flawed outcomes. Without earned respect and accountability, modern courts function like fiefdoms of power — and ordinary individuals recognize they lack the ability to control widespread arrogance and abuse by those inside the club.

9 SOCIAL CONDITIONS IN 1955 AND JUDICIAL CONFORMITY

§

How judges form attitudes and opinions is crucial to understanding how the court system today derives its collective conscience, practices, and beliefs. The scientific discipline of social psychology first appeared at the beginning of the 20th century. Social psychology includes the study of how people react to different conditions and stimulus. There were several social psych studies that shed light on how people form decisions and react to power. Studying the social proclivities of young, upwardly mobile white males of the 1950s — especially how they regarded obedience to authority and how they handled unregulated power over other people — provides us with another dimension applicable to the current court crisis. There are three notable social psychological university studies that shed light on our current court culture. Each involved young men of the 1960s — the boomers receiving education at Harvard, Yale, or Stanford, the top three most prestigious universities. Not coincidentally, the 60s were also the beginning of the Unified court system that solidified institutional powers of judges to an unprecedented degree in democratic society. While the rest of the country was in rebellion over social freedom (sexual freedom, pot, feminism, and the Vietnam War), another quieter segment of baby boomers was in college and law school, focused on another power-type revolution — an elite national re-adjustment over the control and power of law.

25

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1

A Harvard scientific study conducted in 195538 documents how group pressure works to influence most people to change their correct answers into wrong answers because of collective social pressure. Visiting Harvard Professor Solomon Asch conducted a study of male students to test the role of social/group pressure in manipulating how people form and alter objective opinions when faced with social pressure. This famous study documents how most people, when confronted with a contrary group opinion will modify their own objective judgment to mirror the decision of the majority — even when the majority opinion is clearly wrong. The Harvard study asked a subject to pick a matching straight line. There were clear differences between the choices — some as large as seven inches. A considerable majority of test-subjects changed their answers to be in conformity with the rest of the group (who were paid to give wrong answers.) The situation was arranged in advance to maximize stress on the test subject — to make clear that the subject was alone in stating a different (but correct) response. Group conformity, at least among the white males of Harvard in 1955 was the clear winner, rather than being correct but all alone.

A

Exhibit 1

B

C

Exhibit 2

Similar studies at Yale39 and Stanford40 parallel findings that white Ivy-League male subjects demonstrated an unanticipated obedience and conformity to authority, and an eagerness to go along with the peer group, despite internal reservations. The emergence of abuse, brutality and tyranny by random participants assigned to power positions was a phenomenon completely unanticipated.41 Prior interviews of subjects and others, indicated the people involved in the lab experiment considered themselves individualists, and they professed to admire individual morality and courage of convictions — but their actual life practices did not reflect this alleged value. The students were screened with psychological tests, and those selected were the most normal of the applicants. The Zimbardo prison experiment42 demonstrated how ordinary people could, when assigned positions of authority, invent and administer humiliation, punishment, and degradation on random ordinary people. In a harsh environment, with a lack of clear rules, ordinary people appointed to power respond with extra-ordinary abuses they never imagined they could do. The circumstances of court also provide normal people with symbols of power and an unfettered authority over others, so the results of mistreatment of innocent people should be no surprise in light of these studies. However, the connection goes unrecognized, and judge abuse is not anticipated, acknowledged, or understood to be a cause for alarm.

38

Solomon E. Asch, Opinions and Social Pressure, Scientific American, Vol. 193, No.5, November, 1955 at page 31.

39

Yale University Professor Stanley Milgram conducted experiments that established a willing obedience to authority figures (by ordinary people even in the face of torture.)

40

Stanford Professor Philip Zimbado, The Prison Experiment (1971) conducted mock prisoner/guard role-playing experiments that demonstrated genuine sadistic and other abusive tendencies by students assigned power positions over others.

41

Note on obedience studies: although the studies were not of judges or even of lawyers, the gender, race, age and educational demographic of students included in the studies are roughly indicative of background of judges and lawyers at the time. It would be interesting to conduct similar experiments exclusively on judges and lawyers today. However even some of these studies were terminated early because of the unanticipated negative results and risk of physical and emotional harm to the participants. Follow up studies indicated irreparable harm was caused to some involved — even in the short time the experiments were done.

42

To watch a video synopsis of the Zimbardo Stanford experiment, see http://www.prisonexp.org/ and HeroicImaginationTV at www.youtube/ watch?v=760lwYmpXbc

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Ivy League universities have long been considered training grounds for future national leaders.43 And this particular generation manipulated a monopoly and pulled off the largest institutional power grab of modern time — a grab to benefit of private interests, which was largely unnoticed in and out of legal and political circles. The stunning scientific test results demonstrated excessive compliance with authority and a willingness to sacrifice one’s own judgment to be in conformity with the rest of the group. That idea gave birth to the concept that an entire occupational field (institutional and social conformist) — might be forcefully unionized together — aligned to a group addiction to the authoritative use of power. The dark side of law is both seductive and highly corrupting. Yoda said, “Once you start down the path, forever it will dominate your destiny.”

For people (especially different races, classes, the poor and unrepresented) caught in a web of court authority, the process and outcome can be unnecessarily cruel, and with devastating losses. Socio-psychological implications bear out in practice with the transformation of court players into perpetrators, lucratively rewarded for instituting abuse. In court, I see not only taunting, humiliation, and disparaging control over outsiders, but the application of other forms of gratuitously demeaning and abusive treatment by judges and members. It’s not just the losses, but the other excesses inflicted or tolerated by judges. It is a common-enough occurrence, explored and detailed with case examples in later chapters. The Ivy League University psychological testing outcomes lend credence to a hypothesis that in the legal system, there exists a similar socio-psychological variable for abuse by authoritative figures put into roles of high authoritative power without clear rules and oversight — namely judges.44 An assignment of ordinary people into a role and an environment so powerful that it transforms human nature. How normal people responded when given such power over others was shocking in the Zimbardo experiment. “There is a set of socio-psychological variables that make ordinary people do things they never imagined they could do,” such as extra-ordinary abuse against other innocent ordinary people. Putting people into a cruel and authoritative environment without clear rules transforms normal people. The desire to control and inflict demeaning and dehumanizing treatment on others was previously not recognized. Stanford Professor Zimbardo called it the Lucifer Effect where such mistreatment/events (even in short term situations) inflict long-term damage to people who are the victims. In law abuse, Dr. Karen Huffer writes in her book Legal Abuse Syndrome of similar long-term damage inflicted by judges and lawyers.

DECONSTRUCTION OF ONE STATE COURT’S 10JUDICIAL POWER GRAB OVER LAWYERS

§

GROUP PRESSURE IN A CLOSED SOCIETY One of the interesting things about social research is finding synchronicity — the convergence of events and movements that combine to form a meaningful relationship in apparently unrelated matters. The social studies that discovered a surprising degree of conformity in white men in 1955, 1963, and 1971, coincidentally occurred at the same time as a state-by-state lobbying effort to create a national Unified Bar system. The lobbying goal was to move regulation of the attorney profession to the control of judges in each state. The call was to unite all attorneys into a brotherhood controlled by the judicial branch. The verb “unite” implies a voluntary joining together or connection (like marriage) —

43

The negative impact of Ivy League honor codes on modern appeals and law policy is explored in the last chapter.

44

In an entirely other sphere, this same conclusion is borne out in the study of Enneagrams — which suggests that one personality type consistently is drawn to and ends up in the field of law, because of an inherent value of strong authoritative group identity. The type loves authority and demonstrates high degrees of loyalty to institutions and peer groups. In modern-day America, I suspect this explains in part the growth in power of both military and law-related professions. For examples and discussion, see Franciscan Father Richard Rohr, Naming our Illusions, National Catholic Reporting Publishing (1988).

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but this was anything but voluntary. It was enacted by judicial order in some states and statute in others. The mandatory Bar Movement significantly altered the way law had been practiced in this country — 250 years after the first court was formed — which was eight years after the U.S. Constitution was formed and went into effect.

THE NEW COURT SYSTEM The impact of the Unified Bar on injustice in court operation is so great that it is appropriate to call this a new system. Under this new judge-created authority, judges internally control lawyers without transparency or oversight. A halfdecade of self-regulation created the present environment of abuse and corruption. Judges regularly usurp policymaking functions of the other two branches of government and by fiat declare themselves the final arbiter of any dispute. The institutional strength of the new system is unable to be reined in by individual or group efforts — including state legislators and particularly by Congress.45 The role of the courts under the United Stated Constitution also took a turn in the 1960s as those newly graduated masterminds of court administration took a series of steps to reorganize courts into a more powerful, unchecked branch of government. The court branch extended its original limited constitutional role. They did this mostly by usurping enumerated powers away from the legislative branch, refusing to act in the face of presidential expansions of power,46 and a judicial muscle-flexing trick of converting a legislative loss into court case-law. As the last and the least branch of the three branches of government, courts have taken less than a half-century to extended new judge power into the milieu of politics and government. The government underwent an expansion in regulation in the latter half of the 1980s, requiring more judges, new layers of court, and when the scarcity of females on the bench was blatant and required a quick gender infusion. It was thought to be politically astute to run for office on a tough on crime platform, and the prosecutorial pendulum of popularity swung far to the extreme, especially in a unsuccessful national War on Drugs campaign, creating a record number of criminal cases in courts. These factors contributed to the expanding power of the third branch over a far greater number of ordinary citizens, and cemented the judge idea that usurpation and control over political and social power was rightfully theirs for the taking. The modern war song of judges begins with the phrase “the court is a co-equal branch of government,” and judges say this phrase so often, there is no doubt they want to believe it. They also need the public to believe it. The powers constitutionally granted to the other two branches of government have been systematically usurped until its reach has surpassed the authority of Congress.

PRIVATE LAWS In my cynical view, many of the infringements and conflicts reported throughout this book are traceable directly or indirectly to personal power niches resulting from the Unified Bar. The unified bar robbed attorneys of their allegiance to the law, and replaced individual conscience with group allegiance. The Harvard, Yale, Stanford University studies proved how dangerous that can be even in a laboratory. Unchecked in society, it has resulted in widespread privatized law-making by judges. Lawyers call this type of connection causation (tracing a cause and effect). Until about 60 years ago, state legislatures and federal Congress were responsible for passing laws. While they still are making law, the Unified Bar System provided judges with a powerful new platform to create law outside the legislative process. This is done through two methods: Making judicial interpretations and Passing court-made rules Both methods, because operate outside of the legislative process, and raise questions about whether judge-made laws are a contravention and infringement of the people’s fundamental right to make law? How much of the court’s selfassigned authority is constitutionally legal? And lastly, are the judges sharing joint power with the legislative branch or does one branch have an exclusive un-assignable right and duty? The judges aren’t saying. 45

For an interesting overview about the inaction of Congress, watch the presentation by Attorney Jonathan Moseley, National Coalition For Judicial Responsibility, U.S. Congressional Briefing, November, 2007, available at www.ncfjr.org

46

For readers who don’t understand the weaknesses of legislative power, I suggest a fascinating read about a half-century expansion of Executive Branch powers (taking away from Congress) by Pulitzer winning journalist Charlie Savage, Power Wars, Little Brown and Company (2015).

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§10 Deconstruction of one state court’s judicial power grab over lawyers

Normally, these would be the types of questions lawyers like to discuss. Unfortunately, under the new system, lawyers are justifiably nervous about raising such issues, because raising them is construed as criticism of judges. Remember the old popular crime of heresy and making contrary declarations of personal conscience? This is a crime that gets lawyers disciplined, disbarred and worse. There is still an unwritten practice prohibiting criticism of judges.47 Some things haven’t changed in 900 years, and public criticism of judges is considered a form of heresy. Punishment is harsh. Judges are sensitive about criticism and now have the full weight of the unified bar system to protect them from criticism. Since there are over a million attorneys in the U.S., their combined weight and wit are capable of crushing any individual attorney-critic. One dissenter at the time warned — “I address myself to what I consider to be a process. It is my view that when people in any calling, trade or profession combine into an association there is a practically inescapable tendency for the association, as an association, to be influenced at times in its actions by considerations of financial self-interest of its members and the limited point of view of the particular trade or profession.”48

I BEGAN AND ENDED MY LAWYER CAREER WITH QUESTIONS ITCHING IN MY BRAIN ABOUT THE LEGALITY OF THE STATE UNIFIED BAR ORGANIZATION. My first job was drafting occupational laws for the state legislature meant I drafted licensing regulations for every profession. I studied how the state legislature regulated and licensed all occupations and trades — except lawyers and I questioned the legality even then. The answer to why not lawyers was always that the court regulated them. It was circular logic, it was incomplete, and it was not consistent with the mandates in the state Constitution. Lawyers were exempted from other state and federal laws that logically should have applied to them. Consumer protection laws are a powerful body of federal law that would be appropriate to apply to lawyers. It just didn’t make sense why attorneys were exempt when no other profession was.

THE CONSTITUTIONALITY OF THE BAR? I came across a 1968 court case filed by two lawyers against the State of New Hampshire. It was the case State judges used to decide that lawyers were regulated by the judicial branch, not the legislative branch of government. The judges made this decision based on Section 83 of the New Hampshire State Constitution. We’re going to deconstruct the case that involved the birth and growth of the bar in New Hampshire, as an example of what occurred all over the country in the same Vietnam decade — an era of contemporary American revolution. I discovered that few of the 1960s ‘court revolutionary’ males went to war or actively served. They stayed safely behind in law schools and courts, (sometimes in the National Guard) but all the time their style of revolution was one of intellectual opportunism — because theirs was a Constitutional attack. Here’s an excerpt of Article 83 of the 1784 Constitutional language the judges said justified the regulation of all lawyers under judges —

47

Modernly, judicial tools involving contempt of court are used — an ancient, sometimes illegitimate system employed by judges to preserve their honor as agents and extensions of royalty.

48

Eugene C. Struckhoff, Preface, Comments by a Member of the Bar in Opposition to Integration, New Hampshire Bar Journal, Fall, 1968.

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WRITTEN IN 1784, THE NEW HAMPSHIRE CONSTITUTION IS ONE OF THE OLDEST IN THE COUNTRY.49 [SEE APPENDIX A] Document:

New Hampshire Constitution, Second Part, (excerpts from Article 83)

Section Title:

Encouragement of Literature, Trades, etc.

Subtitle:

Control of Corporations, Monopolies, etc.

Free and fair competition in the trades and industries is an inherent and essential right of the people and should be protected against all monopolies and conspiracies which tend to hinder or destroy it… Therefore, all just power possessed by the State is hereby granted to the General Court* to enact laws to prevent the operation within the State of all personas and associations … and regulate the acts of all such persons, associations, corporations, trusts, and officials doing business within the state; (emphasis added) [*note: the General Court is the name of the state legislature.]

Article 83 is a catchall clause outlawing monopolies. It clearly gives the legislature the sole authority to regulate professions, corporations, and trades. The judge’s ruling was erroneous because they found that under this clause, the court branch, not the legislative branch, possessed naturally inherent power to regulate all attorneys. And then they made a monopoly! A monopoly is outlawed under the citation the judges said they were relying upon! It’s not logical. In fact, it’s intellectually dishonest. Extending the power judges granted to themselves in their court order, the judges then wrote new court rules requiring all attorneys to join a court bar association and pay dues and fees as pre-conditions to continuing to practice law. And so in 1968, the Unified Bar was born in New Hampshire. The bar really took hold as a political force a decade later when Steve McAuliffe became bar president and the bar association bought and renovated a mansion on Pleasant Street in Concord, (the state capitol) as its multi-million-dollar base of operations. By now, preceding events, which transpired and reflect negatively on the validity of the transfer of control over lawyers to judges included: 1. The court ignored an apparent conflict of interest by deciding a case that involved defining it’s own power and authority. 2. Seven years earlier, the legislature defeated a bill entered for the identical purpose. This is the lawful state authority for making such a law. 3. When attorneys were asked by judges to vote, less than a third voted for a mandatory state bar. (237 out of 730 attorneys) 4. The court made an interpretation of Article 83 clause of the State Constitution, which is clearly erroneous. 5. Ironically the court created a law-practice monopoly from the constitutional provision that prohibits creation of monopolies. 6. Conclusion: The judges’ justification of their decision was an illegitimate process and pure fantasy.

THE JUDGES CO-OPTED THE LEGISLATURE’S POWER TO REGULATE ATTORNEYS. This sneaky power grab defied challenge, however. since the Supreme Court said at the same time, the Court itself was the final word about even it’s own authority. How does that make sense? Operating under the courts, the state bar is now a quasi-governmental branch that functions as a mini-government of lawyers outside of the state Constitution. It has established a non-constitutional court disciplinary system, for both judges and attorneys, that is neither criminal

49

See Appendix A for 17 excerpts from the NH Constitutional relevant to the discussion that follows. Note the beautiful wording and flow of language — it’s simple, but clearly written, and is a good example of early American constitutional writing.

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nor civil, lacks due process, and has a variety of judge-made rules and practices that inconsistently rely on other areas of law and represent extreme bias in operation. It is star-chambers,50 forgiving and hiding judge abuses, and harshly punishing perceived attorney breaches of the gentleman’s code of loyalty required toward all judges.

What is Star Chambers? Feudal law provided for a special King’s court where there were no rules or common law precedent or rights. What happened in Star Chambers was ostensibly the will of the king, and the tribunal could act on mere rumor, use torture, and stood synonymous with any secret, oppressive or irresponsible tribunal.

I belabor this Constitutional point in two different sections because judicial interpretation of the Constitution is a tool that judges use to reach particular political outcomes. Deconstruction of the New Hampshire process as a model, suggests how judges in all 50 states accomplished total control of the legal profession in a relatively short decade of time.51 If illegitimacy of process is consistent across the country, this new unified brotherhood court system is built on shifting sand. This case appears to have an case outcome that is at least questionable — so let’s scrutinize it further. Next, we’ll take a quick look at the specific section of the New Hampshire State Constitution that the judges used to justify their decision. Remember, this is the rock upon which Peter built the bar association. The judges also ignored all the sections of the constitution that enumerated the functions of judges and courts, because those did not give the court branch any authority to regulate attorneys. Instead, judges relied upon parts of a paragraph at §83 that encourages the social goals of literature and trades. The focus of the §83 paragraph was to encourage private enterprise and to prevent all monopolies. §83 however specifically grants power to the legislature (i.e. the General Court) without even a mention of the judicial branch. That looks like a definite problem. So, just for curiosity’s sake, we’ll also take a quick look at a provision for regulating professions, from the 200-year-old New Hampshire State Constitution52 to double-check the authenticity of the 1968 court decision. Remember, Judges wrote that this §83 proved that all along it was not the legislature, but rather the Court, that possessed the inherent power to regulate the occupations of lawyers (and judges.)

HOMEWORK ONE–AN ANALYSIS OF LEGITIMACY There are several sections in the book where the lesson includes using a basic ‘keynote’ method of analysis to show readers how to master the rational deconstruction process. They are tedious, but consider them word-sleuthing, logic sleuthing, and) appeal-writing techniques designed to uncover flawed rationalizations and processes judges routinely use for contrived case outcomes. This is how illegitimate changes in law get passed off as bonafide reliable court rulings, later cited as precedent, and spawning a non-legitimate line of law. Once legislatures and law consumers understand they can personally check whether or not the judge rulings are reliable and valid, they no longer have to rely on mere “trust us, the system’s working well”53 assurances of judges and court staff. “Method of reasoning: All reasoning is comparison. A comparison requires a standard, and this standard is the fixed, the axiomatic, the known. The law of correct reasoning therefore, is to compare the complex to the simple, the theoretic to the axiomatic, the

50

Sir John Fox, Contempt of Court, The Scolar Press, Ilkley, West Yorkshire (1927). Star Chamber is a form of 18th century King’s Court that uses “oppressive and arbitrary authority” (called “summary procedure”) to uphold the ultimate respect of the king. The Bill of Rights, statutes and rules do not apply.

51

The power of the purse is one method U.S. states have used to rein-in the judiciary. For example, in Arizona, the legislature pulled rank on state court when the judges refused to provide itemized court budgets for state funding. Judges insisted they should receive a lump sum and judges were to have sole control of spending the purse, without accountability to the legislature. In the mid-1980s, the legislature let lapse the bar-attorney licensing laws, thereby grandfathering in paralegals and others representing people in court.

52

http://www.nh.gov/constitution/lit.html

53

Quote from the New Hampshire legislative testimony/report of Clerk of Court Howard Zibel, 2000.

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unknown to the known. By this comparison we pass from the simplex to the complex, from

1

the old to the new, from the known to the unknown. Much of the reasoning [of mathematics] is know by the term Analysis. The simple process of analysis runs through the whole science … it is key-note, its basis principle … the fundamental idea to which and from which we reason.”54 An analysis of the New Hampshire State Constitution as the basis of a shift in the authority to regulate lawyers — from one branch of government to another. Was it legitimate or not? 1. The judges used Article 83 (see above) as the constitutional authority to assume control over the business and practice of lawyering. Is there any other part of the State Constitution that may apply or be relevant? If so, write it down, next to the Article 83 language that bans all trade monopolies. The rule of construction in statutory interpretation is that specific language trumps non-specific, vague, or non-existent language. The answer is no. No other part of the Constitution regulates these topics. 2. However, Article 4 of the New Hampshire Constitution specifically applies to judges and their powers, so let’s look at what it provides. Article 4 is the earlier section that allows the legislature to establish the court system. It does not contain any language about regulating the profession or trade or industry. It does not mention lawyers or control of people appearing before the court. The only judge-authorized-power enumerated in Section 4 is the authority to administer oaths in cases pending before judges. Article 4 language clearly gave the legislative branch (called “the General Court”) sole power to erect and constitute a judiciary. 3. For additional information, check history and old law books for relevant provisions. At the time the State Constitution was signed, the common practice and the laws of King George allowed both attorneys and commoners a right to represent others in court.55 A 1726 provincial book of the King’s Law provides: “Be it enacted by his Excellency the Governor, Council and Representatives Concerned in the General Assembly and by the authority of the same, that the plaintiff or defendant in any Suit may Plead or Defend his Cause by himself in his proper person, or with the Assistance of such other person as he shall procure;” This authorizes any person to assist a party plead or defend in court. No mention of attorneys here. Again, the power stems from the Provincial Governor and his council, and state legislature, not judges or the court.

54

Edward Brooks, Methods of Teaching, Sower, Potts, and Co., 1864 at 7.

55

H.B. Green, Printer, Acts and Laws passed by the General Court or Assembly of His Majesties Province of New Hampshire in New-England, page 24, (commonly called The Rules of the Province of New Hampshire) (King George) (1726).

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4. Use a good dictionary. It is always good to check the formal definitions of the important and controlling words, so use a good dictionary56 for more enlightenment of the two terms ‘formation’ and ‘constitute’ “Formation”57 is defined as “the process of creating something or coming into existence and the shape or structure that something develops into; the pattern into which a number of people or things is arranged.” “Constitute” is defined as “to create and establish something formally, especially an official body (formal);” and “to appoint somebody formally to a position (formal).” 5. Rational conclusions about New Hampshire Article 4 may include: The powers of judges in the Constitution are specified at Article Four and their powers do not include or even mention attorney regulation. It also does not prohibit judges from regulating attorneys–it is silent here. The regulation of a trade or profession is covered later in Article 83; so we need to check the rest of the document before making a determinative conclusion about which branch has the authority to regulate attorneys. The Constitution provides the legislature with power to erect and constitute a judiciary. So the Legislative branch has constitutional power over the formation (erecting and constituting the court branch), not the other way around. 6. Rephrase the issue — think of it as which branch is the parent institution that gives birth to the child institution? Determine which are enumerated constitutional powers and which are implied powers. The enumerated powers of judges are small. The only judge-power the constitution identifies is the power to swear witnesses in pending matters. The implied powers of Article 4 are that if the General Court can create and establish, it also has inherent power to dissolve and re-create and re-establish. The court has been dissolved by the legislature several times in the early years of federal government (under the U.S. Constitutional powers to Congress.) That means there is precedent.58 Note about Court rules. In 1980s, State judges claimed this Article 83 paragraph gave courts implied powers to regulate everything connected to courts — all attorneys, all courtrooms — also the security staff, the corners of the court parking lot, and all commoners representing others. This was a second questionable expansion of judicial jurisdiction and rule-making authority. The third expansionary power grab involved the authority to make court rules with the force and effect of law. About the same time judges were flexing institutional muscle creating the attorney monopoly, judges also claimed a ‘constitutional amendment’ giving judge-made-

56

To get the full picture, synonyms, and Latin or root words also provide a broader picture of the implications. In the Legislature, past history and notes of the session provide hints as to legislative intent at the time a Bill is introduced and passed. Here, notes of the original Constitutional Convention discussion or signers’ notes and books might also assist if/when the constitutional clause contains ambiguous terms. In this analysis, there appears to be no ambiguous terms.

57

Both definitions from Encarta World Dictionary.

58

‘Precedent’ means earlier authority. It is one aspect for analyzing legitimacy of later case outcomes.

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rules “the force and effect of law.”59 There were many improprieties associated with that state constitutional amendment. (Including the ballot proposal, voting, adoption, and the

1

legislative ‘enrollment’ process where an extra 13 words were added to the Constitution without voter approval.) It was a highly flawed (bait and switch) process with multiple judge-inspired errors in institutional handling. It also was a set-up for changing a fundamental democratic system of law-making. Judges claimed they disposed of all discrepancies and improprieties in the enrollment process, after the technical improprieties turned into a court case. They found the court position/ opinion/order was the ‘correct interpretation’ because judges are ‘supreme’. Of course, this is self-interested and circular reasoning,60 inherently suspect and unreliable at law. 7. Summary Analysis, New Hampshire Constitution, Article 83 The other non-applicable Constitutional provisions having been reviewed and concluded, it is finally time to decide the validity of court rulings where judges interpreted the state Constitution. Readers use a simple logical process: A. The Constitutional language specifically assigned the power to regulate operations, persons and associations to the legislative branch of government. It also explicitly prohibited monopolies. The judges found that not withstanding this specific assignment, they had “inherent” powers not in the Constitution. But the Constitution does have a specific prohibition section–against monopolies. B. So apply the Constitutional ‘prohibition’ language to the circumstances: Is an attorney a person? Is the practice of law an operation? Is a bar trade union an association? The answer to all three questions is yes. So this Article 83 applies to attorneys (a person), the practice of law (an operation); and the bar association as an association or trade union. Therefore, the Constitutional prohibition applies to all three. C. Did the legislature give away the disputed power to another branch of government? Did legislators pass any law that gave-away its constitutionally-granted power to regulate trades and industries over to the court? The answer is no. In fact, seven years earlier, the legislature killed a bill and rejected the same concept — a bill the judges introduced, which tried to force attorneys to join a mandatory bar association under the authority of the court branch of government. When attorneys were polled afterwards, they voted no. No matter. Judges were determined to control and regulate all attorneys. D. Is the legislative power even transferable? If we search the entire clause to see if the power given to the legislative branch is transferable over to the court branch — The answer is no.

59

Usurpation of legislative authority and the impact on American democratic society are reviewed in Volume II.

60

Deconstruction of circular reasoning and other forms of flawed logic are explained. Once readers learn to recognize when flawed logic is applied in court as legitimate reasoning for a biased result, the mystique of the legal system begins to fade.

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There is no other provision allowing legislators to transfer the legislature’s enumerated powers. E. Rational conclusions that follow this analysis are The Constitution specifically assigns the power to regulate all trade groups only to the Legislature; It is non-delegable; There are no specific enumerations of power to the judges except swearing in witnesses (which is a nominal administrative act); There is an affirmative prohibition on all monopolies; Modern judges created an unconstitutional and prohibited monopoly on attorneys and the practice of representing others in court. This was an un-Constitutional power grab from one branch of government over to another. The court justification, at best, seems to be unsubstantiated wishful thinking. It becomes apparent the power to regulate attorneys or a bar/trade association lies within the providence of the state legislature. And yet the highest court, after losing in the legislature, determined exactly the opposite. Even if its ruling is nonsensical, the court now always claims judge orders are the last word. This is one example of the court’s use of interpretative language tools to alter power away from an entire branch of government. Because the uses are not supported in Constitutional language, nor in logic and reason, I question the authenticity of using what appears to be merely imperial thinking.

For much of the rest of this volume, we will explore how two decades of Insider men, (once authority over lawyers was wrested away from the legislature) systematically monopolized the law profession then grew and abused their new powers, using a new rules and secret processes to re-create fiefdoms of judge-power that are now the new normal in the American justice industry.

Group pressure In 1968 an unwilling majority of attorneys were forced to join the new state bar. Mandatory membership was the first of many professional pressures judges apply to lawyers. Some appears as benefits, others are clearly punitive and controlling. Some are invisible, like the loss of autonomy. All are unconstitutional. It is human nature to assume money is the motivator for men to act contrary to what they believe. I was tempted to write, follow the money, but financial incentives are only one part of the bar persuasion. Unraveling common manipulations of judges and tracing their origins in history, in society, and in biology, is the hidden framework for why the judicial system doesn’t provide justice for all, and why it repeatedly works against national ideals, civil rights, and fundamental national constitutional goals. Fortunately, the present structure that provides unfettered power to a few judges is relatively recent and understanding its origins can help the reform movement.61 Unquestionably, those men controlling Bar members in 1968 used the new club-scheme to maximize their own personal careers. Repeatedly, I recognize the same names and faces a half-decade later — men reported in the early bar journals. At the other end of their professional careers, they have become top players in both the public and private court putrification. I married and divorced a man driven to seek public offices and private power. Outwardly, their personas are civic-minded lawyers doing public service; privately they reap personal rewards, favors, money, sex and power by borrowing, trading and leveraging favors and perks within the club. Most are manipulative and ruthless by nature and practice. 61

There have been diverse individual and legislative efforts for judicial reform. Most reformers are tried piecemeal, one case at a time, or else they try to raise a challenge within the court system and fail because of the relative size and economic superiority of the giant.

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INTERNAL RULES

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Internal rules for lawyer and judge professional conduct62 are easily manipulated by authority figures. Over-broad and loosely structured, the rules can be applied tightly, like an iron wrench, or weakly, to give the appearance of discipline without the effect. My experience is the degree of pressure applied, depends on member status and loyalty in the Club. Officially, the purpose of internal rules of court are to protect the public from unscrupulous practices of lawyers. In actuality, an important applied function is to curtail criticism and regulate speech, behavior and the livelihood of members. In short, rules function to protect or punish members, and to perform damage control against criticism of the court system.

Code of silence There are loyalty tests about what happens in court. Loyalty means practicing a code of silence about disreputable and questionable actions of judges. Professional livelihoods are at stake, so judge-made rules provide extensive secrecy, especially in matters about judicial conduct. The secrecy rules plus personal power to manipulate court transactions, has lulled judges into the expectation what they practice privately will never be viewed publicly.

THE IN-HOUSE ECONOMIC AND DISCIPLINARY SYSTEMS So when there are problems in court or with judge or attorney ‘administration,’ the method of dealing is through an internal (economic reward and punishment) system. Members may use only the internal system. It is widely ineffective in stemming abuse, and in fact, encourages progressive degrees of abuse because there is no deterrent. As a parallel example, Ludwig Von Mises, (a historical philosopher of economic culture) wrote about his 1920s economic-system studies (related to the economic and administrative history of Germany) that it was his great frustration to find Germany’s economic studies largely consisted of “paraphrases from official government reports.”63 Similar to modern courts, the literature of institutional toddies was both bureaucratic and inadequate, but glorified the system and its leaders. It is a dangerous precedent to do away with individual autonomy. This is the same frustration I encountered in studying bar/court system performance reports of internal court discipline. Regurgitated generalizations about judges fail to provide an adequate picture, avoided a total summary, evaded consideration of flaws and gaps regarding social good, (individual and public good) or the economic impact and return, and operated primarily to protect the power and economic benefit of the system for members. Judges are protected and feel safe from the consequences of their individual actions. The bar groups act as a quasi-governmental (Third Branch) system of protection. So when a judge or the system comes under public attack, some response is usually necessary for damage control. Judges are not supposed to get involved in public disputes, so bar loyalist are expected to step up and respond defensively in place of judges. The range of response could be making a few public remarks about public service, all the way up to stepping up to the plate to prosecute some lawyer, who stepped out of line and publicly criticized a judge. That will be internal bar-prosecution, not criminal constitutional court prosecution. The difference is star chambers. The bar system is a closed system so the group pressure to conform usually is enough to prevent any single lawyer from speaking out.

62

In New Hampshire, court member disciplinary rules were first drafted post-1968.

63

Murray N. Rothbard, Ludwig von Mises: Scholar, Creator, Hero, Ludwig von Mises Institute, 1988.

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Three out of four times in a lab situation, this demographic of white males demonstrated that an (initially) accuratereporting-male will change his mind and deliberately misstate his conclusions in order to be in conformity with his peers. 75% of the time (or more) he changed a correct answer to an incorrect answer in order to not stand out from the rest of the group. Those experimental groups were strangers. It was a lab experiment. The stakes were certainly much less than what occurs in the same demographic male in law practice — where there is money, prestige, reputation, peer-pressure, three kids going to college, a mortgage, and a ticket to work.

Society assumes that judges are intellectually or morally superior, and therefore qualified to sit in judgment of others. But judges are simply elevated men with a very high degree of conformity and intense institutional pressure to hold themselves out as ‘socially superior’ — especially in circumstances of reporting insider abuse. It is my perception that coercing a false report, failing to report, and otherwise protecting judges with group silence — are all acts of changing a correct answer into an incorrect one. The group acts as pressure for individuals to go along and to be in conformity with the rest of the group. Because of the mandatory Unification Movement, this problem of coerced conformity has become much more perverse in the legal profession — than in society at large. Judges act like kings over officers of the court. They control judicial-abuse-reporting and insure all attorneys conform. It is a closed system that rewards blind attorney conformity while quietly oppressing citizens. This helps explain the irony: in a profession dedicated to serving truth and justice, the members must carefully avoid seeing and reporting abuse and corruption in their leaders.

11 THE OL’BOY NETWORK

§

When people of mediocre ability are selected for positions of power and authority based on their compliance and willingness to protect each other and the system.64 The court functions for the benefit of insiders, but must tolerate outsiders. Outsiders are essential for a successful financial operation. Ol’boys detest using their personal money to operate. Large infusions of outsider money are funneled through the club in the form of lawyer fees, costs, and fines. They also get state revenues in the form of federal and state budget allotments, (which are sizeable; federal funds may exceed state budget allotments.) Budget-funding is the only avenue of oversight, so judges have taken the lead to close off (as much as possible) any legislative oversight of their Third-Branch budgets.65 Outsider court users sometimes try to save on the enormous cost of lawyers and navigate cases on their own. Often they have far less reliable outcomes — not because they are inept or stupid, but because the system operates for insiders to make money. Outsiders work against the flow. Outsiders are often unfamiliar with complex rules of law practice, and how rules get twisted around to defeat outsiders. They also do not understand the latent hostility against them. Hiring or otherwise getting an Insider on your case is assumed to help advance a case by the web of connections, favors and trades, which can all be powerful trump cards in court. The assumption is not necessarily true — sometimes the only winners are the attorneys.

64

Harry Levinson and Stuart Rosenthal, CEO Corporate Leadership in Action, Basic Books (1985).

65

Judges use trial slow-downs and delays as retaliation for legislative attempts at oversight.

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Who is an ol’boy? What is the difference between being a country club member and being an ol’boy?

1

At first blush, I thought the terms were synonymous. They’re not. That is an important distinction because it means not all attorneys want to be a manipulator. There are still Atticus Finches in the profession, if you can find them. But with the extreme tribal mentality being advanced, attorneys have a quiet duty not to challenge judges, and that makes Atticus Finch hard to find.

MEMBERS All attorneys and judges are country club members. That means they hold a membership in the tribe, and a license to practice issued by the state — oops — actually by the judges, acting through the bar.66 Other professionals and support personnel involved with courts are club affiliates. Generally, people whose livelihood stems in whole or in part from the court system have a vested interest in how the club operates, are subject to its disciplinary process, and financial controls. Many are reliant in whole or part on the largess of leadership for jobs and financially successful careers. At every level of court operation, employees and members are controlled by fear or gratitude under a strict liege-lordloyalty-system practiced by courts.

OL’BOYS On the other hand, ol’boys are likely to be club members aspiring to the power of leadership and will seek to position themselves as part of the smaller, exclusive groups held together by common, often selfish interests and purposes. Through bar committee work and classes, they meet and unify. They may or may not be lawyers or judges or the most active members of a bar and may include politicians, bureaucrats and relatives. They won’t wear nametags, but often it isn’t too difficult to recognize them by uniform and bearing, and an internal sense of self-importance. My experiences are that ol’boys are selfishly and personally vested in the court political/financial system, in matters related to institutional power, money and sex. A silver-haired lawyer approached me in the hallway at a trial break. ‘I’m chairman of the professional conduct committee67 and I’m thinking of bringing you up at the next meeting,’ he hissed. [Note — He had fared poorly at our hearing, was not prepared with relevant case citations and his emotional, wordy argument lacked facts and law. In short, he was losing.] ‘And I should file a complaint against you for trying to gain a trial advantage through your position on the committee,’ I replied. As it turns out he wasn’t the chairman but had volunteered for years on that committee and frequently mentioned and manipulated the reflected authority of his association — to try to intimidate opponents when he got angry. His committee membership was not only his ‘insurance’ against complaints against himself and members of his firm, but he found another advantage in the lawyer game of bluff, by using it to threaten opponents. The same thing happens on the Judicial Conduct Committee. The chair, vice-chair, and a large number of volunteer members are paid salaries by their firms (or the Court) to sit in infrequent committee meetings as protectors of judges and others who need Insider protection from consumer complaints. In New Hampshire, for a decade, the top committee echelon included my water-carrying female judge. Look for tight groups of men in dark suits or navy blazers wearing ties and tassel loafers, with an air of entitlement and self-importance. Several East Coast stars of this book fooled me however, by wearing Gucci clogs, and the one female judge wore short robes, bare legs and Birkenstocks. In the West, formal court dress may be bolo ties, pressed crease jeans with a corduroy sport coat and cowboy boots.68 If a man is a plaintiff’s litigator, he may look like he slept in his suit, needs a haircut, pressing and dry cleaning. 66

This idea of tribal leaders carving out an area to manipulate tribes and clans at the community level is contained in a tactile analysis about how to combat terrorist campaigns on American soil, an interview by U.S. Army Lt. Col. Scott Mann, WND/Radio America, December 21, 2015.

67

A bar committee was formed by judges to oversee discipline of lawyers. Bar staff first reviews complaints. They dismiss or refer for attorney-peer investigation. A peer committee may dismiss, or investigate, or prosecute at an internal hearing and trial. That outcome becomes a recommendation, referred back to the judges, who issue an order.

68

I found life in the rural West reminiscent of the 1950s.

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§11 The Ol’Boy Network

They often use phrases such as: “the professional image of lawyers” or “the integrity of judges”. They talk about “promoting the administration of justice” and “enhancing the quality of legal services rendered” as common concerns. They also worry a lot about “threats to the public safety.” It’s a self-important way of projected speaking, by pulling the mantle of the bar around their shoulders, and fawning over and paying homage to judges at strange times in public places.

Ol’boys can recognize each other by dress and mannerisms, even if they have never met. You may not know them, but they recognize each other.

One way to learn to recognize this Insider is to start with the pillars of the court. In the majority, this style man grewup professionally, using the new model legal system for personal enrichment–money and power. As lawyers, they may not have had an impressive academic reputation, or ever have gone to court or ever tried a jury case. They may not be model citizens or even nice people, because ‘being right’ is a more important trait than ‘being good’ or ‘kind’ or ‘just.’ Nevertheless, they often get nods of approval in and out of court. They may be congenial, political and even charismatic in social groups where they recognize a perceived potential benefit. Look for certificates, plaques, and walls of honor attesting to recognition within the legal community. Ol’boys are often connected to a lot of people, past and present, through marital, educational, social and professional affiliations. And they foster connections to strategically placed people, like ol’classmates or former law partners. They are exhortably linked to each other. “Selecting people: The style has been to hire mediocre men who would become part of the old culture and not raise problems or ask questions — good ol’boys. Nobody cared about their abilities as long as they came from the right places, had gone to the right schools, and had the right family backgrounds.”69

RELATIONSHIPS THAT COUNT Prior to becoming New Hampshire Governor, a lawyer and his best friend started a law practice together. The wives of these two joked that the two men spent more time with each other than anyone else, including wives. They began law careers together at the Attorney General’s office, moved together to private practice. Both highly ambitious — politically, one Republican, one Democrat. One ran for Governor and won. After that, the other ran nightly ads statewide at six and eleven o’clock with a conspicuous banner ‘connections, contacts and relationships that count.’ These ads ran until the Governor appointed his best friend to the first available opening on the State Supreme Court, despite intemperment and a notable lack of judicial qualifications and experience.

FOJ = Friends of the Judge. Hawking friendship as a marketing tool implies on-going insider influence. In New Hampshire, the Governor makes nominations for judicial office. Without question, the appointments are favor-based, not merit. Favors between ol’boys are exchanged like currency. If not formed from prior social relationships, they can be earned by political fund-raising, expedient public endorsements, by offering legal service to another member in need. My ex made it a practice to reach out to underdog lawyers and politicians in their hour of need, across the aisle, which surprised and gratified them, even if there was little respect between them. When you’re down, this kind of public support is gratifying and memorable. He was re-building his Insider credit accounts. Legal services between lawyers and judges often traded (or are gratis or greatly discounted.) Often it is understood that legal bills between members will be comp’d (complimentary) and will not be paid out of pocket,70 except if charged-over for payment by non-insiders or public funds. There is a financial advantage to being in the ol’boy network.

69

Levinson, supra.

70

My husband was angry years after a retired judge sent a bill for quietly representing him on some legal problem that melted away. They used to sit together on the Supreme Court, and Chuck expected the legal help to be comp’d.

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1

If a judge gets in big trouble with negative publicity, stepping up to help him is a quid pro quo favor like a get-out-ofjail-free card. Somewhere down the line, a return favor will be waiting for the asking. Cash or in-kind contributions of $50,000 to a Governor’s race can generate a later favor. $50,000 donors can expect to be asked to submit a short list of worthy nominees for judicial appointment. One name is all that is expected. What about superstars in law? A few national lawyers and famous judges are household names because we see them on TV. So how are we to tell which are good guys and which are ol’boys? National superstars of law are not necessarily in the ol’boy network. In fact, many of them recognize and oppose the favor-bias that infiltrates court work. Don Quixote lawyers (like Gerry Spence) earned big jury verdicts through courtroom charisma and dig-it-out hard work in front of juries — not because of an insider edge with the judge. One of the benefits of celebrity status is the ol’boy network may avoid targeting someone who has national recognition. Since targeting outspoken lawyers is a protective technique of the Country Club system, it takes a high level of celebrity status and wealth to evade professional retaliation and extinction. It is difficult to pinpoint exactly who the ol’boys are through a simple definition. The ol’boy system is a subterranean network that often functions normally on the surface — the judge looks like what we expect a judge to look like. In other words, the judge appears straight in most cases but is able to shift to Ol’Boy tactics to manipulate a judicial tilt for cases requiring an Insider outcome. A tilted case necessarily has an amorphous nature, so figuring out whether or not your case is being handled under the Ol’boy system can be like watching an old fashioned flip-book or hologram.

TRACING THE OL’BOY NETWORK Why do you care whom your judge hangs out with? Is related to? Have financial dealings with? Why would anyone want to trace a judge’s relational network?

Judges have always been closed about their personal biographical information. Since 9-11, they have increased fears of retaliation from disgruntled litigants. Security issues are discussed at judicial conferences and in backrooms. They call for increased state funding for heightened security, metal detectors at every courthouse, and they publicly worry about losers — ‘the crazies’ who might harm them for doing their job. But ol’boy relationships, connections, and private biases unfortunately are increasingly a determinative factor in case outcomes. Bias, prejudice, and cronyism have become impediments to fairness for all. If the personal-relationshipdisclosure system supposedly practiced by judges were transparent, there would be no need for anyone to trace a judge’s network. But as it stands, there is often good reason to uncover a judge’s background, history, affiliations and private peccadilloes. Unfortunately judges frequently withhold critical information about their biases and relationships for a variety of reasons later explored. When a judge withholds facts that can impact the case outcome, the judge, in essence, is challenging the losing litigants to uncover the facts later for themselves. That can be a near-impossible burden. Other judges are unable or unwilling to address their own biases, prejudices, and patterns of favoritism, without a helpful mirror of public reflection and scrutiny. If judges behaved better and consistently, no one would have to trace their contacts, and the appearance of conflicts would all be disclosed in open court, in financial disclosures, and in bios. No apologies needed. The Tracing Process. Tracing private personal hidden relationships is difficult. And even if successful, you receive no reimbursement for your cost, time, or the bad case outcome you receive. And if a judge discovers you are researching his private connections, that could subject you to retaliation by the judge and his cronies.

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However, when a losing party finds they must prove a judge’s secret connection (one element to proving the judge’s ruling was biased and unfair), the best place to start is with public records. I found information about one presiding judge by speaking to people in his community, reviewing two decades of newspapers, finding out the date my judge was admitted to the bar, and researching all monthly bar news from that date forward. I studied his speeches, read transcripts of his legislative testimony, read his interviews and scholarly writings. Okay, he had no scholarly writings, but once he gave a New Hampshire Premiere magazine interview. I talked to people outside the Club. Their information made relational links between this judge and the people he appointed to paid positions in the case. Many of the records and cases I requested were sealed to the public. The judges have adopted a protective system to keep private (a) their conduct complaints, (b) the lists of their special assignments, and (c) the list of cases they preside over. In the end, I got lucky. Because I was a public whistleblower, a mayor, several politicians, two attorneys and some private citizens quietly phoned me with information about this judge, his patterns, associations and his prior abuse of authority. I found out whose funerals he attended, and when he was a pallbearer, along with some photo ops. I felt like an FBI agent tracing mafia dons, and there were parallels because judges tend to hide social relationships from view. Other places to research include the biographical information often published in bar forums and directories, the State Archives, and interviews and articles in magazines, as well as law reviews and other judge journals. This biographical information includes schools, graduation dates and date of admission. These are starting points for undisclosed relationships, and for finding out who are the judge’s friends and classmates. Divorce and court records may provide other information. Sometimes judges are required to file yearly financial disclosures, and lists of financial associates. Be sure to ask for amendments filed after the deadline. Judges also are known to lie on these disclosures, and to avoid correcting and updating to make them accurate. At best, they may be vague court forms, designed to avoid full public disclosures. Court support groups are also good places to unearth patterns. The people who created the bar association have grown up with the institution. They designed the organizational grip on all members by writing the rules, codes, and practices that govern the bar’s existence. In the name of protecting the public, the self-serving, loosely structured self-regulations also serve a bigger and more nefarious function. The dark side of self-regulation is controlling member criticism. Lawyer regulations have effective weapons against members going public with complaints. That’s where the mafia parallels kick in, and it is industry wide in scope.

I GOT YOUR BACK Judge reliance on protection from bar members makes court leaders complacent and ego-driven. Judges have come to expect that what is privately practiced in the courthouse will never be publicly viewed. For them, trusting and protecting the court’s own self-interest is always the ‘correct’ position. The most fertile fields for judicial appointments are former partners and associates, or the state Attorney General’s office. Appointments to the bench only are bestowed upon those the Country Club system trusts to protect judges, regardless of how abusive they may be. The Attorney General office is a recognized pool of politically ambitious lawyers, who share legal experiences and political ingénue at the start of their careers. These kinds of associations spawn lifelong mentoring and patronage. Judges in every state have explained how one or two particular law firms became the go-to pool of judicial appointments, based on the firm’s superior quality of practice.71 The fact is, one ol’boy can watch out and promote a dozen or more attorneys that he knows are reliable to cover for him. It’s a patronage system. I’ve watched my partner hold out potential appointment-carrots to a dozen or more attorneys, that if he was elected, they could expect appointments. His offers went to both men and women. Most were wary enough to decline or move away, carefully.

71

In New Hampshire, Gubernatorial Candidate Mike Gill Sr. writes that the preferred pool of judge-candidates has been only three powerful law firms. See www.stateofcorruption.org.

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THE PATTERN OF LITTLE DOG TURF WARS

1

The judges initiated and ruled on a series of cases in New Hampshire in the 1980s and ’90s asserting absolute judge control, over not only lawyers and those appearing in court for others, but also all state staff and all the ‘court territory’ (inside walls, outside walls, building corridors, bathrooms, parking lots, etc.) Supreme Court judges claimed that state property and state-paid employees were all within the judges’ ‘jurisdiction.’ If you read those cases, identify the sloppy spillover of language — such as misuse of the legal term ‘jurisdiction’- and how judges made each ‘jurisdictional challenge’ into a law-case, so they could claim political ‘supremacy’ of their own rulings. This technique is power-based — the drive to be politically “superior” has resulted in an expansion of ‘judge-made laws’ that systematically manipulated the country’s original social and political order. Judges now routinely assert their decisions are inviolate and unchallengeable by the legislature, and engage in wrangling to move a state/national political issue into court for judges to pronounce what is law. I think this body of law deserves special public scrutiny. Think of this power technique as the court branch asserting domination/power over the legislative branch. The underlying case issues are a territorial dispute over politics (namely social power and money.) The 1980s Court Branch persistently won over a dozen rounds of court cases in school funding, by using this encroaching technique, then declaring judges have the final word. Finally, after a decade of political chaos and tax battles, the legislature regained control. I believe the Third Branch is a culture with a false sense of self-esteem, which actively initiates court process in political issues, so they can assume legislative functions across society. They don’t act in every instance — just the cases where judges personally have a social and political interest. The legal process in these cases, as handled by judges, actively increases social conflict by inserting domination questions into the underlying political question. The technique has been modernly used for seizing judicial power over any number of social issues — from school funding and Presidential election results, to DOMA.72 This judge technique occurred all across the country — the same kind of court-power grab, concocted by one particular generation of elitist men. That typical aggressive pattern of dominating behavior, got assimilated into my consciousness. It was how my partner and his cronies had operated within the legal system for twenty years — to assert social control, and decide cases using non-law political tactics. That’s my association and experience — why specific judge tricks used in case outcomes are unfair and arguably unconstitutional. The favorable outcomes from using these political tactics are based on Insider derived practices and non-logical manipulation of ‘reason.’ I and others who lost in court (because of this slanted outcome-based process) have been painted by court opponents and judges as “angry people” and “losers” because we don’t give up and walk away. Our case losses may get spun in the media by attorney and court press as “news stories” but those stories evade reporting the judicial abuse that occurred. The tactics to manipulate case outcomes, (whether on broad social issues or in individual cases that provide favorable outcomes to insiders) — they are cut from the same fabric as the national take-over movement. It took one generation to establish an exponential growth in the ability to pass off manipulated non-reason, as logical and rational application of law. I learned to identify a variety of bogus manipulations judges use. At the same time overreaching judges grabbed political power for the Third Branch, they began asserting that judges in general hold a new “equality” with the Executive and Legislative branches of government. That they have Constitutionalbased authority to make and define new public policies on a broad range of social issues. The institutional arrogance of the Third Branch is part and parcel of the individual arrogance of judges that a modern public experiences in court procedures. The trend gets lost in the magnitude of the problem: the problem is made up of small parts, one case at a time. But there are identifiable patterns.

72

The Defense of Marriage Act

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§12 Women as Ol’Boys

Some genres of cases are more important teaching tools, such as cases involving 1. Constitutional usurpations of legislative powers. 2. The ex-wives of judges cases because they are loaded with an extensive repertoire of tricks and judicial abuses, cloaked in lawyer-ese. 3. Cases of prosecutorial misconduct, where compliant judges rely on and work in tandem with prosecutors. These are also fruitful cases for deconstruction/analysis of judge abuse.

Judges hold power because we trust them. They expect us to trust them. There is an air of entitlement surrounding the Court system that is intimidating and designed to keep us from questioning whether Judges are trustworthy. Average Americans suspect they are not. “The legal profession does not at this time enjoy that place in the confidence and esteem of the public to which it is plainly entitled.”73

There are good judges, just as there are good attorneys. This book is largely, sadly, not about them. However it is hard for even good people to constantly be good — to be always vigilant and appropriate when there is no incentive, no transparency in their system — There is no deterrent, except personal conscience. An ol’boy network, in any segment of society, is a recognized impediment to outsiders who seek to conduct business successfully.74

12 WOMEN AS OL’BOYS

§

When it became important to have female judges, the unspoken tendency was to nominate trustworthy, compliant women. The term ol’boy indicates a male-dominated society. With increasing social demand for the appearance of equality (especially in the 1980s and ’90s,) men in power in the court system had to appoint some women to the bench. Albeit sparsely. Absent females on the bench, feminists would accuse courts of gender bias, since this was a period of cultural scrutiny. Since 1992-94, it has become necessary in every state to appoint some more women judges, in order to provide a public perception that women participate at the highest levels of the legal system. Namely, that there are women judges. One Boston law school alumnae group claimed ten women from the 1972 graduating class had been appointed judges, and the group speculated in print that this proportionately large percentage was because law graduates from the ’70s had a heightened civic-mindedness.

In 2000, of 871,000 lawyers in America, 21% were female. However women represented 28% of the 60,000 judges, magistrates & judicial workers.

73

Quote of the first executive director of the American Judicature Society, 1918.

74

Levinson and Rosenthal, supra.

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1

I suspect that this generation of women was trusted to be more compliant and respectful in the male dominant court culture, and that this particular group of women were a better-known and more reliable commodity, than say — opening the field to just any female lawyer. If women are to be appointed, is it merely for the sake of appearance or window dressing, or were they to bring and utilize a natural feminine difference, approach, and perspective to the field of judging others? Publicly unspoken was the question: how likely was it that these were merely female versions of the same pervasive social patterns of male dominance already practiced in court? It was a Country Club dilemma — How to add females but not tip the balance of ol’boy power?

After fifty years of integration, exclusive social clubs still exist where women, Jews, blacks and most minorities are permitted entry only as guests, if at all. Other exclusive clubs straddle the issue by creating Women’s Tuesday for golf, or opening the main dining room to wives after four o’clock, or instituting other systems that limit social access at the clubhouse only to white upper-class males. Modern courts are almost as traditional as these exclusive male clubs, but they apply lipstick to disguise that fact. In the early 1990s, to avoid a label of gender bias and political incorrectness, it became expedient to rather quickly appoint a relatively large number of women to be judges — to create a visible presence of women at court. Barely a generation away from their own career roots, these male system-controllers found they had to share their institutional power with new judicial appointees selected by gender. This need for women judges created a double-pronged dilemma: How to entrust women with the power of judging? Then, how to control or coerce women thus appointed into maintaining the status quo and orthodox male authority?

The court had to bring women into the hierarchical ruling class, and yet, as ol’boys, they were fearful about sharing their carefully-guarded authority. Those 1972 women law school graduates were not only a better-know commodity, but it was more likely that they could be entrusted to respect the already-established patriarchal power system. Their law school classmates could be scrutinized, as whether or not they would be appropriately deferential to the club leaders (who had been on the club leadership path since the early ’60s.) But were these women selected because they could be trusted to follow female-subservient behaviors consistent with the expectations of ol’boys? At the time, there were both feminist lawyers and ambitious women, who if allowed entry, might take it upon themselves to reform the insider system. The same problem existed for black men, minorities and others who came from a more repressed social standing or culture. Our laws are steeped in patriarchal power. Whether by courts or legislation, white men have always dominated the ranks of lawmakers. Although the number had grown significantly in the last two decades, in the 1980s, the United States Senate had only two women members out of a hundred senators. Their politic red dresses stood out in a startling display of color in the Senate Class photo. Two red points in a sea of blue and black suits.75 Until recently, powerful female politicians tended to be widows or political spouses, who inherited or reflected male (family) power. The first woman Senator was 87 years old when she was appointed, making her less of a political rival. She served one day.76 The ghosts of governmental power (both in public-policy making and in the court system) wear pants under their robes.

All women have had up til now has been their connections with men. All we have had. No more lives of our own, really, than domestic animals, Alice Munro, wrote 30 years ago in her book, Lives of Girls and Women

75

At the time this book was started there were 2 female Senators; now up to 17 out of a hundred.

76

Rebecca Felton, (D-GA) was appointed to fill a Senate vacancy, and ended up serving only one day.

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§12 Women as Ol’Boys

I suspect that the women who joined the early ranks of judges were culled for a nature and social background that fit with traditional protocols and standards in the male dominated legal community. Court gender bias continues to be pervasive and subtle at the same time. If anything, men have learned how to take their prejudices underground. So it should be no surprise that the women considered for judicial positions, were of provable backgrounds, and had male connections that insured the women were reliable from an ol’boy viewpoint. In one politically incestuous state, the newly expanded inner circle of females included the wives, daughters and lovers of powerful or wealthy ol’boys. Female nominees who fell into these categories were assumed to be both loyal and discreet. Each had an obvious affiliation to her sponsor. When forced to share power, the Insiders wanted to insure the appointee had links and incentives to intuitively know how to maintain the status of men already in the system. A woman who had an ostensibly secret sexual relationship with the Governor, or another man in power (particularly if the relationship was an adulterous one) could be trusted to be discreet, and to appreciate the value of a secret alliance. She was expected to be loyal to those who promoted her. Thus in a time-honored tradition, a woman close to the throne of power could become privileged herself. Whether by appointment or popular election — in the legal system, it is still important to nominate a woman who understands her place in the system. That role includes conducting court business in conformity with the status quo; reciprocating when necessary according to a quiet but elaborate system of favors. Such women understand, without saying, the value of a closed circuit.

WATER CARRIERS (“WC”) A WC woman judge (some males as well, especially a minority male) is nominated because of close connections to the ol’boy network. Sometimes, they are or become willing to engage in reverse gender bias (and other inappropriate judicial behaviors in case handling) as a matter of internal loyalty. Once women pass into the transcendent power of judging, they have many more opportunities (and undergo greater pressures) to quietly assist and protect male mentors. The important distinction that makes this trick hard to follow is — female judge abuse isn’t caused by the party being punished — it is the result of wishes of the judge-in-charge. Think of it as bullying once removed. Rather than a merit system of appointments, which encourages outside dilution of internal power (and greater independence in case handling) the system of nominating women judges encouraged the power-elite to nominate their own — women who were reliable to the Club. Women appointed under the latter system appear to generate more complaints from litigants, and the complaints are of a personal nature. They sometimes appear to lack necessary independence from their mentors to function autonomously. They seem to be water carriers in the legal professions, rather than independent functioning judges of the female gender. A water-carrier judge (whether male or female) has accepted the role of upholding or supporting the ol’boy process. They may have already have a latent propensity to (a) to bully, (b) to manipulate process to force an outcome and or punish a critic, and (c) resent other women. But as we saw from the prison-conformity studies of Solomon Asche, this may be another twist to the shocking abuses that ‘normally’ developed when people were given authoritative power over others. So for a water-carrier female, the insider judge agenda may develop from the assignment of unlimited power over others, or can be telegraphed by superiors without words — for example, the act of her special appointment as a replacement judge (alone) is enough to convey a need for the woman judge to initiate acts to punish or protect one side, or to affect a particular case outcome. In a different kind of reverse discrimination, the divorce case of a judge may be specially assigned to a particular female judge. That assignment implies (wrongly) there will be no issues of gender bias against the female party. In fact, there is discrimination because of gender — but the problem is covered-over, because the female judge has adopted an ol’boy posture for handling such cases. There seems to be a tendency for water-carrier women to build judicial careers as supplicants for the gender biases of the men who mentor them (or correspondingly in this case, to extend professional courtesy to other judges.) A female can issue orders against women, which if made by a male judge, would be seen as blatant gender bias. When made by a female judge, no one believes there is gender bias. 45

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I disqualified a chief judge — a male — in my divorce case with considerable effort and only after filing multiple interlocutory motions for his removal in the state Supreme Court. After stepping aside, he reached out to make a postremoval transfer to a woman judge in a far-away seacoast court. I knew nothing about her, but wondered why the case was sent so far away and to such an inconvenient location? (Lesson one: trust my instincts. If the fish smells, it doesn’t matter what the seller says.) I fervently hoped the appointment of a female judge meant there would be no more insider favoritism in my case handling. I worried that the special assignment was a trap — but the judge was an unknown commodity, so I made the innocent assumptions she would be either a sympathetic female, or because she was female, she would have parallel discriminatory experiences for ‘female issues.’ I was wrong. Most of the other wives of judges were also wrong in assuming as I did. The reassignment turned out to be the Gucci judge in sandals. Her court attire was a short unzipped robe above her knees, with bare-feet stuffed into Birkenstocks. She had no concern about her appearance and often seemed overly disheveled — because impressing the people in court was not necessary. That was not the source of her power– which came from her relationships with two senior judges. As we trace throughout the book, this judge became invaluable to her bosses at the same courthouse, who routinely assigned her to sit on cases where they were disqualified. They cared about the case outcome, and couldn’t stop meddling — because removal begat payback.

WOMAN ON WOMAN I have a friend, a magistrate judge in Taos New Mexico, who loves to go to professional boxing matches featuring Holly Holm. He’s a zealot for Holly Holm fights. The same sexualized excitement underlies the courtroom drama of a woman judge dominating a female litigant. Some tasks and rulings evade the appropriate label ‘gender bias’ or ‘male favoritism’ because a female judge issues them. Women judges do act with malice and bias against other women, but society hesitates to recognize it as that. Some women judges have earned a reputation and court promotions for their willingness to be vindictive against other women, although this is largely anecdotal observation from my experience and those of the other Ex-Wives of Judges. So, the gender-based pattern of court abuse is largely supported by cumulative stories about female judges,77 who exhibit tendencies to over-act vindictively against other women. Essentially the judge clothes herself in the bias of her male peers; she over-acts, and she does what men in her position cannot do without looking misogynist. In order to set herself apart from other women and her sex, and to ‘earn’ the same level of power as her male peers, the woman judge disrespects other women as a price paid for her insider position. Judge Patricia Coffey (since removed from office) carried water for her court bosses since she was a law student at Franklin Pierce. She clerked for Judge Douglas Gray, and wrote in an old resume (my brother Greg found it digging through basement records at State Archives) that she became experienced in rulings from the bench, by presiding over the cases Judge Gray was disqualified from hearing. She was a justice of the peace.78 After she was nominated for a full judgeship, the Chief Administrative Judge J. Nadeau also began naming her as his replacement when he was forced off a case.

Note: A strange procedural point is divorce cases are tried by Marital Masters, not district court judges. (Similarly, justices of the peace don’t have the authority to preside over district court.) That distinction goes to statute, experience and knowledge about divorce law. Inexperienced district court judges (I discovered) don’t know those statutes and specialized requirements, so make up ad hoc79 procedures (out of ignorance) as they go along, (which may be illegal.) Just because judge says so, doesn’t necessarily make it right.

77

I do not discredit anecdotal evidence, as it is the first research in any scientific study — when it is early in problem identification and there is little data to rely on, anecdotal material supports needs, patterns, and justification for more study.

78

Justice of the Peace is a limited authority subordinate appointment, much like a magistrate. For example, they sweat oaths, and may commit a case to trial, but cannot conduct the trial or rule on contempt.

79

Ad hoc means improvised, off-the-cuff, informally made up on the spot. Of course, ad hoc rulings lack uniformity.

46

§13 The Ex-Wives of Judges Club

So why do it? The answer: To retain personal power to control the case outcome and/or to punish the party that caused him to be removed. The judge abuse — includes the transfer of a high-powered Insider case to a female ol’boy. Most judges mis-perceive these to be messy cases with emotional or crying women. Marital Masters don’t like emotion-laden cases any better, but hurt and anger are more common in family court, (more than in district court, where opposing parties usually do not have an intimate history with each other.) A female judge is more likely to exercise disrespectful discretionary controls that a male judge wants to avoid. Female judges lashing out at other females in court also may be part of a visceral pattern — “a contemptuous reaction against people at the level below — reacting most strongly against the [spiral] level they most recently left.”80

13 THE EX-WIVES OF JUDGES CLUB

§

When facing a stressful life change, support groups of people outside your immediate circle can help with shared experiences, advice and talk with people in the same situation. (Mayo Clinic) In 1999 fourteen strangers — all ex-wives of judges and politicians from across the United States81 — met for a first-of-itskind national conference. I scheduled a long-weekend retreat at the Cathedral of the Pines and invited mostly strangers across the country who, after my divorce story hit the national press, had reached out to me with advice or for help. All had been married to judges, politicians or celebrities and each had been financially and personally devastated by judicial handling of their divorce process. We were meeting about the experience of insider treatment — where judges all over the country in different state courts, appeared to be providing extreme preferential treatment to Insider spouses. The women compared notes about how their own divorce and child support cases were handled. The common theme was favoritism for judges and Insiders. It cut across the spectrum of cases and states. The examples were repeated with variations in case after case, and became the initial table of contents for this book. Even ten years or more after divorce, every ex-wife still exhibited some stage of shock, disbelief, and trauma — along with emotional and financial damage — as the patterns of legal abuse unfolded during their story-telling.82 For some, it was a relief to figure out there was nothing they could have done, that the divorce system is flawed with bias and favors for the powerful. Others vowed to expose and correct what has become a national corruption of the divorce process. It’s not just the betrayal of a marital relationship, but the betrayal of the legal process that angered these former spouses. Critics often misapprehend this — they duck and evade the valid criticism of the court process — by claiming this is just the grousing and complaining of (a group of) losers — usually female. They ignore not only fiduciary responsibilities between spouses, but the standards of care, loyalty, competence and neutrality expected of judges. For me, it was all of the above, plus the beginning of a realization that as a category of cases — divorce cases of judges — were the only place to start cataloguing how judicial corruption permeates the rest of the legal system. For only in divorce cases, do judges have to expose themselves to legal process, just like the rest of citizenry. To the extent a

80

Father Richard Rohr, Spiral Dynamics, Levels of Development, Center for Action and Contemplation, December 11, 2015.

81

In the mainstream legal profession, judges’ spouses are women. One male spouse of a powerful Georgia Insider family was invited. Rob was unable to attend, but overall, the legal abuses were perpetrated against wives. Women are representative of the weaker class in a white male dominated court system but, as later chapters show, judicial favoritism is not so much an issue of gender as it is of relative social strength between opposing sides in a closed arena.

Author’s Note: For this reason, and to avoid awkward reading, I primarily use male pronouns to reference judges and use female terms and pronouns for victims. This is based in the gender traditions of court, but of course, there are also male victims and female judges. The terms are for convenience only. In citing specific cases, this general rule does not apply, and I use the correct gender pronoun reflecting the sexes of the people involved. If the abuse relates back to a female judge in real life, I use a female pronoun. 82

Legal Abuse Syndrome was first identified in a book by Forensic Psychologist Karen Huffer about severe mental distress caused by abusive legal practices routinely found in modern courts, and in particular, divorce courts. The symptoms fall into discernable patterns.

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divorcing judge cannot get agreement from the little woman for a mutually-agreed-upon settlement, he must go to court, and be subject to the same laws and procedures as the rest of the country. (The gender pronoun is appropriate — 70% of judges are white/male, 15% are white female; 3% are minority female, and the rest are minority male.) Divorce is the only category of cases where secret insider treatments routinely can be exposed, pinpointed, and catalogued into patterns. The rest of this book is the catalogue of horribles. Actually, judge abuses are each just nibbles — which when put together, make the patchwork of horrible outcomes — unjust, unfair, undetectable, and un-correctible.

AN ACHILLES HEEL Even the mightiest of the Greek warriors proved in the end to have a vulnerability — the heel of one foot — which did not get dipped into the Styx River of Immortality because his mother was hanging on that heel for dear life. There are some really smart, clever, devious people involved in law, but the one place where even judges have to go to court is in family law. If a judge wants a divorce, there is no other way. All that finagling for secrecy that you are going to read about — it happens in judges’ divorce cases because husband-judges can’t avoid the court process, so they try to make it as secretive as the system will permit. If a husband won’t be fair enough to get the little woman to agree to an uncontested divorce, a judge will have to stay married. Judges who go through contested divorces are frequently the ones who will manipulate and abuse — using a full bag of tricks against spouses and children. So you might not be able to find these tricks easily in say — a murder case — but if you can learn to identify the judge’s patterns in his divorce case, it is easier to spot it in all other kinds of law cases. For the most part, judges are like law enforcement officers, Presidents and aspiring politicians. They are expected to conduct their lives to avoid being in court as a party. It looks unprofessional and hypocritical to sit in judgment of others in one court, then walk next door into another court, and argue and maybe lose in front of another judge. So as a general unspoken professional expectation, judges are supposed to stay out of court. Problem is, if a judge wants to change-out his spouse, he needs to file for a divorce as a party, and that means appearing before another judge. Both judges find this somewhat demeaning as an elite class of professional people, but there is just no way to avoid it. So they cope with the process by providing quiet, but extensive insider favors. The best way to divorce would be to settle quietly, and get on with whatever is next. But, under this new system, there seems to be a well-seated understanding that judges can have it all — to get divorced and not have to anti-up; so judges are having contested divorces. Plus some of the judge-spouses (as it turns out) are physically and mentally abusive, are addicted to porn; most had girlfriends; they commit incest with the kids; are compulsive gamblers and alcoholics; they lie, and have a myriad of bad-at-home-behaviors. This has become a bit of a donnybrook for the other judges, and it has become a matter of ol’boy concern — how to control the collateral damage from messy living and messy divorcing. No wonder both New Hampshire state chief judges (both the one in district court and the one on the Supreme Court) wanted to hand-pick which judges sit on these cases. Bad-boy judges need extra help with damage control, or it could taint the image of the judicial profession overall. Domestic violence, adultery, gambling, addiction, porn and incest all turned up in the contested ex-wives of judges’ cases. Plus, the judge-spouses were astonishingly cheap when it came to child and spousal support. So, judge-divorces are the one predictable area where the outside public has a chance to see how the ol’boy system operates to favor a case outcome, and to hide messy and embarrassing facts that are material to the outcome at law. The favors, the bias, the need to silence, and the ability to control and muzzle the other party, have led to a pattern of judicial abuses that are easier to track. My contention is if the public wants to see what can be manipulated behind the scenes in all other types of other cases, then study divorce cases involving judges as parties, especially the contested ones. Out of huge body of federal and state cases, this is the only window to view the encrypted secrets of biased judicial handling. The same secret tricks are used in other types of cases, but you have a hard time figuring out which cases are crooked, and which are straight. Contested divorce cases are easy to identify because each presiding judge has a recognizably favored horse in the race.

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§14 Other Gender-Based Issues

Just as the year 2000 legislative transcripts of the New Hampshire Supreme Court Impeachment case were a once-in-alifetime opportunity to hear judges testify under oath about how they acted amongst themselves, (behind the scenes) in private deliberations, so the lowly divorce cases of judges provide the best understanding of the underground legal system. Priceless. So I focused my research and analysis mostly on divorce cases, because that is the body of law I knew professionally and have written in-depth law treatises. I am convinced family law alone contains tiny windows of opportunity to find out what goes on in the secret recesses of judicial hearts, minds, pants and pocketbooks.

14 OTHER GENDER-BASED ISSUES

§ THE DIVA SYNDROME

Another female-judge gender-based issue is the prima dona or diva syndrome, where a woman judge abuses her appointment to the bench by exercising her court power as an unrestricted and personal grant of authority to abuse others. Her treatment of others is frequently uncivil and lacks cordiality. There is an element of extreme arrogance and self-gratification in her lack of control, as she carelessly abuses court authority without regard for consequences.83 She is temperamental, using anger and emotion to bully people she considers inferior. (A more experienced female judge may learn to mask her emotions on the bench, even if she feels imperious.) The diva judge sometimes will direct her imperiousness against court staff, especially female staff or those males she views as subservient or inferior to her new Insider status. As a tool against other women, the diva syndrome judge is obsessed with asserting her dominance over other females in court. She may feel slighted, inferior, or may fashion agrudge against another female with higher education or social standing.84 Men, more often, will use the “okay-honey-have-it-your-way” mentality, necessary to stay off this judge’s radar, but women litigants, unaccustomed to being treated rudely or as minions of a diva, may react. On the surface, you see a very disrespectful judge acting rudely toward one party — (often that party will be in pro se85.) Make no mistake, this is a gender-based problem, not encountered in male-run courtrooms. If a male ol’boy has determined that it has become necessary or expedient to punish a female litigant or teach her to show subservience to the judge, (this means show, act, and say phrases indicating your subservience)86 the task is best done by a woman judge. Punish does not mean criminal sentencing for crimes committed. It means control of actions, thoughts and criticism of how the judge is administering the case. Control over a person in a civil case (such as a divorce) comes into play when a party perceives something is corrupted about the judicial process or case handling, and begins to question, complain or object. First a judge pretends not to hear, and if the complaint is repeated, she retaliates; the escalation may continue until the Judge feels she has ‘asserted control’ by whatever means necessary.

STRONG-WILLED WOMEN The confusion over the abuse by gender in the courtroom is a fundamental but misplaced impression that a woman judge will rule with more fairness or compassion to other women. It works to the advantage of a society that marginalizes strong-willed women. This is not to imply obnoxious or demanding behavior–merely the expectation that

83

Las Vegas Judge Elizabeth Halverson’s diva condition is detailed in the trial chapter.

84

For a female example, think of Herodias, who married her husband’s brother, King Herod. Herodias carried a deep grudge against John the Baptist, for denouncing her marriage as immoral and unlawful. She manipulated her daughter to ask the King for John’s head on a silver platter, and reluctantly (some say drunkenly,) Herod complied to save face. Mark 6:14-29

85

A pro se is a person who represents him/her self in court, without an attorney.

86

If you have never been in court, this demand for subservience is a startling reflection on the medieval traits we talk about later. There are several examples in the chapter dealing with tricks at trial.

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the party will be treated respectfully on an equal par with those in the Club in the courtroom. She considers herself a peer (intellectually, socially) and may be advanced in terms of education, achievement, wealth, or social position. She expects to be treated with equal respect by the judge. The judge expects her to pander and defer under insider rules. Therefore in court, a party is never ‘equal’ to the judge or the club members, but is a visibly different lesser class. Uppity women87 are perceived as challenging to a judge, (whether or not they overstep the narrowly drawn social behavior boundaries required in a courtroom.) This type of women is more easily punished for her uppence in a female courtroom. Assigning a water-carrying female judge to put down and disrespect an assertive or high-ranking female, not only pushes an unpleasant task away from high-ranking ol’boys, but also assigns negative and unpleasant tasks to a newer female of lower-rank. The best way to obfuscate a pattern of systematic gender subjugation and abuse in divorce cases against the wives of judges, (a social class of female not in awe of judges) is to re-assign the case, so the judicial abuse of a woman will be done by another female. In the big picture, there is a high degree of tolerance for unspoken gender bias in the legal system. Boys will be boys if the boys happen to be ol’boys. When outcomes and practices are gender biased, based on rulings by female ol’boys, finding this bias is even more confusing. I know because I’ve been there. Here are some suggestions if you think you have been subjected to unwarranted judge gender bias: Analyze case transfers and special appointments to specific judges outside the ordinary courts of business — especially if the first judge is male, the second judge female. Analyze and record the personal dynamics occurring in the courtroom to determine if a judge’s posturing is legally based or merely personal peccadillo. For example, is the judge equally rude and deliberately offensive to both sides, or just the female litigant? The difference may be between an alcoholic judge and a gender-biased judge, and if there is a problem in how your case is being handled in court, you should try to figure that out. Stay calm — the judge may be deliberating trying to bait you. Keep reading. Nancy Meersman, former legal reporter for the Union Leader, corralled me in the Superior court hallway to suggest I go watch the Thayer’s divorce hearing. She indicated to watch the judge’s body language, demeanor, and voice. The gender bias was that apparent. I saw a noticeable change depending on which table the judge addressed. For the husband’s table — her posture relaxed, as did her hands and eyes. Her tone was agreeable and helpful. She appeared to be mildly flirting. The other table (with Mrs. Thayer and the Gadfly) was low — she barked and interrupted. Her posture was erect and commands curt, hands pulled back. The reporter was right — obvious enough to be speed dating. A female judge’s flirtation with a husband-party showed up in one of my court cases — where a traveling salesman was ending his 30-year marriage to a religious wife, and the judge was openly admiring of what the husband was selling. I was disgusted, but worked to stay calm and neutral-toned, but still my client ended up with what seemed to be a bitterly short-end of the marital stick for both assets and support, including child support. The judge advised that my client would lose if we persisted in presenting photos to prove the husband’s adultery, and insisted she would proceed only on no-fault grounds. Three times married herself, she said adultery claims were passé.

Disclaimer: This book is not about the bright, scholarly, nominated-for-merit appointments of women to the bench, and I have made generalizations that may sound offensive to those people. So here it is: not all female appointments to the bench are self-serving ol’boy appointments, nor do all women judges conduct themselves in a gender-biased manner. I have made an effort to include acts of good judges in this book for balance, but the profession has evaded this problem, and it needs to be called-out or it will not change of its own accord.

87

A selection of stories about Uppity Women of the New World is the fourth book in a series by Vicki León.

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§15 Trust

GOOD JUDGES Sadly too, this book is not about good judges, for they are not the problem. I don’t know who all the good judges are, or I would publish their names and exalt them publicly. I am not writing to bash women judges, and I appreciate the double-whammy my disclosures might infer to all women serving as judges. No one wants to state aloud the obvious flaws in the court system, and indeed, most attorneys cannot afford to do so. This is one function of this book: to call out the court system to address tyranny big and small. Secrets be known, the function and process of appointing women to the bench may be embarrassing or even ugly. Sometimes, the appointment of a woman may be one of extraordinary skill, temperament, or aptitude. But make no mistake: new political correctness requires the appointment of women only because they are female. Or black male; or Hispanic. In 2016 Justice Elena Kagan said she got things, maybe including nomination to the Supreme Court, because she was female. Affirmative action because the President wanted diversity, she told students at the University of Tennessee Law School. The ol’boy system is most comfortable with a quietly proven female, who believes her career depends on her willingness to respect and maintain the patriarch system. These women are sometimes expected to weigh the needs of the profession over their own idealized understanding of fairness. There is a demonstrable pattern of sexual connections, secret, intimate, and private relationships, and an absence of independent and politically unconnected females to the bench. By making sure that only women vested in the current ol’boy power structure receive nominations and appointments, there is a greater likelihood women judges will support or look away from insider tricks. There has been a price for female appointments, and the price is compliance.

15 TRUST

§

Courts are public institutions. There is no alternative forum where people can be forced to show up and answer legal charges filed against them. Because courts are Constitutionally based, individuals have no alternative but to rely on the legal system to honor and uphold fundamental rights, while dispensing fairness and justice. Trusting the court process to be fair and unbiased is a basic belief in American culture. Judges hold power because we trust them. They anticipate that we will trust them, and act to convince us there is no other choice. The air of entitlement surrounding judges not only makes them intimidating but works to avoid questions about how fairly the process is working, and what to do about untrustworthy behavior. The legal system functions best (for judges) if people do not question whether or not judge actions are reliable and trustworthy. The working assumption of judges is that of polarity — club insiders are good, and outsiders are less good — a duality of thinking that labels and compares, then ignores or abrogates fundamental rights of outsiders through false distinctions/practices.88 As an authoritative public system, it functions with many poor results and outcomes, in opposition to Western concepts of virtue, empathy, justice, and respect for individual human rights. As a new monopoly, this systemic pattern of hostility to ‘outsiders’ (developed across the entire court branch) makes trust unwarranted and dangerous. As internally established, the judge system is a self-regulating one. A judge answers only to other judges. In the extreme, they answer to an internal group of specially selected attorneys, deeply vested within the system. The judgesystem lacks any effective external oversight and is inherently flawed, polarized and untrustworthy. It is often offensive, not only for its invidious and socially-hostile nature, but because the pattern of secret manipulations is an unseen abuse of public trust. Judges claim it is in the public good — to keep private allegations of judicial misconduct. To publicize judge complaints would affect the public’s trust in all judges. But this is another bogus rationalization: judges are allowed to exercise an almost unlimited amount of power over the rest of mankind because they are trusted to be honorable public servants —

88

See Richard Rohr, Falling Upward: A Spirituality for the Two Halves of Life, Jossey-Bass (2011) at 146-148.

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working for the public benefit, and according to the law. Judicial power and privileges come attached to an accompanying responsibility. The ex-wives club stimulated the search for judicial accountability in courts across the country. It is a big thing to seek institutional change. Change is hard. Asking judges to implement a paradigm shift in judgethinking and case-processing involves not only a change in courtroom attitudes, but a change in how they think about people in general. But it is time for a more mature and conscious assessment of judges and how well they function in their role for the rest of society. There are many evolutionary models for development — and even for institutional change. By way of analogy, we could look at the evolution of the Bible — from Old to New Testament. Over time, the reporters of the interactions of God and man have evolved in their assessment about what are proper human responses.89 We now recognize that “Polygamy, slavery, genocide, torture, racism, sexism, stoning, and mutilation of sinners — things that are often fully accepted in the ancient texts — becomes more intolerable as the text matures. God does not change, so much as we do.”90 Judges are a group of educated linear-thinking people — capable also of maturing — of growing and learning including reflection and contemplation — if judges see value in that growth, and incorporate it into their lives and work. I think it is backward and futile thinking to try to force judges to change by trapping them in their petty power plays. The Third Branch could move forward and evolve to a higher plane, not with fear, as much as with virtue. Then the simplicity of grace would eventually lead to the trust that judges currently try to dictate, coerce, and manipulate from the rest of society. “All knowledge is imperfect…and humans always see through a glass darkly.”91 There is hope.

HERE IS THE OL’BOY SYSTEM IN A NUTSHELL The ambitious Caucasian men involved in the 1970s creation of the unified bar organization also lined their own careers, side-by-side with the growth of political power by the Court/institution. Judges not only assumed power over all attorneys, but instituted an organizational grip on the legal profession, through mandatory membership and payments, and instituted a ‘flexible’ internal system of rules, codes, and practices. These justify the bar existence, and are used to control internal criticism of judges, reward conformity, and eliminate outside competition. At the same time, this elite system operates to avoid judicial disciplines while punishing attorneys who expose the judicial system of insider dealing and special treatment. There is no external oversight. As a result, judicial abuse increased greatly over 50 years, but by its nature, it is hard to identify and quantify. Patterns are apparent in divorce cases of judges. There is no effective oversight of judges. Judges self-regulate under secret practices. As a condition of working, all attorneys must pay dues, fees, assessments, and interest from client trust funds — all income to insure the bar’s financial survival. Dues and assessments also create a substantial pool of millions of dollars for acquiring of bar-owned real estate, bar assets, bar salaries and bar perks, discretionary spending, and lobbying for laws that protect Court power. Most bar associations have full-time staff lobbyists, press secretaries, and media managers to maintain a pristine image, to combat outside competition, and to clean up negative publicity. Actually a union, the bar functions as a quasi-governmental-quasi-union entity, under the court’s umbrella of protection and authority. A bar is not a government entity, yet assumes court power — a Third Branch extension of government, and one of many non-transparent abuses of Constitutional authority. No wonder some claim the Constitution is a dusty old dead document, not relevant to modern judicial decision-making. In this way, courts are able to affect public policy and compete for power over the other two branches. Judges function as regulators, political activist, constitutional interpreters through bar-arm activities and political activism. With the advent of a new body of judge-created law, judges have increased their claims of court supremacy. Judges claim to hold the last word on legislation — and circumvent other legislative law-making and bonafide political processes by manipulating around the legislature (or Congress) to force a public policy case into court. Judges now have

89

Remember also that Western Judeo-Christian culture is the gold-standard of behavior for the world. Third world and primitive cultures have other standards, (including more insecure and non-inclusive god/values) but it is not for the more advanced civilization to incorporate backwards morality. Simpler? Sure. But not backwards.

90

Richard Rohr, Three Steps Forward, Two Steps Backwards, The Center for Action and Contemplation, February 23, 2016,

91

1 Corinthians 2:10, 13

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§16 Special Treatment

two back-door methods for establishing and directing public policy, away from the legitimacy of traditionally established political and Constitutional process, and into the narrower interests of judges. These are not elected representatives. So this is a dangerous development for a democratic society, even if it is a federal republic.

The long-term consequences of a unified bar system were not known a half century ago. By regulating lawyers, judges control attorney-autonomy including the right to work and right to speak. The power of regulation has become the power to silence institutional criticism. The unified bar works as a kind of unauthorized mini-government over lawyers, outside the protections of the U.S. Constitution. A star chambers for attorney discipline. As a result, there is little knowledgeable criticism of judges. Insiders get rewarded with lucrative appointments and fees, with no oversight on billing, also with institutional honors, promotions, and lots of internal awards and bar perks. Insiders who don’t keep silent, get punished, favors are removed, and that isn’t enough to quiet a source, they will be vindictively targeted, excommunicated, and worse. The long term unintended consequences of judges creating a system of exclusive control over lawyers also created a system that thwarts criticism and dissent and begets authoritative abuse. It is inherently untrustworthy because of the lack of transparency, accountability, and external oversight. It trusts individuals with a high incentive to game the system. As outsiders, we don’t see the how — but intuitively recognize that court has evolved to a fearful place that is unsafe, untrustworthy and unproductive for lay people.

16 SPECIAL TREATMENT

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Special Treatment is the second clue that a judge might not be fairly handling a case Virtually every member of the Ex-Wives of Judges Club felt pressured by the presiding divorce judge to accept some form of special treatment — usually initiated and imposed by the judge (or sometimes by the head clerk-of-court — who usually is an attorney.) It was suggested as a personal favor from a thoughtful judge. In the beginning, judicial language, voice tones and mannerisms, all suggested the presiding judge cared about them. Later, these special orders were inevitably used to harm them. It’s a set-up. Judges’ wives are used to receiving deferential treatment in society. Almost universally, they confessed to an initial feeling of being flattered, when presented with the offer of special treatment. In the initial court hearings, only one of the fourteen, (namely me — the attorney) refused the judge’s offer of special handling. At the first hearing, most of the wives were not represented by an attorney. Actually, many had trouble finding, paying, and keeping any attorney to represent them. No attorney wants to oppose a judge in court. Each wife initially agreed to some or all of the apparently helpful suggestions of the presiding judge. These suggestions included sealing, gagging and no-talk orders. Also sealing the record and sealing the hearings. One agreed to have her divorce filed as Jane Doe vs. John Doe, since her husband was the Attorney General. Her judge assured her that he needed to rename the case to protect her from sensationalism and embarrassment, since ‘ordinary’ state law required divorce cases to be unsealed. In the universal experience of these ex-wife club members, the divorce files of every judge and powerful husband was impounded, sealed, or otherwise restricted from public view. This occurred despite state laws making all court records (including divorce) open for public inspection and copying. The wives had no idea what the law provided, and no one in court told them. The wives brainstormed a list of 29 examples of other kinds of special handling. For me, once these were identified, they ran like neon-colored threads throughout each case. Not every case had ever trick, but there was enough overlap to

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see illegal and abusive patterns. Later, after the wives learned to recognize the threads of favoritism and bias, knowing about these routine tricks made them feel violated. They trusted the judges to do right, and had been pushovers for abuse. Frankly, each one was blameless — they trusted the judge and were misled. It was abuse of office, and each was a victim.

STIPULATION The easiest way for a judge to justify special treatment (if later questioned) is to initially get both sides to agree to what he is suggesting. The judge can later claim that he was merely carrying out the wishes of both parties.92 In order to get agreement, the situation is explained as a favor for the non-club member. One sided favor. Eventually though, the benefit of the special order will help out just the Insider, and will harm the non-insider. For example, an early gag order is effective later for damage control, if the side not favored, down-the-road decides to talk to the press or complain publicly about the special orders. Then the complaining wife will be subject to threats of contempt of court and even more law-style punishment. Ex-wife member Katherine Thornton found she was not allowed to see her court record because it was impounded. The clerk of court claimed the impounding was with her consent, although she has no memory of being asked or of giving consent. Long after her divorce was over, I filed an appearance as an attorney to help her see those records. My request for records was denied. Kathleen petitioned for a hearing. Months later, I was allowed to view the court file, but she was not. I could make one copy, but not my paralegal and not Mrs. Thornton. The clerk of court hovered, telling me repeatedly not to remove the file prongs, implying I would remove original documents. The court file was missing the child support calculation documents, including a letter on court stationary from her husband’s supervising judge, incorrectly depressing by almost half, Judge Edward Thornton’s future judge earnings. Mrs. Thornton suspected that monthly child support amount (based on that missing Insider-letter)93 was ordered far below mandatory state guidelines. She long suspected the special treatment in her case was unfair, but she lacked specific knowledge, and an independent ability to insist on access to her court file. The disparity between her husband’s legal and professional status as a judge, and her own as a stay-at home wife, (and unable to afford a lawyer) made it extraordinarily difficult for her to hurdle the first legal barriers (sealing) ordered in her case.

ANOTHER EX WIFE CLUB EXAMPLE — THE THAYER CASE Stephen Thayer was a sitting state Supreme Court judge when he secretly began pre-planning divorce from his wife Judith. By the time he filed in court, (a year later) he had set himself up for a marital windfall with an Insider lawyer and a ‘family’ accountant. The case was initially randomly assigned to Judge Groff — a male Judge in Manchester, New Hampshire. But just before the first hearing, Mrs. Thayer was directed instead to the courtroom of Superior Court Judge Carol Conboy [pronounced ‘con boy’]. As a well-educated woman and Chairman of the State Board of Education, Mrs. Thayer was savvy enough to question the court clerk on the spot, about why the judge was changed. The lawyer/clerk admitted her case had been ‘specially re-assigned’ to Judge Conboy at the request of her husband. It was a favor. Later the court clerk denied this conversation, but the wife and two witnesses each wrote out affidavits, filed them, and asked for a change back to the original judge. Judge Conboy heard this motion herself, and refused to take herself off the case. She blatantly presided over this debacle divorce (it was national newspaper and magazine headlines for several years) and always denied allegations of prejudice, favoritism, special handling and biased outcome. The case outcome was appealed to the Supreme Court, where Judge Thayer sat. He secretly attempted (again) to influence the selection of his appeal panel. When reported, Judge Thayer asked for leniency and argued that for over a decade it was acceptable for the judges to evade the Judicial Conduct Committee reporting requirements for judge-infractions, by issuing a secret letter-report to themselves. That’s how the Supreme Court judges resolved a judicial ethics problem in the 1980s.

92

This is called a “stipulation” of the parties. It is not appealable.

93

The same kind of letter (anticipating a future loss in the judge’s income) was generated by the judge/boss of the judge/husband) in the Thayer divorce case, several years later. Judges trade around their tricks within the Club, so you see them used over again in different cases, with entirely different players.

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Judge Thayer identified an earlier case of judicial impropriety that was handled internally by Judge Souter (then on the State Supreme Court.) Chief Judge David Brock had initiated a phone call to a presiding trial judge (Judge Gray) during trial — to influence a case outcome involving an influential State Senator.94 This example of internal non-conforming discipline of a high-ranking judge occurred a decade before the Thayer misconduct. Justice Thayer argued it was established protocol to avoid punishment of judges under the Rules of Judicial Conduct. He was right — it showed the high court judges did not follow their own rules when it came to judge ethics code violations. The earlier ‘private’ censure letter was authored by Judge David Souter, (later of the U.S. Supreme Court) and signed by the rest of the Supreme Court bench, then secretly filed internally, with no other action, discipline, or docket. Following these disclosures, the legislature voted almost unanimously to conduct an impeachment investigation of the state Supreme Court in 2000. Both the legislative investigation and Senate trial were carried live on public radio and television. Even people who have never been to court can spot this easy-to-recognize warning signal that indicates someone at court may be monkey-ing around with your case. For those cases subject to repeated acts of special treatment, the acts get woven throughout and often are thought to be inexplicable arbitrariness on the part of the judge. It is much more purposeful than that.

“TREAT ME AS ORDINARY” Repeatedly I begged the judge just to treat me as ordinary in my own divorce case. He kept telling me how kind he was for instituting special orders and acts. The judge elaborately pointed out to me that I was getting a favor from him; he was protecting me from publicity and embarrassment. He said he wanted to make my life easier. His tone was solicitous. He was insistent. I actually felt rude when I refused his help, and made official objections on the so-called record. There actually wasn’t a record, but I was in shock and that didn’t register at the time. His so-called help included the following dozen and a half examples. I thought then that I was immune to any more public embarrassment, having discovered only several days before that I had been sued for divorce. The story was on the front page of the statewide newspaper. My husband filed for divorce and leaked his court filing as a news story without telling me, following his disappearance over Thanksgiving. I was wrong about being immune from embarrassment, but this whole humiliating legal process was highly public — with a media smear-campaign orchestrated by my ham-bone husband. I stayed quiet until weeks later (until encouraged by wonderful loving staff and friends) to fight back. They kept me praying to find my course. I finally woke from great emotional distress and struggled to be my own divorce lawyer (which I was professionally well qualified to do.) Surprise, betrayal and overnight poverty caused great emotional trauma — which was disorienting and disabling. My fighting, over time, clarified. It didn’t always focus in a winning strategy, but that’s why this book came into being. The deck was stacked, but I didn’t know that. So my legal fighting was not so much against the individuals, as against the judicial process — a process I intellectually and professionally knew was wrong — and where nothing was conducted according to established law. Being both a divorce author and attorney, I knew this general body of law very well, and divorce practice specifically. The procedural process was all very screwed up. As I began raising objections, suddenly the presiding judge and my husband wanted everything in our case sealed up and confidential. The judge’s prior so-called sympathy toward me? Turned ugly and very personalized. Your case will likely have many other examples,95 but The Exercise below is one in discernment — the first stage of learning to identify special acts of judges, which are substituted for court rules or standard legislative procedures, or that fall into a legal crack. Otherwise judge manipulations get disguised as either a “discretionary act” or just a series of “harmless errors” (if raised later for judicial review.) 94

The Home Gas case involved New Hampshire Senator Edward DuPont. The Senator presided over a Senate Committee where a judicial pay raise bill was stalled.

95

These are mere examples — in later chapters, readers are taught how to pull apart any case and to make a similar list. This is all background work for the logical process of deconstructing how a judge administers a case. From start to finish. Yes, it’s tedious. If you don’t have a case to deconstruct, the exercise is about individual empowerment — and you will end up with the common sense tools necessary to fairly evaluate what actually is going on in court — beneath the imperial language and rulings. I lived out West, where there are gold mines. It’s like digging for gold — you don’t just walk around a field picking up gold nuggets — you actually have to do the hard work of digging and sifting and washing away the mountains of stony debris to find treasure.

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HOMEWORK TWO — This Exercise is to make a written list of the ‘special treatment’ experienced in the case. It may help to make a second column listing the real process, treatment, law or rule.) This is my quick summary list. It’s incomplete and only covers the acts of the first judge, not his replacement. It takes a couple efforts to try to make the list succinct, and then to add the labels. Start by listing errors, flaws, and concerns chronologically as they occur in the case. Plan to give yourself a treat at the end, because it is disheartening work. Then put the list away and let it percolate. The patterns will start to develop into clues about what’s really going on. Over time, they may relate to not only to each other, but to newly discovered facts, and across other cases. 1. Case assignment. Not putting my case into standard rotation for judge-assignment. 2. Not assigning it the same day it was filed (waiting two weeks to give it a docket number and judge assignment (by order of the chief judge). 3. Being dishonest — the chief judge ‘specially assigned himself to hear this case, but when asked later, he said he merely granted a motion to assign the case to him. But no motion was ever made. 4. Forum. Assigning a divorce case to the district court (with a judge), rather than by standard procedure to the marital/family court where it would have been heard by a marital master. 5. Rush to the first hearing. Scheduling the first hearing as an ‘emergency’ on an ex parte basis for one side. There was no emergency, time for filing my answer had not accrued, I didn’t have time to hire an attorney, there were no financials filed, and I was given less than a ½ day’s notice to appear at court. 6. Disparate handling. On the other hand, the same judge later refused to delay another hearing for one hour, in a bonafide life and death emergency case/conflict. (I was an hour away in Manchester at an emergency hearing for a client whose toddler children had been kidnapped from preschool by his estranged suicidal wife.) By refusing my request for a reasonable one-hour continuance, (called in by the clerk of the Manchester court) the judge lifted a stay to release a large amount of cash by default without hearing. 7. Rush. Prematurely hearing and ordering permanent property division of substantial assets — out-of-sequence with the legislative process, without proper notice, (and even before a responsive answer was filed to the original libel.) 8. No record. Conducting several critical hearings, ad hoc in chambers, without attorneys, witnesses or record; 9. More rush. Shortening time requirements (both statutory and court-rule) for almost every filing deadline from the first hearing through the trial date. 10. More hiding. Sealing the record. 11. More hiding. Hiding the hearings (by removing case and docket information) from court video monitors, and instructing bailiffs to keep reporters and public out of the hearing rooms; and moving hearing rooms at the last moment, so non-parties could not find where to go; 12. Initiating new non-legal court roles. In my case, that would be the creating of a GAL for my extinct business interest. 13. Being dishonest again. The judge asked each side to submit a list of names for this GAL appointment, but he never waited for my list before he phoned the appointment to his BFF. Later he later said it was from the list.

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14. Assigning judge powers to the GAL appointee to conduct “private hearings” away from court (which I had to pay for.) 15. Initiating a non-statutory special assignment that evolved over time into an extrastatutory case process. 16. Instructing the Clerks of Court to fax documents filed at court to his judge’s home. 17. Making a procedure for court filings. The parties were instructed to filed pleadings first with the attorney/friend for review and pre-hearing, before filing in court. The court wouldn’t schedule hearings until after the GAL/friend held a hearing and made a recommendation. 18. Forgetting to disclose conflicts of interest. Appointing an intimate friend to fill several unique paid court roles — created without statutory legal authority. 19. Expanding the special appointment role, duties and authority. This included de facto, treating me as though I were in receivership; deputizing his appointee; granting extralegal law enforcement powers, (including entry, search and seizure, use of any and all force), also quasi-judicial powers to hold hearings, find contempt and assess fines. All without fundamental due process. 20. Bank function. Confiscating $100,000 in cash for safekeeping by the court clerk; issuing orders to spend down those funds for judge-initiated costs. 21. $ accounting errors. Mathematical errors in accounting of the so-called clerk trust fund — always favoring one side. 22. Changing the nature of funds and assets. For example, transmutation of separate funds into joint property, then ordering “his and her” payments and expenditures out of the blended fund. 23. Changing

the

nature

of

marital

assets.

Declaring

my

law

partnership

was

a

sole

proprietorship, and selling it by emergency order prematurely without due process, without financial affidavits or FMV valuation. An early ambush. 24. For discovery, substituting new, unique processes where his friend conducted both side’s discovery — in place of standard rule-based discovery. This processes thwarted access for the non-insider. 25. Required attorney hourly billing and payment for the new, non-rule-based discovery and hearing processes. 26. Alteration of the court record to remove damaging embarrassing exhibits without notice or hearing. 27. Assigning flawed contempt judge powers to an attorney friend. 28. Assigning supra-law enforcement powers to the attorney friend. [Note: These last two unique process evaded all normal law enforcement procedures, and lacked any statutory and Constitutional authority.] 29. When finally recused, hand-picking his own successor, despite being incompetent to act; 30. Continuing to influence the case long after his disqualification from behind the scenes. 31. Ordering a case transfer in violation of rules of forum and venue (to a distant county where none of the parties or interveners lived or had contacts.) 32. Instituting other gratuitous non-uniform judicial acts of special-ness throughout the case, which could not be undone or mitigated, even after appeal and remand for new trial. 33. Coercive orders to accelerate a premature trial (I named this anticipatory contempt.)

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34. Misuse and misunderstanding of coercive contempt to create an incomplete court record, rush trial, and avoid standard discovery processes.

1

This is my cursory list. Some of the 33 items are deconstructed later to demonstrate both the detail involved and the illegitimacy of each individual act. This is a pattern of special handling that evades court review and correction, yet each act does not pass constitutional scrutiny for legitimacy in the practice of law.

Judge testimony to the state legislature. Years later, I read a legislative committee transcript where my first judge testified that he always assigned himself to hear the divorce cases of other judges. He was a chief administrative judge and (despite his lack of knowledge and experience in family law and other specialty practice areas) he apparently assumed that whatever authority he chose to exercise was an occupational right. He testified that only 20% of his judgework involved hearing cases — mostly the special high profile cases he cherry-picked out of district court case filings. He implied that a case assignment to him was a great courtesy the he extended to the wives of his court colleagues. Presumably, every wife whose case he took over also received a litany of illegal special acts similar to the ones I experienced. Wary enough to know I was the poorer, weaker, younger, not-as-important and female in my own case I objected to each of his special acts. He denied every objection. Repeatedly he insisted he was doing me a favor. He became visibly angrier with me as I continued to object. I said aloud, “please treat me as ordinary.” Later, each of his special orders came back to bite me. Each was a set-up for a later legal abuse. The judge acted as though he were a caring judge, who was concerned about me personally. He can be friendly, intelligent, and witty. At professional social events, I have seen him extrude political charisma.96 He has retired from judging and apparently later fancied himself an unofficial MiddleEastern (Syrian) diplomat. Anyway, he was into flaunting the perks of being court royalty97 when he was my divorce judge. Special favors are set-ups for one side. What I did not anticipate was that the special court favors by a judge were setting the stage for the hardball legal tactics later used to throw the outcome, beat-up my lawyers, experts, staff, friends, family and me, all while running up enormous legal costs. Also, these judge-special-favor-orders were used to keep out reporters when they later tried to cover and report at least part of the story. The Associated Press eventually became the sixth party allowed to intervene in my divorce case.

17 COMPASSION

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Compassion is supposed to be a morally desirable trait for judges Another form of special treatment involves compassion. Of all the virtues, compassion98 plays an essential role in the administration of justice by balancing punishment with mercy, error with learning, and atonement with love. It prevents lopsided outcomes, greed, and vengeance that otherwise would work to corrode our unique American character. Yet it is the virtue that appears to be most lacking in the special type of personality of contemporary men who sit in judgment over others for a living. The dichotomy of Judeo-Christian compassion, compared to the attraction to extreme authority, represents a moral dilemma for modern court practices. For a century, the issue of punishment and vindication (punitive justice) has outweighed notions of virtue, individual rights, or social justice. Each political model can be traced back to diverging moral beliefs. This is not a moral marathon, or a religious schism, but the art of balancing character — to prevent fervor from overtaking justice from both ends of the moral spectrum. The court’s present inability to utilize compassion99 in the justice system can be linked to two factors. 96

At a Boston University Law School alumnae dinner, I saw the same kind of energetic magnetism that I came to recognize in certain other politicians — an enthusiastic approach that suggests superficial ’caring’ for others. But it a shallow behavior without the empathy that comes from true compassion and actual understanding.

97

For example, he drove a Rolls Royce with a custom license plate Chief 1.

98

Compassion: Sympathy for the suffering of others and the desire to help. Encarta World English dictionary, on-line.

99

For followers of Jesus, this may be following a model of loving others, including strangers, and forgiveness.

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My theory is inherent personality traits of judges inhibit them from exercising true compassion. It is based on early studies of both Meyers Briggs and Enneagrams, and a preliminary study of dominant attorney personality traits from the University of Dayton. It’s not random that we have the kind of people on the bench who tend to all think alike — but at the same time, very differently from the rest of the population. Identification of personality traits helps to explain what might attract certain people to law and then drive them to become a judge, (but not other types of men and women, who have better social traits for the job.) It also helps explain inherent neurological strengths and weaknesses that affect judge-though processing and brain chemistry. For example, the tendency to think that helping people is subservient behavior (doing another’s bidding) — is one of those inherent traits. It also suggests why judges do not make especially good bosses — unless their employees (or spouses) are subservient. People best able to climb to the rank of judge in modern courts arguably have a different baseline. Sometimes special handling in a case indicates a need for judicial compassion.100 But is this to be found in the system? A judge may try to balance inherent inequalities in the court process by offering a courtesy to the lesser party. Usually this is something like ordering in-chambers interviews for children, or use of a therapeutic model instead of the criminal justice route. But rarely will a judge venture into compassion in the areas of sentencing, second chances, redemption, treatment of children and young adults, and media handling, when the defendant is not economically privileged. There is a lot of heat in the politics of punishment (versus compassion),101 so whether there can be both in justice is a complicated moral issue. But compassion –(some Christians express it as unconditional love of others) is not a nonissue. As a national virtue, compassion warrants inclusion — both by individual judges and by lawmakers. In most cases, this kind of policy introspection gets precluded or ignored — due to the dominant values and manner of thinking of those in control. When people with excessive-authority-values dominate courts, there is an inherent tendency to devalue and discredit compassion and other socially desirable traits. Can we really say courts are in the business of justice when they exclude the practice of compassion? The statistic — that one out of every 40 Americans (about 3%) is or will be incarcerated — makes America the world’s most incarcerated citizenry. Attorney Thomas P. Ehrlich claims the U.S. contains a quarter of the world’s prisoners. Americans are confined longer and more often than similar offenses in other countries. This treatment is but a chip off the public-policy block that deserves major re-examination.

For the question of whether compassion can be taught, my nomination would be Dr. James Doty, founder of the Stanford University Center for Compassion and Altruism Research and Education. (Part of the Stanford Institute for Neuro-Innovation and Translation Neurosciences.) One of his teaching seminars on cultivating compassion included The Dalai Lama and Archbishop Desmond Tutu together! in Seattle. Doty has a lot of good practical and health reasons plus he puts on classes for encouraging people to learn and practice compassion. But what resonates most is his notion that compassion has a profound effect on how people perceive their responsibilities to others.102

When the parties are clearly not equal in their ability to present their side of the case, justice is often better served if the judge works to balance resources — and this involves a working understanding of compassion. This is especially so when the opposing parties have special responsibilities to each other, such as the fiduciary relationship that exists at law between husbands and wives and their children (and to a lesser extent, to other family members.) One European Court concept, Equality of Arms, describes situations where a judge is expected to try to equalize the resources of parties.

100 Compassion isn’t something one deserves or earns or trades. To weigh opportunities to extend compassion, think of having a grand dinner, but inviting only those who you think can never repay you or reciprocate. 101 Social justice is the name of a political ideology based on matching problems with resources. As with every movement, there are political labels, but the underlying ideas recognize an alternative to the punitive-only system presently practiced in court. Presently there is a structured inequality in courts, and social justice is one alternative. 102 James R. Doty, M.D. Into the Magic Shop, A Neurosurgeon’s Mysteries Random House (2016); see also Elizabeth Svoboda, Can You Teach Compassion? Stanford’s Investment in Altruism Research, http://www.slate.com/aricles/health_and_science/new_scientist/20

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For example, a judge may order a husband to pay his wife’s attorney fees, so she has similar or adequate resources to present a defense. Similarly, a judge may order an interpreter for a non-English speaking person. Such special treatment is acceptable — even desirable — under concept of fairness in judicial administration and justice. There are three points to our national moral value triangle that impacts the administration of justice. Punitive justice — highest respect for authoritative and a need for retribution and vindication Constitutional equality including the equality of all individuals and civil rights Moral virtues including the sanctity of love and compassion, based on national founding principles Each American value represents conflict with the goals and moral values of the other two points. The relative degree of each angle of the triangle is a matter of contemporary politics. Each point represents an indispensible American value. Purging one or two points from the justice system flies in the face of our country’s character, and brings about countless objections, appeals, and strife. So the ‘points’ spar with each other in many court cases. But it is the personal bias of judges (to favor one point to the exclusion of the other one or two) inserted into the case that illegitimates the outcome. The outcome does not reflect balance, and therefore the outcome appears unfair. Unjust. This is why good judging is a form of art, not a regime. Measured by the degrees in each angle, the American triangle is not equilateral, and currently may be so flattened as to be merely a line, not a shape. A fine line exists between acceptable judicial intervention in the trial process and undue influence. We expect judges to exercise their power only on the ethical side of the line, and to act to maintain an even balance of fairness throughout the case. Fairness takes a back seat when special treatment is handed out which is illegitimate. The research focus is not to balance the three factors, but to identify when judges cross the line.

HOW DOES A QUIET LITTLE FAVOR FOR ANOTHER JUDGE HURT THE PROCESS? Judges who provide a quiet little favors also provide an unfair advantage for or against one of the parties based on status. It de-legitimizes the entire legal process. It doesn’t take a law license to determine which side is more in need of equalizing treatment from a judge. So why do so many cases explored throughout this book demonstrate that extra judicial help routinely goes the wrong way? Here’s how to determine little manipulating favors.

SETTING THE STAGE Look for orders of special treatment to surface early in the case. These often set the stage for more oppressive insider manipulations later on in the case. A sneaky judge trick rarely exists alone. Expect to find an album of tricks, especially in high stakes, high profile cases involving insiders. Tricks are built pyramid style, one on top of another. More sophisticated tricks require set-up, and are developed in stages. Quantity. The overall number of tricks ultimately utilized in a case may depend on the degree of fight, or the relative strength of the victim. Also, a judge may become vested in appearing personally honest. If caught manipulating the case, so he may overact, in order to control the case outcome and direct any collateral damage away from himself. If the circumstances of the case create a need for cover-up, expect the number of tricks to increase exponentially.

TIMING THE TRICKS Judge tricks are employed in both jury and judge-determined cases. If basic tricks are applied early in the case, the weaker party can often be moved into an unrecoverable position. This early strategy greatly enhances an insider’s chance of an early win. Look for any of the following early strategy ordersEarly restrictions including secrecy Unnecessary and unreasonable limits on discovery so the side in control of information is able to avoid providing it to the other side, by a series of delays, expense charges, special production limits. Setting unreasonably early trial dates, especially if one side lacks discovery; 60

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Any act which deprives one side of real access to information controlled by the other side. Other kinds of stage-setting preferential treatment Orders with limiting verbs like, sealing, gagging, closing, impounding, restricting, (which can later be used to threaten and punish one side with contempt.) While these orders may appear to be bi-lateral, the weaker party is the one blind-sided (determine if there is a bottom-line or net affect hurting only one side.) Largely, special treatment is a common sense thing: try to see if you can spot any undue special treatment. Later, I’ll show you how to expose such tricks by scrupulously unraveling judicial acts and orders. For now, just watch for anything out-of-the-ordinary in the judge’s handling of the case in the early stages. People ask, if I’m not an attorney, how will I know when something is out of the ordinary?

Arcane language and special rituals While it’s true that non-attorneys often don’t know the arcane language and the special customs and rituals, they do have tools available that can help them decipher the rituals and elaborate Insider protocols: Actively Listen. Often a judge will tell you, using words that indicate the action or order is special, secret, or exclusive, so listen carefully to the exact language used and take detailed notes to remember specific language. Use common sense when reflecting back on each day in court. Reflect back from a bird’s eye view of the day’s proceedings. (Try to be emotionally detached.) Learn how to detach personally, and this is hard. Court can be a modern gladiator ring, full of testosterone and brain chemistry. In law school we were encouraged to drink. McGeorge had a cute basement tavern. I could not get a soft drink or juice at school functions — only free alcohol. Alcohol is one way to decompress, but there are other healthier ways. Never, never go alone to court. Take a friend or associate to court to get a second impression and to help record exactly who said what. Plus, you can never predict what will happen.103 You can always be arrested on the spot. Even in civil cases. If you get arrested, the friend can act to get you help. You could be locked up days, weeks, years, and indefinitely — even without formal charges filed. Order transcripts or copies of the audio records of each hearing. Transcripts are expensive; audios are relatively cheap. You won’t know until later what you will need out of them. So just order and store them until you need to trace a legal insider pattern later. Patience. Think of the judge’s entire case handling as watching a turtle come out of its shell. Wait. Watch. And stay alert. Do not get informal or too trusting with the judge or the other side. Court is not a social event. Tune up your intuition and watch to see if a judge acts in any way to favor one side over the other in a repeated pattern. Decline special treatment, unless it is clearly a benefit designed to make the process ‘more fair’ for a weaker party. Otherwise, acts of special treatment are generally indicators of undue influence at work. Watch for out-of the ordinary or unusual treatment, and trace how it originated. Be wary if there is some exclusive or secret aspect suggesting this case is specially assigned or administered. Make note of all judicial favors offered or insisted upon as a special judicial courtesy. If it’s really a favor, you should be able to decline it.

103 I have been accused of being over-dramatic here — so just keep reading for case examples where this happens enough to warrant pre-planning. Do not underestimate the ego-fed power of a judge. And yes, this happens in America.

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18 THE COURT’S PRIVATIZATION OF MORALITY

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The position of morality in law began as a revolutionary social declaration — America was uniquely founded on principles of a moral and transparent legal process, to insure fair and equal treatment in courts.104 Since the first colonization of America, morality had both a legal and religious function of government. In the beginning, English laws were based on ancient Judeo-Christian religious principles and the Roman Pope was the final arbitrator of law. Later, under the English crown, justice combined both religious and royal authority in a kind of arbitrary supremacy over everyone. Morality was defined by Christian church-doctrine. This was the first form of law exported to America. So our earliest laws and how they were applied to subjects, reflected common values of a homogenous white European immigrant culture. This is not to say there was not conflict over defining what was moral. Competing religious doctrines in America during the 1500 and 1600s resulted in laws about morality that were unfair and brought horrific punishments in the name of justice. Over 300 years new influences have affected American court doctrines. The country evolved beyond the early morality that dominated early settlements, and went through various religious and moral movements. These created a dominant social value of independence from tyranny, leading to the American Revolution. Secular law. Christian religion and its moral values are now under strong attack by courts, which have moved to a more secular and flexible interpretation of law. In court, the moral ground has shifted. It is now a matter of evaluating the proper role for our foundational morality, when assessing the legitimacy of this widespread judicial change to secular law. Throughout history, courts have hesitated little when it came to issuing rulings that alter the social landscape. Under the traditional safety and welfare clause in the U.S. Constitution105 judges may do so on behalf of the greater community. The simple rational used is — it’s okay to decide cases which alter the social landscape and take away state and personal constitutional freedoms, but only if the court is acting in a paternal sense to make and safeguard a good society.

THE QUESTION OF WHAT IS GOOD FOR SOCIETY HAS RADICALLY CHANGED IN LAW. THERE ARE THREE PRIMARY REASONS: Moral relativism Fear of religion Non-strict Constitutional interpretations

REASON 1. MORAL RELATIVISM The court’s concept of morality has changed dramatically. A popular mid-20th century doctrine called moral relativism has been broadly embraced by judges and is often reflected in contemporary court rulings. The doctrine came into national prominence during the 60s Cultural Revolution, along with other liberal social developments (such as the invention of birth control pills, the sexual-freedom revolution, and the resulting devaluation of traditional families as a bedrock social unit.) The doctrine rejects universal truths about morality; it relies instead on personal situations and values. This leads to case-by-case decision-making.

104 See Appendix A, The New Hampshire Constitution, Bill of Rights, Article 4. This unique concept is also embedded in the Declaration of Independence and the United States Constitution. 105 U.S. Constitution, Fourteenth Amendment.

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Once a judge embarks down this path, for example, he allows a subjective moral relativism value (his own) to affect the decision of one case. The next case can justify another jump, then another. Instead of basing outcomes on what happened in the past, judicial reasoning is always jumping forward. Each uses moving circumstances and evolving morality to decide cases. Under these circumstances, logic and reasoning develop gaps and holes that were once filled in with stability in case law and underpinned by morality. The result has been a national tendency for judges to avoid defining what is morally right and wrong. Moral codes (other than their own) are too limiting of judge power, when they decide to fashion new and creative answers to evolving social (political) questions and values. Because they are not sure what aspect of a changing culture current morality is based upon, judges shun morality altogether. But foundational morality is the bedrock of law. We are now a country with many pockets of culture, not only from waves of immigrants, but because of the homogenizing of Americans through mass media, marketing, the internet, and cultural and generational movements. Confusing thought it may be, judges should not be purging foundational morality from their decision-making and rulings. Morality is still the basis of justice, and the tough work of judging may be to determine how that morality applies in times of change.

REASON 2. FEAR OF RELIGION Judges also fear of making rulings with any religious connotation or any reference to God. This further prevents them from taking any stand about moral harms in the community. They sometimes cite, (not-always-logically) that First Amendment considerations prevent them from ruling on whether an act or issue causes moral harm. Modern judges’ fear of acknowledging-a-higher-power-by-name undermines Constitutional principles and their ability to do their jobs. The duty of individuals to a higher authority is a basic concept leading to the unique American concept of individual freedom. It is not the province of judges to purge God from government. In fact, it is important for courts to acknowledge a higher power in law in order to be true to the underlying principles that founded this country into a nation. It also is a check on judges who may have a tendency to think they are each little gods in the courtroom. Moral principles are still applicable in court — check the Declaration of Independence for the principles that underlie the latersigned U.S. Constitution. One should not be interpreting law using one but not the other document, as they are integral to each other. Judges often use neither. Those aren’t just words. Slicing the name of God out of political, social, and legal references undermines the body of fabric that is our society. How many holes cut in the cloth does it take before the fabric is altogether destroyed? God’s name is referenced in every important founding document and set into hard stone in every government building in this country’s capitol. For every religion and every President has recognized a higher power. Yes, even the so-called Muslim one. I have friends who are agnostic — it doesn’t matter. Our American principles are like the uniform measure of weights and measures. They are the basic principles of mankind we measure later laws against. Like using cups or meters or dollars — a higher power — God — is our basic human standard — regardless of whether or not you go to church or synagogue or mosque or the amusement park. God is still the American human-value standard, even if you don’t believe in God. Two unique Christian concepts underpin the fundamental notions of American justice Human beings are made in God’s image. Each individual is a moral agent for his own life.

These two ideas make up the basis for the American concept of individual freedom.106 These two fundamental ideas cumulated in the idea of equality of all men and all nations. No man is greater than another. No nation is greater than another. When national leaders forget this, it doesn’t mean the human standard is gone from law or government — it just means it is time for new leaders.

106 This piece of the philosophical puzzle was stimulated by an insightful article by Dinesh D’Souza, “Created Equal: How Christianity Shaped the West”, Imprimis, Volume 37, Number 11. November 2008.

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AMERICA IS AN EXPERIMENT IN DEMOCRACY, IN IMMIGRATION, AND IN INDIVIDUAL FREEDOM.

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The social experiment of America was founded on the fundamental belief that we are all created equal and free. Immigrants for most of our 400 years arrived with a desire to assimilate into this freedom culture. That is our moral foundation. We are endowed by our Creator with inalienable rights. Jefferson’s words articulated a new concept in history — and it placed the highest value on individual human life. These principles come with a flip side — like a coin. You get one, so you get the other also. Keep reading. Individual life was not especially valuable throughout history. A brief jog back to early world history turns up Romulus and Remus — two babies left to die in the wild. Abandonment of babies, children, widows, women, sick, aged — common practices around the world for centuries that were not considered morally wrong. Civilized countries entertained themselves watching human beings fight to the death. The sport wasn’t considered wrong because individual life had no special value. Exploiting and imprisoning other human beings as slaves and workers was not a crime. These were thought to be ‘moral acts’ because individual people had no inherent personal value or rights. The flip side of recognizing individual human rights for all is in maintaining them — upholding the rights along with the Christian foundation the rights rest upon. You can’t pick one and not the other. It’s like a coin — you get both sides — rights of people to be free, and the moral responsibilities to uphold individual human value and dignity in others. In a system where “legal theater” allows “spin to replace evidence” and lawsuits “turn into massive moneymakers”107 for lawyers, the institutional moral compass of its leaders more than ever needs to be true north to the American traditions of equality and justice.

A Note on Muslim Sharia law The influx of Muslim immigrants who want not to assimilate into Western culture but to establish a Shia culture in the West brings up new conflict with the Hebrew-Christian roots of Western law. The jihad immigration phenomenon is occurring in Great Britain, France and other Western-culture countries. There has been a flood of religious Muslims seeking asylum not in any other Muslim country, (Saudi Arabia, for example) but in the West. Whether violent or non-violent Muslim believers, the immigration surge affects public policy on immigration, First Amendment rights, and fuels national fears. Some Muslims have funded a separate movement to establish a parallel body of Sharia law that has no parallel in the Protestant, Catholic, Jewish, Mormon, Buddhist or other earlier religious waves of immigration — Earlier immigrants who eventually assimilated into a common-value American culture. As a mediator who often looks for middle ground and can find none in this circumstance, I think it is a grave and fundamental mistake to accede to demands to incorporate Sharia law into any body of the American court system, including family law domestic violence mediation. There is a well-funded movement for “inclusion” of this diametrically opposed religion into American culture. Some of the Muslim immigration movement in England and in America includes Muslim resettlement under a non-violent religious supremacy movement called ‘civilizational jihad” and immigration “hijra.” Some are UN & federal government resettlement initiates, (unfunded mandates) dropped without notice onto states.* Those arguments muddle Muslim religion with culture, to misuse religious tolerance exceptions (at law.) Those are a misguided political effort to extend to constitutional protection to cover barbarian cultural practices. A Muslim religious-law concept that a husband, father, son, or other male — is in control of a woman, (her body, dress, freedom, and life) — is outside American law principles of equality. Men looking to resettle (colonize) and instill their alternative cultural values into American law (which include a right to punish or kill for alleged Sharia law infractions, including sexuality, adultery, not wearing proper abayas and hijab

107 Richard Zitrin and Carol M. Langford, The Moral Compass of the American Lawyer, Truth, Justice, Power, and Greed, (1999) Ballantine Books.

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garb) are pressing a movement to ‘include’ an enormous body of religious law inconsistent with bedrock Western principles of individual freedom for all regardless of race, gender, religion or marital status.** The Muslim movement to integrate or replace U.S. law with a foreign religious law in American courts, (under so-called religious tolerance arguments) is predicated on incorporating a dissident geopolitical/religious practice, which crosses our national values legal line (starting with the Declaration of Independence.) Their religious-freedom logic is manipulative and circular (I call it snake-eating-its-tail reasoning) and is not bonafide when deconstructed. Some states have had bills introduced that ban courts from accommodating or not accommodating Sharia law. A well-financed Middle-Eastern/U.S. Muslim lobby is attacking state-by-state, all bills that limit Sharia law, Islamic prayers rituals in public school, (that’s a five times a day ritual,) and so-called equal use of the Quran for government ceremonial occasions. The movement seeks to incorporate a dissident code of law. My point is not to ban Muslims from practicing their religion in America, of course, but that U.S. Courts are based on the legal precedents of Judeo-Christian Western Civilization, and should remain centered on those integral pillars because those values underlie and uphold our American beliefs. There is one fundamental principle of law in America — applied by judges — to everyone. So no one can kill or beat their wife in America, or kill so-called enemies — just because they could do that legally in Iraq, or Saudi Arabia, or Iran, or Jordan, Afghanistan, Syria, Pakistan (or Somalia and Sudan in Africa.) This is Wahabbi ideology, about social behaviors that Westerners find morally reprehensible. Author’s Note: most American Muslims do not believe or practice extremist Sharia law. Those that want to have a religious right to kill or batter women or attack ‘religious enemies’ — should plan to relocate or colonize within the Middle East or Africa, where that culture is still legal. It is way behind international norms. In America, under Western-religious-based criminal law, it is a crime — even for converts or resettled refugees claiming First Amendment ‘religious tolerance’ as a defense. I worked several years for a Muslim PhD cultural research project conducted largely at the Islamic Center of New Mexico, and from hundreds of hours of recorded group conversations, I believe most practicing Muslims in this state both understand the principles of adapting and integrating (to some extent) into their adopted American culture, and they believe in American principles of law — which they would like to trust and rely upon. My work was not long after 911, and the Muslim community appeared fearful of State retaliation against them without due process. Cultural habits change over generations and time, and it appeared to me that not only was there no ‘cultural war’ — but that most Muslim immigrants really do appreciate their immigration opportunity to be in America. They were not looking for mass conversions of Christian Americans over to Muslim religion. The PhD dialogue project included a bouquet of people from different Middle Eastern countries of origin — I thought there was great disparity in communication styles and ideas based on the speaker’s country of origin (including America), but over two year project, none expressed or demonstrated any hostility to U.S. law. This movement to Sharia law appears to be a small minority of well funded, highly focused men, bent on a state-by-state case and lobbying campaign — much like the bar unification political project a few decades before. *For more information about UN/federal relocation programs for states, see Ann Corcoran, Refugee Resettlement and the Hijra to America (2015); also Refugee Resettlement Watch blog. **The campaign also attempts to create or apply state or federal religious exemptions as defenses for criminal prosecution of this violent behavior.

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The Individual Liberty Movement began as a trickle in the early 1800s108 in France, and was advanced through the Christian Abolitionist campaign and American independence and war movements. The Individual Liberty Movement made a specific distinction between individual rights and group liberty. ‘Group liberty’ was recognized in Ancient Greece, where citizens had rights to cast a vote in government matters, but the same people had no personal rights or individual identity. During the Enlightenment, French philosophers advocated for the human spirit and the recognition of individual human rights and opportunities for men to develop their own lives, families, and faculties. The flip side of this freedom concept was that men must answer to a higher (divine) power. The Christian Abolitionist movement in the pre-revolutionary war period finally clearly defined the social concept that all individual human life is equal and sacred. This became the standard of the fundamental basic social concept enshrined in the Constitution and a unique American value. This is the reason judges are expected to demonstrate the moral values we hold as a nation.

To stand as judge against any mistreatment of individual human life or acts dishonoring human dignity. It connotes a higher power which all men, including judges, are accountable. So there is something greater than man — that bestows equality. Something greater than any human being. And it bestows dignity and freedom on everyone as a fundamental right. When the concept was memorialized into the Declaration, this higher power was named God. A greater being than man held all men to be equal. Under God. It’s not a concept to be afraid of in law or in government — it merely confines human egos. The Group Liberty Movement. The modern movement in law is to try to systematically deny this moral foundation — under a 1800s group liberty thinking — that ‘group good’ is more important than individual. Group replaces God. This unspoken ‘policy’ value is the rationalization behind the ill-thought-out law-policy of trying to weed the name God out of our buildings, currency, documents, law and society (in short, to eliminate God from American culture.) The groupliberty movement is a political position that contravenes the more fundamental ‘individual accountability to a higher power’ thinking. The latter is part of the historic American culture that respects the individual. The unfocused purging of God and any religious connotations in law, leads to wussy, non-definitive judicial rulings, and a lack of moral imperatives. It is an institutional weakness that leads to making case decisions, not based on fundamental and guiding legal principles — but on moral relativism. The result has lead to a theoretical emptiness in court decisions. Judges may not be aware of the impact overall, but increasingly, they base case decisions on personal feelings, gut reactions, unnoticed prejudices, or popular opinion, rather than solid legal precedent and fundamental Constitutional principles. Constitutional principles and precedent have always been considered true north on the American moral compass. And just like the other indispensible pocket accessory of Americans? The metal sleeve that keeps the pocket compass from scratches and shattering? Faith in that The First Principle that all people are equal — in God’s eyes.

Reason 3. Non-strict Constitutional interpretations At the same time, the popular politics of judicial appointees has led to a conscious movement away from following strict constitutional interpretations of law. The rationale that the country has changed so much since the Constitution was drafted, is that it’s okay to guess how those early-American guys would have treated modern inventions back in 1787. If only they knew then, what we know now. This is a popular political football — to be kicked back and forth by two teams, in the hopes of scoring a goal and beating the other team. But the Constitution is a baseline concept and value, not a game. Just as people in law need to know where they stand on fundamental value issues, (like abortion and the death penalty) this is a personal moral value issue that intelligent people will think through.

108 See the writings of early French liberal Benjamin Constant, who in the early 1800s distinguished the difference between “the liberty of the ancients compared with that of the moderns.” One article about Benjamin Constant is by Professor Richard M. Ebeling, ‘Individual Liberty and Civil Society,’ February 1993, online at the Future of Freedom Foundation.

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Death Penalty Decision My criminal law professor routinely advised all students to figure out individually, before graduation, how we each stood on the death penalty. He said one day we would need to know in a split second what we believed. He said, take time now to research and decide now, because there will be no time when the need to know hits you. I did that — a lot of reading and research, and eventually I changed a thirty-year old belief. When the time came, I was ready. Years later, I saw a play based on Stanley Cohen’s book, The Wrong Man109 about the mountain of DNA scientific research that proved multiple false convictions of innocent men. That science was a different reason than the one I used, but it was good to get confirmation of a change in a basic moral belief. For judges (who earn their living deciding the lives of others) this law-professor’s advice equally applies to knowing what boundaries limit a judge’s decision-making power. Strict or non-strict? Each judge needs to know for himself what Constitutional interpretation theory he believes in and why. In order to test those beliefs over time and thoughtful reasoning and to avoid floating on waves of popular, but changing opinion. Those who believe in non-strict interpretation have a heavier task for themselves of deciding what new boundaries, if any, will control their case decisions. Uncontrolled, personal decision-making without a compass, leads to mistakes, misuse of power and injustice. Without a universal moral compass, morality becomes a private, individual decision of each judge, in each case. At a time when this new court system seems unwilling or unable to oversee judges, it becomes even more imperative for individual judges to navigate themselves through choppy waters. New Mexico people are fond of asking ‘red or green?’ Judges need to ask ‘strict or not?’ and take conscious stock of what third-dimension principles guide their decisions.

Diversity Massive immigration of new cultures, languages and social values has flooded our country. Outside ideas and an enormous body of new diverse social movements and cultural values are a heavy weight for conscientious judges. The body of new data for consideration, understandably causes social and judicial confusion. Everyone, it seems, has a conflicting demand for a new ‘right.’ Judges struggle to incorporate a flood of seemingly ‘relevant’ but conflicting demands for an expansion of a ‘right’ into their legal outcome. For example, think about the number of changes to parenting questions that have arisen because of the increase in unmarried parents, or with people using surrogates, or artificial baby-making, or other socially un-tethered forms of baby-making. Radical changes in technology and science have led to an unprecedented array of new social problems that strain judges’ resources and capabilities. We all laughed when a judge in 2008 didn’t understand how to use a computer and asked for an in-court demonstration of an e-mail. And we laughed louder at a U.S. President who was unaware of how grocery-store scanners worked. It helps to remember that a lot of the guys on the bench came into office the decade around 1968 to 1972 — so they’re old, and may have little or no experience with the massive technology leaps that followed. But, God help us, they’re in charge. And my point is, they’re improvising. The degree of social experimentation and creative judging in courts has contributed to a crisis in uniformity. Case outcomes are not simply different in every court; often they lack direction and fundamental constitutional anchors.

Growth of unchecked judicial discretion Judicial discretion means a judge may, in some circumstances, use their own personal opinions to decide all or part of a case. Discretion is the equivalent of weasel-room in decision-making. But like any other room, there are limits and boundaries. The limits are established by law. Judges frequently forget legal boundaries to their authority. Some have superiority complexes. Others like to be ‘creative problem solvers.’ Some simply don’t have the discipline or mental framework or background for structured thinking. Some act out of anger and ignorance. And the greatest problem is judge-made law — which shows up throughout. When judges write rules and ‘law’ they frequently feel that it shouldn’t

109 Carroll & Graf, (Avalon) Publishers, 2003.

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apply to them. Laws are for others. Outsiders. Whatever the combination of reasons, judges make rulings that go outside the boundaries of their authority under law. That is called abuse of discretion.

“Willful and egotistical judges”110 We are experiencing a massively unstable legal environment, where it is easier than ever for judges to abuse their power by abuse of judicial discretion. How easy it is “to make small twists and turns of reasoning and language and to affect a case outcome based on sophistry rather than principles of law.”111 When law is not based on any universal principles and moral standards, then law becomes based only on tradition.112 Our courtrooms reflect this exaggerated empty formalism. As keepers of the trappings of English and Roman courts, modern judges rely on staging, ceremony, pomp, legal language and protocols — all the trappings and appearance of justice — but without the substance.

19 DEFECTIVE BUILDING BLOCKS

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Individual cases are assembled into layers, one piece at a time, the way a child builds a tower from wooden blocks. Attorneys, witnesses, parties and the judge all put blocks in place.

SuperBlocks Two special types of blocks are reserved only for the judge to play. They are in every case, even if they are never named. I call them SuperBlocks. SuperBlocks are judge rulings that get set in cement, so they can’t be moved or switched out later in the case. They provide permanence and stability, and therefore are assumed to be both reliable and durable. If poor quality blocks get used or are placed on an inferior foundation, it jeopardizes the integrity of the entire case.

In order to deconstruct what occurs in court, it is helpful to learn some basics. Learning to recognize SuperBlocks is important to understanding what happened when there is a bad or unexpected outcome. [Note: Superblocks vary in each case, so I can only give you clues how to find yours.] They are critical for understanding what goes wrong in court. In court, each side enters facts into the official record. They can use testimony, witnesses, documents or experts to get facts into the trial record. If a fact is disputed, both sides work to add evidence in order to win their version of the fact. The quality and quantity of all the evidence is weighed by the judge. Sometimes, a judge may to use his background, personal experience and other intangible factors to decide. This is subjective. The judge decides what is ‘The Truth.’ Sometimes, judges can use personal discretion, but not all the time. The public, if they knew this was going on, would expect all judges to weigh all the evidence fairly and without bias. Just like a jury would, if a jury were deciding the case. Hundreds of facts can be put into a case. But only a few facts will become SuperBlocks. When a judge finds a fact to be true, it is labeled a ‘finding of fact’ and for the rest of the case, everyone must accept the judge’s decision about this.

110 See Judge Robert H. Bork, Tradition and Morality in Constitutional Law, American Enterprise Institute for Public Policy Research (1985). 111 Id. 112 See an excellent discussion by Judge Bork, id.

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The Judge’s two kinds of SuperBlocks are called Findings of Fact (known as “FOF”) • Rulings of Law (known as “ROL”) Together they are known as FOF & ROL. [Say “f-oh-f and r-oh-l”.]

Once the judge creates a FOF and puts it into the block tower, he often matches it up with another block called a Rule of Law (ROL). This block represents the application of the established written law [rule of law] that relates to the legal requirements in this case. It includes using ‘precedent’ (meaning this judge should decide facts and law according to how earlier cases were decided) — to avoid disparity and different outcomes in law. The process is an objective one, meaning without distortion or bias. Sometimes, a judge formally does this process at the end of the case, using a list the attorneys prepare (called ‘Proposed FOF & ROL’) as suggestions or helpful guidelines for the judge before (or after) he makes a final decision. They hand in this proposed document after arguments are over and before the judge issues a final ruling in writing. The proposed FOF & ROL helps organize the facts and legal elements in a formal way. Matching a ‘truth block’ with a corresponding ‘law block’ results in a new personalized law of the case. A custom-tailored, mini-law just for those parties. It is enforceable against all the people in that case. Just as a judge chooses which fact to use, he also selects which parts of the law to apply to this mini-law. Manipulation of this process, through prejudice or special interest, provides the greatest harm to outcome and truth. Cases may have a few or lot of FOF & ROLs. It depends on what elements are needed at law to prove the case. Basic legal elements for each type of case are found in statutes, written rules, and written case law, so a contract case has different legal elements than a criminal assault case, for example.

The Law of the Case Announcing what will be ‘The Truth’ in a case is the task most vulnerable to manipulation.113 If a mis-stated fact is allowed to stand in the official court record without timely oral and written challenge (and the judge making a correction) then an erroneous finding can become ‘the law of the case.’ It cannot be challenged later, even if it leads to egregious and unfair results. It is important to make immediate oral correction on the official court record, even if you cannot get the mistake corrected. Speak your objection clearly into the record to preserve the issue for later appeal. What if a judge is just mistaken and makes a finding that is patently untrue? Can you correct it? Maybe. Often not. If there is no conflicting information in the trial record, then a clear error of fact can be the basis for an appeal. But practically speaking, in a corrupted case, even with an appeal, there won’t be any different outcome after appeal and new hearing.

THIS IS TRICKY BUT IMPORTANT STUFF, SO HERE ARE TEN EXAMPLES Example one: The trial judge made up a key fact At the trial of Tommy D.114 all the professional players knew Tommy was deaf although there was no testimony or evidentiary record of this fact. His public defender, the prosecutor and the judge also knew Tommy could read lips (but only if the person was standing directly in front of him.) When Tommy’s defense attorney, without telling his client, put on no defense and stated to the judge and jury that his client was guilty, Tommy couldn’t see his attorney’s lips. He didn’t know why his trial ended or why he was abruptly hustled off to prison. His attorney quickly withdrew, never telling his client what he said in court. Years later, while in prison, Tommy got a trial transcript. With the help of a prison gadfly, he filed for a new hearing based on ineffective assistance of counsel and his impaired hearing condition.

113 This often represents the difference between the judge using a subjective process, rather than an objective one. 114 Case of Tomas D. v. Belknap County Superior Court, New Hampshire Supreme Court Docket No. 97-547.

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This post-trial hearing was before the same judge, who ruled to uphold Tommy’s conviction.

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The judge made a finding that Tommy became deaf after he was in prison. There was no testimony or evidence in the official trial record about the origin and onset of Tommy’s condition. The judge made up this ‘fact.’ The judge was in error. Nevertheless, it became the basis of the FOF & ROL denying a Tommy a new trial. Sometimes only one side puts on testimony or evidence, so there will be only one version for the judge to consider. A judge is not permitted to guess what would have been presented if the other side had showed up or had offered their side of the fact. Sometimes, judges do this anyway — they make a ruling based on evidence or testimony not offered or not in evidence. Sometimes, evidence was improperly offered into the record and stricken — still the judge uses those non-legal facts, and rules they are true, although they are a nullity at law. Sometimes judges get information from outside sources, which is also unethical and illegal. (called ex parte) Sometimes, judges say things that become so-called ‘facts’ from their own personal knowledge, which makes the judge both a judge and a witness. As an injured defendant, you may never know where the judge’s version of ‘fact’ came from. Did the judge make a wild-assed guess? Or is he using ex parte information leaked to him in a hallway? Did he hear the so-called ‘fact’ in a New Hampshire locker room after ice hockey practice? Or on the racquetball court at the Honolulu Club? You may never know. But sometimes, the source comes to you later, from chance encounters and quiet tips. Then, maybe, you get to start again. In the meantime (if you lost and there’s a lot at stake) sort out the FOFs & ROLs and see if they came out evidence in the court record.

Example two: Judge uses improper information An attorney’s client failed to show up for a hearing, and her attorney stood and made an offer of proof about what his client would have said if she had been present. I objected to his offer as hearsay, and requested the offer of proof be struck from the record. Attorneys don’t give testimony. I prevailed, and the statement was ordered struck. However when the judge issued his order several days later, the only FOF he used to make his ROL was the attorney’s offer of proof. After much effort to correct the mistake, the judge refused reconsider or to strike the improper evidence from the record, and my client lost. [Tip: If you see a false ‘truth’ in a case, it is a strong indicator that the case is decided on an improper basis — some reason or favor other than the law and the facts presented.]

Example Three: Child abuse consent forms This compilation of numerous complaints of parents represents the dilemma of some parents whose children were snatched by the state and put into foster care. Based on an anonymous tip, your child is removed from school without your knowledge. The child is put in foster care. A state Child Abuse Services department worker says you may have your child back if you just sign a state consent form. The form contains boilerplate language. If you sign, you essentially consent to your child having been taken. In lawyer language, it is an admission of guilt and releases the department from responsibility for any error in taking. You know you are not guilty or responsible. There was no abuse.

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The report was mistaken or vindictive. Your child may suffer from an obscure medical condition that only looked like abuse. You feel pressure to sign because it seems the only way to get your child back quickly, if at all. You are under duress because you are told you can have your children back immediately if you sign. Many anxious parents have signed a Consent Form and later found that it was entered into the Court case. Judges accept them automatically without question. So their consent becomes a FOF. The false truth has become the law of the case — a ROL that the taking was a legal act. Court findings based on child protection agency standardized consent forms can be clay blocks in a case foundation because they required innocent parents to admit to abuse or neglect before the parent is allowed to re-gain custody. Many have signed just because they want their child back quickly and are intimidated by a state worker. Rule of Law has several meanings, covered in this and later chapters. Generally the context means judges must ruling under well-established, clearly defined written established law, not by arbitrary rulings outside the law. Sometimes it means under a higher moral rule of law. Rule of law requires a clearly defined law, so someone prosecuted for an act that is not illegal at the time it was done, cannot be convicted under the rule of law. In the U.S., the making an act illegal retroactively is called ex post facto laws and they are illegal.

Example Four: Ignoring facts in evidence One judge terminated another judge’s spousal support payments because the presiding judge found that Anne P., a dependent wife of 25 years, failed to establish she had any need for support (ROL). Anne P. was another ex-wife of a judge member (although her status’d husband was the son of a Governor.) State statutes list two legal elements necessary for an order of spousal support: one party’s need for support and the other party’s ability to pay. There has to be evidence in the record (FOF) on each of the two elements to support an order (ROL). For two days Anne focused her testimony and supporting evidence on how a long-standing medical disability left her unable to work, how she could not afford even a meager rent and how she was forced to move in with her elderly father. She testified about her on-going unmet basic needs, including insurance and medicine. She introduced medical expert reports and testimony. The judge found she made no showing of need (FOF). Clearly inaccurate, the finding means the judge simply ignored all of her two days of evidence and her expert at trial.115 The finding was a clay building block. The ruling, fundamentally dishonest, casts doubt on the integrity of the entire process and order. Judicial Discretion — The power of a judge to decide an issue by using his personal judgment in lieu of facts and law is called the use of discretion. Not every decision requires discretion, but when judges substitute their own values, facts and personal judgment to disregard evidence and testimony, they are using discretion. Discretion is not always appropriate. Strict rules and fundamental elements of law116 may govern the result, and within these areas, a judge is not allowed to substitute or assert judicial discretion. They fall outside the judge’s power to decide.117 But, what is there to stop them?

115 It is common for a biased judge to simply ignore all the evidence of one party and rule only on the Insider’s evidence, as though contrary evidence had not been presented. On appeal, most judges ignore this erroneous weighing procedure, claiming it is a ‘discretionary act’ that will not be reviewed for correctness or flawed reasoning. 116 Avoiding or deviating from the rule of law is a frequent criticism made of modern and activist judges. 117 See J. E. Smithburn, Judicial Discretion, (1980) for extended references on judicial discretion.

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Practice Tip: If you hope to win in this situation, it requires diligently making corrections to the official court record as you go along. Each bad ruling becomes a building block supporting later rulings and orders. Even if the presiding judge refuses to correct his errors, it is important to challenge bad building blocks. This is done by documenting and filing essential corrections promptly in the court record. Admissible evidence under all court evidentiary rules may clearly demonstrate one fact is true, but other considerations in the judge’s mind affect the case. Cronyism, for example. It is in those hard times that an unethical judge will make an inapposite finding of fact in order to support, protect or justify a particular favorable outcome for one side. The trick is when a judge manipulates judicial authority to establish what is truth. When the trick affects critical elements of a case, it suggests the case is predisposed. Somebody is getting preferential treatment. State agency workers, certain lawyers and friends may give a judge a propensity to favor one side. Deciding a case outcome first, and then working the reasoning backwards to support a biased final decision, will often leave holes and errors in logic and reasoning. Searching through all the facts in a case and selecting which ones get the court’s Good-Housekeeping seal of approval — this is a process that we, as citizens, trust will be both fair and impartial. “I have had my fill of judicial opinions that falsify the facts of the case.”118 Lawyers and judges have highly developed abilities to rationalize. Judges are required to make rulings based on the evidence, but the legal system allows judges great latitude in justifying their choices. Judges also paraphrase extensive testimony and evidence into simple summaries. For these reasons, true false-findings-of-fact are rare. The written correction to a judge’s inaccurate findings has do be done promptly with supporting accurate documentation, if that is available. If a judge writes a misstatement, error, or untruth as an FOF, then file a timely objection to preserve the objection and insert an accurate statement of fact into the court record. Direct quotes, affidavits and transcripts attached to the corrective motion can help obtain a re-hearing. A rehearing as Tommy D. discovered, is probably in front of the same judge. Incidentally, Tommy D. did get another trial with another judge (after three appeals back to the same judge) and he was released. It took years. Judges make errors. Lawyers make errors. All cases have error. Error is a part of the human process. But which errors are important enough to challenge or correct? No one has enough money or energy to correct every error. Under the rules of court, whether the judge makes a false or an erroneous finding, the parties have to live with that unless someone objects almost immediately and then gets the finding overturned. Lawyers play chess in the courtroom, setting up one move at a time building to checkmate. Therefore, it is crucial to make a contemporaneous record of the False FOFs in court orders and rulings, even to apparently insubstantial ones. On the other hand, (attorneys always doing this — they argue one side and then switch over to the other argument — forgive me: it is an inherent trait in lawyers) — no trial is without error, and correcting small details in court orders and pointing out corrections to judicial misstatements and mistakes may prove tedious, expensive, and unreasonable to undertake. It is extremely difficult at the onset of a case to know which judicial mistakes or misstatements in the record may come back later to haunt you in future proceedings and orders.

118 Distinguished ethics Professor Munroe Friedman of Hofstra University Law School.

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Practice Tip: Be wary of the Buddha judge. A really sneaky kind of judge may make no preliminary findings or rulings; she will look like a Buddha on the bench. She will hold back on all rulings for hearing after hearing until the end of the case. This is a judge controlling the case outcome—which may or may not be pre-determined.

This kind of judge is also avoiding challenges and corrections. Her orders,

when they finally are released, tend to be massive, and may contain countless errors in facts and rulings, making it even more difficult to correct.

Example Five: Buddha Divorce Judge In divorce, the psychological impact of not having rulings until after the final trial — where a judge releases an enormous first order containing many errors in fact and rulings — is extremely difficult to correct or attack. It’s like fighting major battles back-toback while wounded (assuming you lost big because of those numerous erroneous findings and rulings.) A judge who stores up her findings and rulings until the end of a long case — may be inexperienced and afraid to make rulings on the spot, or may instead be operating under a secret agenda, which makes it hard to detect (because there is no output along the way.) It might stem from a lack of confidence, (a newly appointed judge with little experience might be avoiding confrontation in the courtroom) or it can be a judge hiding a bias or pre-determined outcome — or example, favoring the senior partner of one of the state’s larges law firms in his divorce so Buddha Judge waits to ambush the wife with her pile of rulings at the end of the case. If they chose, judges can ignore all evidence you present. Their trick is to ignore all the evidence (that doesn’t go the way the judge wants the case to turn out.) In the courtroom, you can’t tell which evidence a judge is mentally disregarding — but when the order finally comes out, every fact mentioned will support the judge’s order.119 All contrary statements and evidence (disingenuously) avoids any mention. Facts, evidence, and testimony — no matter how large the quantity or how strong and reliable the facts were,120 they are simply are avoided in the judge’s decision. (You feel like the judge just forgot to listen? Or somehow missed your case presentation?) Sometimes, your evidence was not opposed or refuted. No contradictory evidence was ever presented at trial. Bias often translates into this pattern. Also lazy judges simply tune out or overlook arguments that don’t support what they pre-determined. At one of my first trials as a new lawyer, Chuck came along as first chair. On the drive to Cheshire County, he worried incessantly about which witness to call first. He claimed our judge was known for making up his mind in the first two minutes, and nothing thereafter would ever change his mind. This judge simply had no ability to keep an open mind beyond two minutes. As that case turned out, the opposing lawyer was recognized and greeted by the judge as the judge entered the courtroom. The two spent several minutes warmly reminiscing over their sons’ former best friend in little league sports. Naively, I wrongly assumed that warm reunion would not affect our case outcome. But for the rest of my litigation career, I watched this particular District Court judge repeat the two-minute rule in every case he presided. If the arguments of one side are consistently ‘heard’ and accepted, while the other side’s arguments are inevitably ‘invisible’ and ‘not heard’ — especially over a long period of time and through many hearings — look for other indicators of the judge is using his court position to bestow judicial favors.

119 I experienced this trick in two of my later attorney-discipline cases. 120 The spousal support case of Ex-Wife member, Ann P.

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Practice Tip: Keep a chart of every win-loss ratio with an eye on the quantity and quality of evidence presented. It is possible to identify latent patterns of bias in seeming “rationalized” decisions, which suggest the judge is systematically denying relief, credibility, and successful result to one side. With latent bias, one party always will lose, regardless of any quality or quantity of presentation or evidence.

Example Six: Excessive niceness One truly sneaky judge, often challenged for bias, learned to adopt a pattern of smiling and speaking in a sotto voice to her victims. She appeared to write in her judge’s black journal — attentively — during the victim’s testimony — and was often overly solicitous. However, when her orders issued, each group of facts was twisted to support her favoritism, and they would ignore all evidence introduced by one side if it contradicted her desired insider outcome. Clay crumbles both ways. The Ol’boy system will make a case fail (if necessary to protect one of its own) by pulling out one of the super blocks in the case foundation. Example seven: How a judge can crumble a case to protect an Insider A man received a $600,000 cash settlement for an accident that left him permanently mentally impaired. His attorney asked to hold his client’s money in trust but the attorney later dissipated it. The injured man sued his attorney, who was defended at trial by an attorney, who was also the National Secretary of the American Bar Association. The ABA Secretary told the judges on appeal that his lawyer-client was unaware the victim suffered from mental incapacity. Since the $600,000 was compensation for mental incapacity harm, a complaint for lying in court was filed against the attorney. The court found that if the appellate judge had wanted a correct answer, he could have read the truth in the lower court file. The court essentially found that a patently false answer in court is not attorney misconduct.121 The ethics case against the ABA Secretary was dismissed. Technique: The peer review panel removed a brick from the foundation of this conduct case, collapsing the case, which then was dismissed. They avoided characterizing the Insider’s untrue statement as a lie. This act was given no name, so “it” (the lie) avoided becoming a finding of fact (for the subsequent conduct case, although “it” was an element in the original case.) Like a sand castle in a rising tide, the case crumbled — once a judge exercised discretion to avoid ruling on an undisputed fact. Studying the [lack of] logic underpinning the [absence of a] finding demonstrates tremendous power of those who get to select findings and rulings. The peer-review committee can say a false answer is not dishonest. Illogical? Certainly. Immoral? Yes. But this true top-tier example demonstrates how cases are built or destroyed on findings that capriciously decide what is truth and what is not.

Practice Tip: Make a work copy of the judge’s orders and highlight those sentences, which are labeled a finding or a ruling. Because those sentences hereafter are the building blocks to your personal law pyramid. Label them FOF & ROL. Henceforth, they are “The Truth” of your case, regardless of whatever external truth exists in the rest of nature.

121 The U.S. Supreme Court recently dealt with the issue of an evasive, untruthful answer by an officer of the court. How even the highest court circumvented the problem is deconstructed in a later chapter.

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Example Eight: Avoiding logic Another judge strained to make findings, which erroneously supported a termination of spousal support for a person suffering from many symptoms of advanced multiple sclerosis.122 The judge made a false finding of fact that the woman’s condition had improved; then he made a ruling of law that the woman had no need for spousal support. He found she could thereafter be self-supporting.

Practice Tip: Watch for final orders that ignore prior FOFs or ROLs. At best, they indicate the judge is inconsistent and the final order, flawed. Other times, the real truth is inconvenient, embarrassing, or leads to an unwanted outcome. FOF: her alleged improvement ROL: no need for support Order: permanent termination of spousal support Thus arrived at by ignoring prior orders, evidence, expert testimony, common sense and compassion. Example Nine: An idiotic ruling to help another judge avoid indefinite child support payments. Another ruling prematurely terminated my hard-won order for permanent child support for the daughter of a judge — a child born with an incurable birth defect who had an IQ of 62. The adult child’s part-time employment at Wal-Mart made her “self-sufficient” once she turned 18, ruled the judge, as he overlooked the permanency of her condition, her inability to live independently, and her present and future unmet needs. He voided a permanent support order less than two years after it was obtained. If it weren’t for the support and kindness of the Mormon Church and Walmart, this long-time dependent family of a well-paid judge would have been living on the street.

Example Ten: Flip flop findings and rulings In a case over spousal support, a judge is supposed to weigh the legal elements of one party’s need for support and the other party’s ability to pay. In an ex-wife of judge case, however, these legal elements were flipped (against each other) to deny ordering support. 1. The first judge made a finding that the wife needed support. But no support was ordered because he found the husband’s $84,000 declared annual earnings were inadequate to show any ability to pay. 2. Months later the wife diligently demonstrated (with newly discovered evidence) the former judge/husband actually earned 300% more than was previously declared in court, demonstrating an ability to pay. 3. The judge then made a new finding that the wife demonstrated no need for support. 4. The facts were presented, but the judge ignored the fact testimony of an expert and issued a conclusory ‘finding’ (without evidence or documentation in support of her finding.)

122 Commonly known as a progressive, incurable but not life-threatening disease affecting the skeletal/muscular system

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5. The same judge worked hard to fashion a nonsensical reason to exclude most of the

1

expert CPA testimony — that would have demonstrated even larger hidden earnings by the husband.123 Flip-flop. This kind of ruling is called a “flip-flop” because it avoids the pre-existing findings. If the earlier finding of need had been properly applied by the judge — the new evidence would have required the judge to issue orders of support. Do you see why I call this outcome determinative? No matter how thorough the presentation and evidence, the wife’s facts would not affect what the judge was going to order. This was an Insider favor/outcome fixed from the start.124 We will see several more cases with flip-flop judge rulings. Some are criminal cases. At an early hearing, the judge rules one way; that proves later to be disastrous for the Insider, and the judge must figure out how to evade, reverse, or deny the earlier order and make it ‘sound’ legal.

Conclusion A constitutional revolution has occurred in the Unites States since WWII in the Third Branch of Government. Educated, ambitious men usurped regulatory control of the law profession in all 50 states. State-by-state the movement pressed, using dubious and questionable judge power to gain absolute control over every lawyer in the country. Each state became unified under a so-called ‘inherent’ power of judges to administer courts. The quid pro quo was exclusive control over attorneys and fees, untied to any relative market place value or return. This insured financial superiority of the profession, at the expense of justice for all. The unanticipated consequences of this political power grab continue to evolve unseen, causing collateral damage to the Constitution and lives of ordinary citizens in court. Using a mantle of secrecy, courts nationwide have evolved into judges clubs, where insider dealing and legal abuse in court can be practiced with impunity. The shift in regulatory control has created a new financially powerful organization that throttles First Amendment rights for lawyers about legal abuses perpetrated in the name of law. There is no safety check on judges, no effective oversight, no transparency for reporting within the system. Court users also are helpless to check the run-away legal cost associated with court process or the streams of revenue flowing to lawyers. Poor results that cost too much…what else is new? Arrogance. Judges systematically insert their own style of raw (political) power into the national legal system — unchecked by the natural balance that is supposed to come from (1) strong Executive and legislative branch oversight, (2) competition, (3) morality and personal ethics. Not only has the arrogance of high court leaders created a tolerance of abusive lower court processes, but court heads increasingly assume the role and function of lawmakers — replacing elected legislators by fiat. External oversight by the other two branches of government is assumed to be the counterweight for judicial overreaching, but without knowledgeable critical information about secret judge practices, the counter-weight has become ineffective and meaningless. As the executive branch increases the thumbscrews on national whistleblower protection, so the incentives to remain silent about government abuse proliferate. Courts have grown overwhelmingly self-interested. Courts are stealing the wealth of the American people. Like Wall Street trading, government spying, and global warring, the misuse of public power125 evades accountability and oversight. It occurs and is maintained below the consciousness and understanding of the American public. Submerged and without oxygen, individual case-bodies decay for decades and rot unnoticed.

123 The financial tricks chapter re-uses Ex-Wife of Judge examples to help explain different parts of compound judge tricks. There is a progression of abuse stemming from the same judge acts, but as the case progresses, an insider judge will have to keep protecting earlier rulings in the face of subsequent challenges. So studying the evolution, (over the life of a case) demonstrates not only different patterns, but the progression of judge-acts required to keep the early case outcome intact (in those cases with pre-determined insider outcomes.) 124 At the time I first said my own case was fixed, I took a lot of heat for using the word “fixed” and was challenged by bar defenders to prove the judge was paid money. Of course she wasn’t paid money. That isn’t what fixed means. The judge was a water carrier, and judged according to input from a boss who assigned her to replace him. Fixed is not just about bribes. That narrow definition evades addressing the court-problem of all but Chicagogangster-style examples of judicial corruption. 125 No constitution permits judges to disregard enacted statutes that judges later deem to be unconstitutional, nor authorizes judges to internally regulate themselves to avoid external oversight.

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Except they are not unnoticed. Gauging by popular media, there is a public awareness of crooked and unfair lawyer practices. But the genesis of court abuse flows from the judges, not lawyers. Refocus public scrutiny by looking more closely at the acts of judges. Law consumers can learn to identify the sophistry and uncover specific patterns of questionable behavior and abuse. Identification is the first step toward motivating judges to reform. There are far more consumers than judges in court. American citizens are a powerful and idealistic force when they focus on something. The remainder of the book focuses on various acts of illegitimate manipulation by judges in and out of court — some so small they seem barely worth noticing. When combined together, they form a mystique that shrouds corrupted cases, so trying to identify what went wrong (especially by studying a case outcome) can be an overwhelming and unproductive task. We can learn how to deconstruct what happened from a different and alternative perspective than that held by those inside the castle. Same judge, same acts and rulings, but viewed from a logical outside point of view — without the inside spin. Individual can do it already. These simple homework readings suggest a framework for deconstruction of the mystique swirling around the variables in bad judging. Isn’t it time to start processing with a neuro-microscope instead of an antique spyglass? There is another version to what judges get away with in court — and ramifications that extend far beyond their clunky mote around the castle point of view.126

Systemic corruption of the legal system flows from the top-down. This unchecked assumption of imperial power is what our founding fathers feared most.

And it has come to pass.

126 The next stage is digitizing large bodies of individual case and public law (including court audio and exhibits) to extract key concepts and law data on a large scale. It can be converted for digital analysis using algorithms. Then their mystique becomes merely a progression of coded numbers tracked into patterns and projections for each judge. For each case and collectively — across every court and boundary. The technology is here, and citizens can learn how to provide what is currently missing — namely access to court and judge data.

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CHAPTER TWO — BAD BEHAVIOR AND ETHICS TRICKS INTRODUCTION: A RIGHT TO EXCELLENCE §20

DRUNK, STONED, INCAPACITATED, ILL-TEMPERED, AND BURNED OUT

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SLEEPY, CONFUSED, AND AGED

§22

SEX WITH A JUDGE

§23

CRIMINAL ACTS OF JUDGES

§24

JUDGES WHO LIE

§25

BAD WORDS

§26

BAD ACTS

§27

CONTEMPT OF COURT — SOME PRELIMINARY IDEAS

§28

EXPLOITING THE OFFICE

§29

HOLODECK LAW

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TABLE OF CONTENTS

CHAPTER TWO: TABLE OF CONTENTS

Chapter Two — Bad Behavior and Ethics Tricks

CHAPTER

INTRODUCTION: A RIGHT TO EXCELLENCE This chapter focuses on bad judge behaviors with examples about how the larger justice system operates under a flawed internal system. At the beginning of any project, it is important to stand back and identify a realistic goal — here it is a universal (national) goal for judge behavior. 1. It is impossible not to make mistakes because judges are human. So the standard cannot be “perfection.” That would be unrealistic. 2. There currently seems to be no articulated national standard,1 so let’s look at my go-to state example.

2

3. The New Hampshire Constitution (at Appendix A) has a beautiful statement about what all citizens have a right to expect from the judges who try them. “Citizens have a right to be tried by judges as impartial as the lot of humanity will admit.” In other words excellence, not perfection.

EXCELLENCE BY DEFINITION IMPLIES BRILLIANCE, DISTINCTION, QUALITY, MERIT, SUPERIORITY. So the cases and judge examples contained in this chapter are just a small piece of a broad institutional ‘issue’ — one that covers over and ignores ethics violations, special handling, and rankism in judging across America. No one knows how deep this problem is in America because it is not quantified or recorded or even recognized within the system. A second problem is the present system lacks qualitative aspirations and goals, and it’s ordinary daily output I maintain is poor, erratic, and imperfect. Therefore, it is appropriate to demonstrate how judges lack in excellence.

MY GOAL IS TO COLLECT PUBLIC SUPPORT TO DEMAND QUANTIFIABLE EXCELLENCE IN JUDGING. Currently inside and outside the system, exposure of judicial problems is treated as a breach of loyalty and confidence in the legal system, yet my experiences and review of judge handling in cases presented that indicate a lack of confidence is valid, accurate, and justified. That’s why I wrote these chapters. I believe the current judging system is in a downward spiral because of a flawed organizational model and frozen thinking to protect itself — one that means ordinary Americans cannot look at what is wrong in court. The bias against outside assessments extends also to judicial oversight. Both prevent honest review of how well the legal system is fulfilling its function in society. Without a clear indication of what’s wrong, there is no way to determine and plan for correction and improvement. Saying no correction is needed is unrealistic. Thousands of attorneys and citizens are filing appeals, complaints, and trying to figure out how to fix bad case outcomes using an inherently flawed process. Here’s the news — the system often doesn’t allow fixing its flaws. Terrible injustices occur as a result of corrupted court handling. But the system provides no system-method or process to correct what it pretends does not exist. Saying there is no problem, and “trust us” is no longer acceptable. Nor is cover-up.

1

The 2009 annual report of the Chief Judge Warren Burger reported federal court judges are operating “soundly.” That means “like a log” or “peacefully” or “deeply.” I have no quarrel with his assessment — undoubtedly like a log also indicates “securely.” Securely for the judges is pretty much my point.

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DRUNK, STONED, INCAPACITATED, 20 ILL-TEMPERED, AND BURNED OUT

§

Just because a person is made a judge, doesn’t mean his humanity stops at the courthouse steps

ALCOHOL AND DRUG ABUSE Rarely are judges removed from office despite long-term problems with substance abuse. Textbook cases2 indicate antiseptic allegations are the norm, followed by light discipline, if at all, and overall, an institutionally self-interested handling of any problem of this nature. The focus is always on the judge and the institution — not the fairness in case handling, mistakes or abuses from the bench, or crimes committed through incompetence in office. Like priests and police, judges are assumed to be a cut above the rest of humanity. And if one should slip? Make a mistake? Be unfit for office? Judges are self-policing. Trial attorneys with court experience have stories about standing close to a judge in chambers and smelling boozy breath. Or about judges who preside intoxicated and high. Some who go to court know first-hand the problems stemming from substance-impaired judges. An attorney may not know exactly the problem, but recognizes the fall-out. Substance abusers in all walks of life try to hide their drinking or using, but in court, people in the best positions to know, are the least likely to report a judge. Members of the public rarely suspect this kind of behavior, even if the judge has slurred speech, aberrant behavior, is inattentive, or nods off. Almost no one has nerve enough to ask a judge to remove himself. Attorneys will gossip, and blog the names of alcoholic judges but no one reports. Reporting a judge will result in later retaliation, will affect an attorney’s other case outcomes, and will thwart future court appointments and other favorable treatments. Judges have long memories and can wait years to pay-back some loose-mouthed lawyer, who reported them. So prudent attorneys are dis-inclined to do anything about an impaired judge, even if the decisions affect their client’s well-being and reflect impaired functioning. In New Hampshire, an insider secret at district court was the attorney-technique of jockeying with the scheduling clerk to get a case moved to the morning docket in Merrimack District Court, if the case was unlucky and assigned to the long-time alcoholic judge — a mean man, with a reputation for alcoholic nastiness and cruelty. He became worse as the day wore on. A morning docket could mean the judge might be less abusive and more alert, and might make the difference between incarceration and an innocent finding, or maybe a fine. The irony of district court is it handles cases that involve drug abuse, trafficking, drunken driving, and other issues that the judge himself was dealing with — only judge criminal-problems get handled differently. All courts avoid generating public data, statistics, and publicity about the incidence of alcoholism and addiction by members of the bench, by keeping such situations in-house, when possible. This works best because there is no record or aspersion cast on the court. Courts easily obtain the cooperation of police and prosecutors who handle cases on a regular basis at court dealing with both drugs and alcohol. Often because of frequent court appearances, they have familiar working relationships with both the afflicted and the supervisory judges.

2

There are two classic law textbooks for judicial ethics in America: one is Judicial Conduct and Ethics by Alfini, Lubet, Shaman, and Geyh. The second is (Robert E.) Keeton on Judging in the American Legal System. Both also are published by Matthew Bender/LexisNexis Group in 2010 and 2009 (with various other editions). These identify reported public record cases that make it into (and all the way through) the internal ethics process. They do not report judge crimes, per se.

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Chapter Two — Bad Behavior and Ethics Tricks

CHAPTER

Discipline style #1: The gentleman’s approach

2

The second best way to handle a judge’s addiction is as a gentleman — which means informal discipline in private, again with no public record. Historically, this means a chief judge will have a one-on-one chat with the offender, and perhaps suggest treatment. As long as the matter stays out of the press and avoids a public perception, the judge will stay on the bench hearing cases, regardless of his competence or other flaws. Insider handling is the preferred method. Internal handling may involve a transfer to another county or judicial district to quiet local gossip. If other problems are connected with the judge’s substance abuse and involve third parties, (such as sexual harassment or a motor vehicle accident) there may be a light suspension for treatment, (often with full pay) and then it’s back to the bench with full judicial power for the reformed judge to settle his score against his complainers. This judge may not rise higher in office, but for lifetime appointments and lax re-appointment processes, this is a position the judge can hang on to until retirement, (with insider assistance and blessing) regardless of whether or not the judge improves his daily condition. The important thing is that the judge was given a warning that his transgressions are publicly noticed, and he is expected thereafter to be more discreet and not cause his peers embarrassment.

Discipline style #2: The disease/treatment approach This process permits the legal system overall to handle judge’s behavioral problems as a non-public, internal, administrative “court” matter. Judges may get hand-slaps, but overall, the focus will narrow down to one incident of drinking or drug use, ignoring the longtime pattern of dysfunction. Even when illegal drugs are involved, the lawbreaking factor usually gets ignored. If there are other accompanying illegal behaviors, predatory behavior or sexual violence, those incidents often get muddled together into an “impaired by alcohol defense,” so the bad behavior issue gets ignored or minimized.3 Charges get minimized; potential evidence, lost. Treatment of alcoholism as a ‘social’ problem rather than a legal or criminal issue means the situation may be handled in private, without law enforcement or risk of criminal sanctions. The ‘treatment’ is a voluntary effort, not mandatory treatment and not incarceration. The internal therapeutic approach4 provides a public image that judges are impeccable or, if not, they are ‘in treatment’ for minor infractions caused by a temporary but human lapse. The focus on public disclosure is on damage control. Courts claim these practices are necessary to prevent erosion of the high level of esteem and authority the public has for judges in order to avoid the erosion of judicial power. It doesn’t appear to make much difference whether the misuse of alcohol or drugs happens in or out of court or both. The operative factor is whether or not the problem is public. But this antiseptic handling, light discipline, and gentlemanly courtesy to ‘afflicted’ judges is not comparable to the way the courts handle members of the public who suffer similar afflictions. It is professional courtesy for an insider. Truly effective handling would protect the public from bad judges who continue to sit while habitually drinking.

Discipline style #3: A public approach The worst way for the courts to be forced to deal with a judge’s chemical addiction is in public. When the press becomes involved and keeps public scrutiny on judicial bad acts, increasingly courts handle allegations with more apparent seriousness. Under press scrutiny, discipline of judges, may appear initially to be more in keeping with the charge/ handling that judges dish out to the general public for similar crimes. However, that doesn’t apply to the sentencehandling, imprisonment, or fines and probation (after the publicity fades.) Judges routinely receive insider-leniency. Regular members of the public may receive intense pressure to plead, along with severe jail sentences under the country’s new overly harsh, and prosecutor-controlled, federal and local criminal sentencing guidelines, but study what happens to judges — charges are dropped and minimized, sentences are nominal, and loss (suspension) of judicial pay 3

Judge Aldrich, Aldrich v. N.Y. State Comm’n on Judicial Conduct, 58 N.Y.2d 279, 447 N.E.2d 1276, 460 N.Y.S.2d 915 (1983). Judge Sears decision was unreported, In re Sears, Unreported Order (Minn, July 26, 1982), as was Judge Sandeen conduct of court while under the influence, In re Sandeen, Unreported Order No 48183 (Minn. 1977).

4

In general, the public is not afforded access to this internal therapeutic model — but is charged, prosecuted and sentenced under a severe, harsh, criminal public policy model that — according to Bureau of Justice statistics — has resulted in one out of every 32 Americans spending time in a jail or with a prison record. The statistics may vary slightly according to reporters, for example, 1/10, 1/32, 1/40 all are accurate U.S. citizen stats with variations for time/measurement.)

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is considered a sanction. Even if suspended, often judges still draw pay and benefits. The insider disciplinary system avoids public scrutiny of judge addictions if possible. If a judges’ bad behavior becomes public knowledge, (for example the same judge is arrested repeatedly for driving under the influence) and/or the police don’t release him with a warning, then it is the public scrutiny that seems to provoke the court into handling the offense with less obvious professional courtesy at the charging stages. But professional courtesy will still minimize the charging and plea negotiations, and the punishment and sentencing phases. There are multiple ways for judges to avoid most criminal sentences altogether. And even if criminal charges are initiated, insiders in each branch of government (including the DOJ and Attorney General offices) will intervene to handles these cases with special courtesy. That means charging is nominal in number and classification. The charges end up misdemeanors, rather than felonies. There will be only one criminal charge, not twenty. And it gets settled without court appearance or a criminal record. Sometimes, a judge will resign to avoid any criminal charges — just quit and walk away. Suspension. Sometimes, a judge is suspended for a month or two up to six months — while the judge attends a rehab program or goes to AA. If drunken misconduct is habitual, notorious and involves neglect of duties, AND the media keeps the case in the spotlight, (for example, if there is some criminal act along with the judge’s drunkenness) there can be a longer suspension for six months to two years. With intense unrelenting press, New Hampshire’s Rochester District Court Judge Franklin Jones was suspended without pay for groping the breasts and buttocks of five women at a state-sponsored sexual harassment conference. Judge Jones claimed his intoxication left him unable to remember his actions in sexually harassing the five women. (He filed to get his job back.) According to Doctor/Director Scott Hampton, 30% of all sexual assaults occur when the perpetrator is under the influence of alcohol.5 The State Attorney Peter Heed was forced to step down for similar charges at the same conference. Allegedly the conference had a standing reputation as the New Hampshire version of Tail-Hook.6

Discipline Style #4: Collateral issue approach While a judge may be impaired by alcohol, the disciplinary handling frequently fails to address the underlying nature of a sexual predator. Judges who are predators — sexual or otherwise — often have been allowed to remain in office. The club disciplinary approach minimizes the underlying sexual violence and, as quietly as possible, focuses only on ancillary issues, such as alcohol use, substance abuse, personal stress or depression. What gets avoided by use of a collateral approach are domestic violence, sexual assault and harassment. Those are separate issues. But the diseasetreatment approach mixes together facts and issues, and as a containment strategy, it keeps focus on ‘human’ problems of judges, while minimizing the anti-social or deviant ones. As ‘compassionate’ treatment, this is the special reserve variety. The irony is this same ‘forgiven’ judge remains or will return to the bench where criminal prosecution continues to operate in a different universe for non-insiders.

WARRANTIES NEEDED This internal-discipline system for judges also overlooks entirely the issue of damage to the parties because of an impaired judge’s inept handling of their case. There is virtually no attempt to identify or initiate new trials or new hearings, or to overturn sentencing or convictions, or to correct financial or other judgments of cases affected by judicial incapacity. The public simply has no recourse. Often they have no knowledge. Dozens of cases tried by a woman judge heroine addict were allowed to stand. Minnesota reprimanded and placed a alcoholic judge on probation,7 while New York removed an offensive, alcoholic judge from office.8 These actions are only the tip of the iceberg. Studies on

5

Director of Ending the Violence, Home of the Consexuality Project, Dover, NH, Scott Hampton, PhD, Alcohol acts as a permission slip, Portsmouth Herald, Jan. 23, 2005, quoting Greensberg (1998).

6

See examples of media scrutiny, Shawne K. Wickham, The Union Leader, January 15, 2005.

7

Judge Sears decision was unreported, In re Sears, Unreported Order (Minn, July 26, 1982), as was Judge Sandeen conduct of court while under the influence, In re Sandeen, Unreported Order No 48183 (Minn. 1977).

8

Judge Aldrich, Aldrich v. N.Y. State Comm’n on Judicial Conduct, 58 N.Y.2d 279, 447 N.E.2d 1276, 460 N.Y.S.2d 915 (1983).

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addiction indicate addicts are exceptional liars, and may justify away their impairment — for years, if not forever. No one overseeing judges ever initiates re-opening cases heard by an impaired judge, or providing compensation to injured parties, or providing any kind of warranty or malpractice insurance for bad judging. If pressed, bar reviewers cite the court-created concept of judicial immunity, ignoring the many holes in this imperial cover, as well as the validity of a branch of government bestowing immunity on itself without Constitutional authority. Compensating judge-court-victims is not as far-fetched as it sounds: other types of institutional corruption and abuse of authority by individuals within a government organization have brought about compensation for victims. Bogus drug arrests by Tom Coleman, (an FBI undercover agent who made 46 bogus drug busts in the 1990’s) lead to a blanket pardon,9 followed by a civil rights lawsuit, which resulted in the release of 45 people from prison and a $6 million dollar settlement. Many of the victims served four years. In typical insider fashion, this FBI agent was convicted of only one count of perjury in 2005.

Florida Lawyer Assistance, which helps impaired judges, estimates 15% of the state’s 10,000 members (including judges) will develop a problem with alcohol or drugs during their careers.10

State courts issue an annual report on the judicial conduct committee, including a disciplinary report’ on judges.11 In New Hampshire, it is a summary of number-data, vaguely reported with a lack of names and other specific information. It reflects an abnormally low number of complaints, but that isn’t actually the case. There are several bogus excuses for early dismissal of complaints against judges, and readers should make a point to understand deconstruction techniques to identify when a complaint is tossed out prematurely. Many are found defective in form and never make it to the committee for investigation or review. Court staff use avoidance tricks to evade accepting and docketing judge complaints. Complaints are not automatically docketed or entered. Complaints against judges are pre-screened (usually by court officers) and refused for illegitimate ‘procedural reasons’ before entry into the court discipline system. The public cannot get sufficient or reliable data from the court system to determine if its internal disciplinary process for judges is evenly applied, including data involving: pp

Specifically, which judges have had complaints? How many? When? Why?

pp

For what type of cases? Which cases in particular?

pp

If investigation and/or discipline ever occurred?

pp

Was the judge excused? Allowed to retire? Reprimanded? Disciplined?

pp

What was the sanction/discipline?

pp

How does the judge-discipline relate to comparable sanctions against ordinary citizens?

pp

Have complaints about alcoholism or other impairment been filed?

pp

Was there a corresponding criminal complaint?

pp

Did the judge’s impairment have an impact on any cases in court?

pp

What was done to remedy those case outcomes?

The reason complaints aren’t public and available is that would create institutional embarrassment — yet medical doctor complaints are public with the state regulatory bodies as a public safety feature, as are most other

9

Governor Rick Perry pardoned and released 35 defendants in 2003.

10

Occupational Medicine, July 2000, as quoted in Florida Times-Unions, Jacksonville, July 25, 2000.

11

The ABA had a National Committee on Judicial Conduct and Disability — a euphemism for the topics in this chapter. As a law student I was the national law school student-delegate to this committee, where I met my first career sponsor, former Stanford Law School Dean Manning. Bayless provided me with teaching and guidance for more than a decade. His support and encouragement are missed.

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professions. But, not judges because they are internally administered. In the bar, complaints often take a long time for investigation and peer review to occur. This black hole may last four or five years. Then complaints get dismissed for illegitimate reasons. Maybe there was an off-the-record chat with an offending judge — Shape up — Don’t embarrass us with your dirty deeds. Another off-book form of discipline can be a transfer, (like pedophile priest reassignment) with no acknowledgment outside the system. Meanwhile, offender-judges stay on at full salaries with benefits. Not a ripple on the pond’s surface. Does this light-weight method of discipline work to reform judges? Get them sober? Some conduct such as racism, anger, domestic violence, sexual and predatory behaviors and drug or alcohol abuse may show improvement, but that may be because the judge is put on notice to use more discretion, and he learns a handful of platitudes to use instead. Problems may seem to go away, but they remain underground, impacting the fair administration of justice.

Data about judge discipline (covered in Chapter 8) and other court data quality indicators (covered in Chapter 3) appear to be collected, processed, and released in a manner that renders them inconsequential and meaningless to any quality-in-judging problems raised in this book. Design flaws and data gathering processes are haphazard or not at all (as seen above in the ‘disability’ data.) Data collection is designed to prevent and block effective recognition of a problem, thereby blocking change in the institution. So Courts can say, ‘there’s your data — see, no problem;’ or ‘here’s the data –any problem must be your problem.’ They take no ownership for causing and perpetuating judicial abuse problems, and no responsibility to be relevant in their data and quality assessments. Meanwhile, Courts control essential raw data, preventing independent assessments about the digital efficacy of the Third Branch, all affecting a national pursuit of excellence. So court users are provided with judge case-management performances that range a spectrum from excellent, to good-acceptable, to standard-still acceptable, all the way down to poor (acceptable or not?), and beyond to corrupted & unfair. I’d like to see this in a bell-curve graph, but there’s no reliable public data yet available.

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A LACK OF CAPACITY Judges suffer from physical and mental ailments, including depression, anger, Alzheimer’s, dementia and symptoms of aging (including falling asleep, absentmindedness, forgetfulness, and hearing loss.) As mere mortals, judges suffer from every kind of mental illness and physical affliction suffered by man. Thirty-seven states have mandatory retirement — often age 70 to 75. But judges in those states evade the retirement requirement. Courts wangle around to fashion evasive rules or policies to permit retired judges to return to the bench to serve in some reduced and senior status. So-called senior status is a new development. Until recently judges retired in New Hampshire at age 70 because the state Constitution takes away judge power at age 70. When a 71-year old judge wanted to work or needed more income than pensions provided, he returned to private law practice. The new bar-court system changed that. Is 90 the new 70 or is the state Constitution just wrong again? Judges often rail at being forced into retirement, and although mandatory at law, the Club has figured out ways to keep over-age judges in court.12 If the judge has to retire by law, but hasn’t been a judge for ten years, the ‘extension’ may be a function of getting-to-pension.13 In New Hampshire, ten years bench service means 100% pension for life. Judges never contribute (not a dime) to their retirement fund. Pensions are paid out of current tax revenues from the State’s General Fund. In the 21st Century, this represents a sizeable yearly allocation, which no one anticipated putting aside funds, even with the explosion in the number of state judges during the last generation. 12

Reasons for wanting the appearance of a qualified judge for special case assignments is part of a larger problem of special handling demonstrated later.

13

A link to federal and state retirement information for judges, see http://law.jrank.org/pages/7863/Judge.html

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Getting-to-pension was the number one collateral issue in the New Hampshire Legislative Impeachment investigative hearings in 2000, as several ol’boy legislators carried favor by repeatedly calling for judicial retirement pay guarantees regardless of wrongdoing. If a judge should be removed for misconduct, the first thing feared is forfeiting generous retirement benefits. Some club members in the legislature worked hard to get their judges paid well for a lifetime, even if those same judges weren’t behaving well enough to remain on the bench. Judges (and other aging people) also take personally their growing loss of mental capacity. They may feel slighted by the age-rule, and take offense. Often they are unable to recognize or acknowledge the loss of physical and mental function that accompanies aging. Judicial ethics cases devote pages to how judges have sued to stay in office (ostensibly working) and how the ethics reporters feel these old judges should be treated with sympathy and patience. Nothing is reported however about removing a judge from a case who falls asleep, can’t follow legal arguments, or who appears out of touch and incompetent. But what about the litigants? Where’s the sympathy for those who pay for litigation and have to live with an incompetent court outcome? Such slant-minded sympathy is a form of institutional self-interest and bias, and it misses the point of why we have courts.14 (Which is not to provide employment for age-disqualified people.) It’s touching that judicial review committees go to great lengths to find that these judges are not wrongful, malicious, or sub-standard, but rather have a heavy workload, are stressed, or work long hours. The bar refers to Oliver Wendell Holmes, who stayed until he was 91, and Louie Brandeis at 83, who had great law clerks, who produced a lot of opinions and dissents. Nice platitudes, but is this really the quality of justice the public pays for and deserves?15 One retired state Supreme Court judge joked often about his senior moments and how post-retirement special assignment cases caused him to miss his afternoon naps. He was assigned to mediate my case, notwithstanding the conflict of interest that he and Chuck both sat together on the state Supreme Court. I know he tired easily, and deliberately brought chocolate espresso beans to our afternoon session in an effort to keep him alert. Besides his sleepiness, this aged great-grandfather admitted the following: He didn’t know current law He lacked experience in divorce He said the case was just like a broken arm case One underlying issue was my husband had been prematurely awarded our largest asset at an ambush hearing; then allowed to stonewall production of our financial business records, while the case was rushed to trial. The records were important to establishing value of accounts receivable, contingent fee cases, and other business assets — necessary for valuing my former law practice. The prematurely ownership award was decided without valuation. (At the second trial, Chuck valued it at zero.) He physically controlled all records, data and documents I needed to prepare a valuation. It took two years (after the first trial) to get partial data access, which eventually demonstrated about a 30,000% undervaluation of just this one marital business asset. (That’s $3,000,000, give or take.) In our afternoon mediation session, Judge Sleepy told me, just pick a number and settle it. What if there’s fraud in the valuation? I asked. It’s over; live with it, he said.16 He didn’t care about fraud or stonewalling. I tried to point out the fiduciary role of spouses to each other — in marriage and in divorce. State policy is established to protect families, and divorce settlements involve a higher level of trust and 14

See Bernard Goldberg, Bias, Regnery Publishing (2001).

15

I have worked with two national judicial disability committee/organizations, (ABA and NCFJA).

16

I later negotiated a $600,000 final settlement before trial with my husband’s attorney, Tony Tarbell, but Chuck rejected any settlement. Why settle? He knew where the chips would fall, and his MO (modus operandi) precludes any calming behavior, loss of face, or middle ground. Without a direct message from the presiding judge that it would be in Chuck’s best interest to settle, this type of litigator will press for nuclear resolution. The presiding judge had his own reasons for a winner-take-all retaliation order. These two financial litigation styles are explained in the next chapter.

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responsibility by one opponent to the other, (which duty may not exist in cases or settlements involving strangers.) This tired judge had no recognition or interest in fiduciary duty or family law policy and he was unable to comprehend my insistence on having information and not settling a case in the dark. He mentioned his missed nap several times. Mediation judges are privately paid, and I had no control over this choice of mediator.17 He was ignorant about a large body of mandatory divorce statutes, spousal rights (and duties) and case law. I had written the state law treatise on divorce law for judges and attorneys, and found this old judge to be affable to me; deferential to my husband, and clueless about his own mis-administration.18 The five sneaky judge errors that no one cared about were — 1. The special assignment judge was age-disqualified by Constitutional mandate; 2. He was conflicted because of his prior judge relationship with my husband; 3. He was appointed by a judge who had the same conflict and was disqualified from appointing; 4. He was physically and intellectually incompetent; 5. There was no statutory provision for mandatory private mediation and no agreement. So what’s the point of having court rules and laws if the judges don’t think they have use to them? Special case handling is a shadow world in law — even for those trained in law.

WHAT’S THE CONSTITUTION GOT TO DO WITH THIS KIND OF SPECIAL APPOINTMENT? There is a mandatory age of retirement for judges. It is a Constitutional prohibition against judges presiding over the age of 70, but the legal system ignores that and in 1978 enacted a statutory exception to the Constitution.19 Question: What kind of animal is a statutory exception to the Constitution? Is that like a unicorn?

Is anyone else here noticing or asking about the legality of a statutory exception to the Constitution? [The 1978 date coincides with that other court take-over trick — where judges also assumed control over all attorneys and set up their monopoly (another unicorn).] Someone who did notice the illegitimacy in appointing age-disqualified judges — was the Chairman of the State Board of Education John Root, who later filed a lawsuit over the Supreme Court ruling in the Claremont Case (Claremont I)20 over school funding. Retired Judge William Batchelder (who was over the age of 70 and therefore disqualified to sit) was specially appointed to sit on the initial school funding case. Chief Judge David Brock later said he picked Judge Batchelder because of his pre-known propensity to vote ‘correctly’ on the issue. The Supremes ruled on Root’s challenge, and —surprise—found what Brock did in making the retired judge appointment was actually okay –notwithstanding the language of the state Constitution, because Supremes are, well supreme, and therefore they get to give the last word in interpreting what’s in the state Constitution.

17

I have since mediated many cases and find that it can be an effective and efficient alternative to trial, when a judge uses judicial authority to ‘encourage’ parties to participate. Otherwise, it becomes just another weapon for insiders to take advantage of a weaker party.

18

Mis-administration means the judge doesn’t intend harm or is unknowing (mistake); Mal-administration has the added element of malicious or bad intent.

19

See NH RSA 490:3 Temporary Justices.

20

Examples include a line of Educational/School Funding Cases. These cases tend to be national lobbying movements, adopted by political judges (like the Unification of Lawyers Movement) where judges organize a law case, then execute a pattern of trick rulings. By studying the parallels, (which I am convinced are logically flawed) it is possible to discern the intellectually dishonest pattern of judicial activism in similar genres of cases across the country.

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The term for this judge technique is intellectual dishonesty. So far, there has been no way to overcome the Court’s circular reasoning. Judges set their own system rules, declaring them to be supreme, even if they invade legislative and executive and Constitutional authority.

2

WHAT DO RETIRED JUDGES GET PAID? The parties pay the extra judge in the range of $350 to $500 an hour. $800 to $2,000 an hour (or more) is not unusual. New Hampshire courts love to claim that retired judges are volunteer and are a “tremendous resource” for the courts. But they do get paid … and what about the poor parties involved in these cases who have to deal with the bias and incompetence of these guys? Who cares if they are a tremendous resource for judges? They often are not appropriate or competent to sit and decide cases. 21 Retired judges already receive 100% of their highest pay grade in New Hampshire.22 They make no out-of-pocket contributions during their careers. Judges expect the double-dipping post-retirement appointments, as perks. The new national phenomenon of retired judges on retainer with private corporations — to sit as high paid mediators on classaction-settlement boards — has judges retiring early in order to share in the free cruises, trips, cars, fees and other perks that come from ripping off class action settlement plaintiffs. The courts use retired judges as special appointments or temporary judges or appointees; they use them for case overloads; to relieve for vacations; and as mandatory mediators. Retired judges hear entire cases. There is no ability to remove a retired judge from presiding over a case, even if his appointment is unConstitutional on its face. Sometimes these appointments are volunteer, but usually they are paid handsome hourly rates. Perhaps it might be worth avoiding the drawn-out litigation process, if the trier of fact were competent, trustworthy, and each party can afford private judging. But is it prudent? Legal?23 In my case, this old judge also reminisced about his time with Chuck on the Supreme Court. He warmed up the mediation with a few stories about times when women weren’t in court as lawyers. The good ol’days. He was gentlemanly and oblivious to his bias toward me, and deference toward my husband. He pushed (only me) to settle quickly, this is like a broken arm case, he insisted. He didn’t push Chuck, and of course, Chuck would never settle more than a token. He was clueless about concepts of protecting a weaker partner against an unethical dominant one, and never heard of a fiduciary duty between spouses. He didn’t want to hear me, and he did his time quickly,24 with obvious special courtesy for a former fellow judge. The other problem with retired judges is they don’t have their own staff, so utilize free help to draft opinions and complete their work. This may be the chief judge, bar attorneys, court clerks and other disqualified but interested insiders. That puts litigants back in the same situation where court work is secretly handled by someone with no business being involved, or who is conflicted from authoring the decision. Plus the lack of transparency. 21

Federal law, the Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351-364 allows anyone to file a federal complaint about a federal judge who has engaged in “conduct prejudicial to the effective and expeditious administration of the business of the courts” or has become, by reason of a temporary or permanent condition, “unable to discharge the duties” of the judicial office. The ABA Committee on Judicial Disability at the time I was involved largely focused on pensions, retirement perks and similar issues — not the other topics in this chapter, and not on filing complaints against judges.

22

Depending on the state and level of court, annual judge pay is from a low of about $70,000 to $255,000 a year plus ample vacations (several months) and light work hours, free retirement, and lots of top grade perks. Judges make more than governors or the President. Certainly more than the legislators make — in New Hampshire, state legislators are truly volunteer, and as compensation receive only free tolls on the highway and an annual ski resort pass.

My guesstimate is it costs at least $35,000 a year to be an active state legislator, a cost which requires an outside source of income and funds. There are also spouses of attorneys in the legislature, who become critical water carriers for judges in terms of introducing and steering court-sponsored legislation. 23

Bigger still, for those honcho-judges who want a special private court system for rich people and corporations, does this rich fast-track system violate equal protection? Poor and ordinary people use slow, public state court system, which those wealthy enough to afford the rich trial process can avoid all the openness, publicity, and embarrassment of ordinary people Constitutional courts?

24

In these cases, mediation is treated as a catch-all trial-avoidance-tactic, without training, or structure, or neutrality requirements for the so-called ‘mediators’.

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The legal system often claims case overload as reason to use retired judges for settlement conferences and so-called ‘lesser’ cases. I am convinced there is a direct relationship between the poor quality of outcome/services provided by judges and the number of appeals filed. If there was less ‘special handling’, there would be far fewer appeals filed. Reining-in abuse of judicial discretion could eliminate appeal court overload. Lower courts can be very active — especially cattle-call cases involving drugs and alcohol, and heavy demands in family law cases. Both these high demand areas are the result of dramatic changes in national political policy. One policy criminalized more Americans for more ‘new’ crimes, and for longer incarcerations. The other reflects a change in social mores encouraged by judge-initiated changes in divorce law. To decrease court usage, study and revise national policy. There are many low cost and free alternatives to expansion in judge numbers — some with much healthier effects on society. Judging is not an overworked occupation, nor do judges operate without an abundance of staff, clerks, other help and technical resources they do not pay for. I see an emerging trend where judges delegate their duties over to other law insiders — sometimes to retired judges; sometimes to paid friends by special appointments. Using a retired judge lightens the presiding judge’s personal work load. It causes law clients to pay for what should be free, and it distributes client-wealth amongst industry insiders.

INCOMPETENCE The court’s definition of incompetence differs greatly with mine. My experience was getting divorced in front of several successive judges who had not only no experience in divorce law, but they each didn’t care to hear or learn how the statutory process was supposed to function. 25 To prove incompetence — the standard test is you have to prove judicial conduct and establish a very broad lack of so-called necessary knowledge and ability, and then you have to prove it happens consistently (more than once), and the judge is unable to his discharge duties of office.26 Essentially, that eliminates finding a judge incompetent who thinks a divorce is a car accident. (Perhaps a train wreck, but not a broken-arm tort.)27 In general, incompetence can be an intellectual or moral deficiency or physical impairment. The intellectual capacity of a judge is assumed, however it probably should not be, especially as age sets in. It should be included, however, inclusion in such a rarified allegation still adds up to the same basic inability to prove this charge to the degree required by the court system for removal action. It is a set-up to fail. Retirement meant “age limitation” (which is more relevant than ever.) There is no competency check — just A-linein-the-sand birth date. Dementia, Alzheimer’s, and other age-related disabilities are based on cognitive impairment criteria. This isn’t just softening eroding bones — it is mental disability. The practice of feeding and paying judges to get them over the retirement finish line should be secondary to the quality of judging they dish out. It seems to me that the institution has lost track of any goal that courts exist to serve the people, not to give judges jobs. Not only is the Club bending backwards to avoid removing judges early for cause, but it also continues to re-hire retired judges after they have passed the mandatory age of retirement.

ALZHEIMER’S AND SENILITY The damage and losses caused to a litigant, (who deserves a fair, impartial and competent job by any judge) does not enter into institutional assessments of problems with judicial competence. Cases regarding judicial competence revolved around getting treatment or removal of a judge, and they arise from complaints about the judge’s neglect or delay, but not for defective decision-making. Defective thinking may occur from age, ignorance, disease and memory loss. All are involuntary, but there is no recourse to clients for mentally impaired judging. Courts rarely formally address those problems (except the judge may raise his mental impairment as a defense to other charges — as a mitigating factor

25

My case was decided through discretionary factors outside of the statutory framework.

26

In re Baber, 847 S.W.2d 800, 803 (Mo. 1993).

27 A tort is a civil wrong. When I arrived at law school, I thought it was a French pastry.

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to explain and obtain leniency in a resulting judge-disciplinary process.) More often, complaining about a judge’s mental impairment will result in the reverse — there will be no review or censure of the judge, but the judge will retaliate against the attorney or litigant, ordering financial and other case-outcome-losses. If an attorney raises the age-incompetence reason, it will stimulate the angry judge to retaliate by filing a conduct complaint against the lawyer.

2

One Virginia lawyer suspected his judge suffered from Alzheimer’s and tried to get his case re-assigned. The judge has both lucid and bizarre days. In court, she confused the parties with people from other cases, claimed to have made rulings that didn’t exist in this case, and lost court filings while she stored the case record in her office. Her memory and disposition seemed impaired. The attorney eventually complained in court, and in reply the judge issued a professional conduct complaint against him. Her final decision trounced him, and he spent three years on appeals and defending against her bar complaint against him. The judge said the attorney’s complaint was as a sign of disrespect for her. The attorney was at the time dealing with impaired elderly parents, and was familiar with classic symptoms of aging brains.

LACK OF CONTEMPORARY SKILLS Calling the judge incapacitated because he sat on a high tech software infringement case, (he asked the attorneys to explain to him how the Internet worked) may not be technically correct. However because of the rapidity of technological advances over two decades, it may be unfair to the parties to be saddled with such a backward thinking, older judge. Arguably, principles of law, contracts, copyright infringement and similar legal issues are fungible, and/or can be explained by the lawyers in the case, but having to teach a judge two generations or more removed the fundamental basics of high tech, suggests the courts are not dealing with aging judges, who simply do not step down or retire despite their aged condition. Courts often claim a lack of judges is justification for more funding to fill what they claim is an unmet need. These claims are largely misdirected at state budget funding, and are susceptible to a variety of outside counter-arguments. A cost-analysis and pubic policy discussion should occur before creation/funding new judge jobs and another layer of officialdom. The dilemma of aging judges, especially those who were first appointed or elected during the beginning bar surge in the 1970s and ’80s, means judges who have been sitting decades in a closed legal atmosphere who may not have contemporary experiences and knowledge for practical application in the cases they hear. Is it misconduct? Disability? Neglect? The inability to understand the context of contemporary technical and social issues is not recognized as a breach of judicial code, yet goes to issue of quality of judging received, especially for corporate and business litigation. In light of the enormous sums paid in legal fees and costs, an aged judge is simply not a good return on corporate or consumer investment. Best skip this judge and find some alternative legal solution.

Smartphone Exhibits As ever, I try to look at the opposite side and have found that increasingly, pro se and low-income parties are removed from a fair platform in the litigation processes because tech-savvy judges encourage high-tech-gadgets in court for attorneys, but without due-process and accommodation for ordinary people. One judge rushed through three separate ambush contempt findings (in three separate hearings) without advance notice and opportunity for response. The judge relied on an attorney’s I-phone 6-S to admit ‘documents’ into evidence. The judge also initiated an ad hoc prosecutorial style investigation of an expert witnesses private email account, (despite disqualifying him from testifying.) In fact, the small-screen electronic information was not accurately or truthfully summarized by phone-waving attorneys in court. So the speed and inability to challenge a two-inch phone screen of finger swipes and rolling emails as electronic ‘evidence’ raises questions of due process and fundamental fairness.

DEAF AND HARD OF HEARING This problem is prevalent among older judges, just as it is in the general population. I have observed judges who mumble, don’t hear, and snap at litigants and witnesses (especially women) for not speaking up. They may wear hearing aids, which may not function correctly. As the number of retired judges increases, judicial incompetence will increase, until Constitutional retirement disqualification mandates begin to be followed.

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At my last bar disciplinary trial, the presiding judge was a retired judge, returned to sit by special assignment. His hearing aid malfunctioned throughout trial. He spent much time on the bench fussing with his earpiece, and, in a grandfatherly way, stated he would take a few extra months to read the transcripts before writing a decision because he could not hear the testimony. He took more than a year, (almost two) and appeared to have missed or skipped over a great deal — including at least one day of witness testimony. It appeared he had difficulty getting a decision into writing. I’m influenced of course by my experiences, but this decision was frightfully deficient about evidence presented but ignored (depending whether or not it was exculpatory to me.) As the defendant in this proceeding, my license to practice law was (again) at risk. I suspect the judge wasn’t competent, nor reading well two years after trial, and that another bar ‘helper’ drafted or formed his decision. Maybe not,28 but his written decision was missing references the last two days of defense witness testimony, which I, of course, thought not only compelling, but a slam-dunk to defend the allegations. Instead it read like a bar prosecutor order. Even with a malfunctioning hearing aid, and even deaf, how could a judge ignore or overlook so much exculpatory testimony and evidence? At trial, bar prosecutors made bizarre attacks on defense witness, Karen Testerman. All the information provided (which she knew from working beside me) was disingenuously disregarded, including her own knowledge about the parties, practices and events as they transpired. Instead, prosecutors attacked by questioning her about what are Christian values. Their twist was to try to impeach Karen because she is a woman who daily lives her faith. The Prosecutor repeatedly tried to twist Karen’s faith in God to show it meant her belief in a higher power meant she would lie in Court. It didn’t make even logical sense to me at the time, but heck, this was a special bar court with two special volunteer bar prosecutors, who thought this attack was the road to morbid impeachment of a fact witness. I thought both attorneys were grasping at straws and was angry at how the prosecutors were personally offensive and mean-spirited — as though their own careers were at stake. Frequently, this hostile disrespectful tone is used like a stage performance in bar discipline of its court officers.29 As the target proves over and over that the litany of vague allegations and charges are not true, the case gets whittled down to being handled at the end as contempt of court. The prosecution gets shrill, personal, and vindictive with arguments twisting the case into a pseudo-criminal case of disloyalty against the king. Only of course, America doesn’t have any kings.

After a half-decade of defending myself against two dozen or so alleged bar-disciplinary infractions, (all stimulated during my divorce) the bar’s lawyers needed a win in this last pending case — as a face saving outcome for the millions of dollars of resources invested in bar discipline of me. The only live witness against me was a Harvard psychiatrist hired by the Bar Association (his $700/hour bills were charged to me.) He was supposed to support the last vague bar allegation that I was somehow crazy and unfit to practice law. Instead, the forensic doctor said relatively nice things about me and my mental functioning. His trial testimony was not quite as nice as he wrote in his report, but nice enough that my mother would have been proud. All of that and the parade of disproven criminal allegations didn’t really matter to the outcome, but the outcome was more readily obtained, I suspect, by assigning this case to a retired, hearing-impaired judge.

28

The eventual recommendation, (after eight years of internal processing) was suspension — not good, but not even close to what the judges at the state Supreme Court ordered, namely disbarment.

29

My ‘trial’ was calendared for Monday through Sunday at the main Supreme Court room (weekend included). Question: who gets ordered to special trial on Saturday and Sunday at the most intimidating courtroom in the state? Answer: A predisposed well-publicized star chamber case. In retrospect, it felt like a stage performance.

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2

THERE ARE A SERIES OF OTHER JUDGE DISABILITY CONDITIONS, NOT NECESSARILY RELATED TO AGE, THAT AFFLICT JUDGES ABILITY TO WORK. THEY INCLUDE — ILL-TEMPERED AND BURNED OUT A judge’s character may not be dishonest or a conflict of interest, but just plain offensive or not suited to the role of sitting in judgment of others. This is called intemperate judicial attitude. Rules of conduct for the regulation or discipline of so-called judge ‘attitudes’ are so vague and over-broad as to be ineffective. Generally they provide only that a judge must observe high standards of conduct.30 Many intemperate behaviors that affect case outcomes include signs of arrogance, bias, bullying, being distracted or confused about case facts, mis-informed or ignorant about applicable law, inconsiderate, lazy, racist, sexist, and sometimes using profanity, and vulgarity.

The Wisdom of Solomon Solomon is sometimes regarded as a role model for judicial wisdom. He’s the dude who ordered a baby cut in half, to test which of two women claiming to be the mother would relinquish her claim to save the baby’s life. Overall, Solomon was one of the most abusive men in the Bible. His wisdom is an oxymoron about inherent judicial acumen and justice.

BULLYING AND ABUSE OF AUTHORITY When judges are selected because of politics, money, or connections, there often is no quantifiable assessment of anger or temperament. Since courtrooms have a lot of stress and hardship, tempers, flare and anger may be an everyday occurrence and is a fear based reaction. A judge who is intolerant, ego-centered, or lacks the skills, respect and flexibility to maintain the courtroom, may stoop to using raw authority to bully litigants as a means of asserting the position or forcing control. Bullying occurs in and out of court. Sometimes, judges just forget that their authority is not limitless. One example is a judge who went to the town dump and used his authority to arrest and conduct a trial on the spot.31 In other cases, judges have become upset with litigants who filed complaints against them. They retaliate by having the complainers arrested. One even mislead police to make sure bail was denied.32

GRANDIOSITY The inability to take off the attitude with the robes can lead to self-aggrandizement. One ex-wife member complained that after her husband was made a judge, he could hardly take off his robes at home. His imperial mannerisms grew daily, as he demanded a newly-discovered domination over everyone — including wife and child. Being treated as a king at court inflated his ego. It can be a short step to believing the power to dominate at work is universal. It is an occupational hazard of being a judge — taking one’s self too seriously. Ex-Wife Carolyn Sullivan reported, After Michael was made a judge, he told me I had to change my clothes. Judges’ wives don’t wear jean, he said.

30

Model Code, Section 1-A (1990).

31

Brewer v. Blackwell, 692 F.2d 387 (5th Cir. 1982).

32 See Wall v. Heath, 622 F. Supp. 105 (D.C. Miss, 1985); Harris v. Harvey, 605 F.2d 330 (7th Cir. 1979); Zarcone v. Perry, 572 F.2d 52 (2nd Cir. 1978).

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SPOUSAL AND CHILD ABUSE Until the last decade, this was often not considered a crime as long as it stayed in the family. Beating a wife or child was a private family matter. For judges, it still is. A review of disciplinary cases against judges reflects no official reports or discipline regarding spousal or child abuse of family members. However a state Supreme Court Judge may have the same propensity to bully, batter, and abuse his spouse and child for years (as badly as a poorer or lower status’d parents or spouses, who will spend years in prison over lesser charges.) But the difference is the former is insulated from reporting and prosecution by his elitism, court rank, and an insider network of court and state workers, including the police and prosecutors. Even when physical abuse is so severe as to result in public reporting, the related criminal case handling (even with long-term anger/abuse issues) is an exercise in damage control and avoidance. The victim may even ‘take responsibility’ to protect the judge-perpetrator, because of pressure to protect the judge/breadwinner’s reputation. One treatise calls it ‘a general disinterest in domestic violence’ but is seems to me, for years it has been a convenient avoidance and cover-up for high-ranking judge-honchos who severely batter their family members. An interesting statistical study about non-reporting of wealthy Bostonians for child abuse calls this ability to evade detection among the wealthy in general “a dilemma,”33 because even mandatory reporting laws allow the powerful and well-connected to take advantage of cracks in every stage of laws designed to protect and punish parents for their domestic abuse.34

BURNED OUT I have experienced working with judges who have been on the bench thirty-plus years, who, on a daily basis show signs of burn-out. They are blithe, cool, and dis-engaged with the case, flip and rude with their responses, especially to attorneys, and just plain intolerant of the human factor that occurs in justice. I find that people can lose in court, but when they feel dis-respected or unfairly treated, they become bitter. This bitterness goes both ways — bitter judges who are cynical, leading to law-clients who become bitter at the poor treatment they receive in court. If the judge discipline system is aware of burn-out, they do not record, track or disclose it.

PERSONALITY STUDIES One psychologist conducting a study of 10,000 people for a Meyers-Briggs personality research compatibility project discovered a propensity for lawyers to categorically fall into a particular personality type.34 She concluded that attorneys and judges most often come from a particular propensity, and as a whole are not representative of the thinking and judging processes of the general population at large. Law tends to attract, maintain, and represent those of a limited thinking and analyzing pattern, which is less intuitive and more linear than the general population. Dr. Sherman identified a lesser degree of emotional and non-rational with this population group. They tend to be rigid in thinking, are generally not ‘feeling’ types, so have difficulty knowing and valuing empathy, compassion, sympathy and similar Judeo-Christian ‘virtue’ traits. They value and seek formal authority more than most other professions. There are doubtlessly other characteristics of lawyers and judges as a class — such as the ability to rationalize anything — to equivocate any outcome they want to order. These are examples of both an inherent and a learned thinking process — those are both good and bad traits of judges. It is not the mindset/pattern of a majority of Americans. In law school we were taught to argue one side of an issue, then turn around and argue the other side. Everything could be flipped. Winning was the important factor, not fairness.

33

The Bostonian, Suburban Shame, How Wealthy Parents Get Away with Child Abuse, December 2003.

34

Dr. Ruth Sherman, PhD Studies, Honolulu, Hawaii (1984).

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CAVEAT There have been several notorious cases where a judge was on trial for abusive judicial temperament and bad behavior on the bench. In judge tricks, things are often not what they first seem. I once attended an extended Boston trial, to watch the use of the judicial conduct process in action: a rare public trial, used to publicly remove a racial-minority judge from the bench.

Relative status. In analysis, it is important to look at the relative insider-status of the parties involved. The tip-off for this case was an orchestrated media spectacle against a targeted judge. When any case appears to be conducted with special handling, and at a different standard as other “similarly situated” cases, it suggests targeted bias. The first step to identifying whether a case is a illegitimate use of court authority is to make a list of all the apparent special handling, and a comparison with how other non-targeted cases were handled. Here it was in the insider discipline system.

2

The Massachusetts judicial conduct trial was to remove a Hispanic/Cuban female judge.35 She was being tried by State Bar Prosecutors for alleged abuse of office, over her alleged leniency in her sentencing of a transvestite. I took the T into Boston and sat through her trial — a media circus. The judge’s ruling was unpopular and widely reported on television, but because her acts were clearly within the discretionary authority of any judge, the case had many aspects of being a witch-hunt. And an unpopular minority judge was drummed off the bench for internal prosecutor/political purposes within the legal system. Yes, the judge made an unpopular ruling. But law is not a beauty pageant. What was particularly disturbing was an inflammatory television film-loop showing the judge shouting and pointing her index finger at a young female prosecutor and telling her to sit down. The loop was shown hundreds of times before and during the three-week trial. The trial itself was a sensational media event held in a downtown Boston courthouse, orchestrated by the prosecutor’s office. It seemed retaliatory, and I watched closely as the same young female prosecutor huddled with the boys working the prosecution table. What I observed appeared over-sexualized, vengeful and illegitimate. The attacks on Judge Lopez were self-righteous words of hate and disrespect. This disparagement was meant to discredit, and had nothing to do with the merits of the case, or the rule of law, or any of the formal legal elements of the charges. They wanted the judge on trial to know they didn’t respect her, and it seemed to me they needed to crush what they were most afraid of — an outsider on the bench. It is important for the public to be able to discern for themselves whether or not trials are conducted fairly, and if the defendant is judged by the same set of standards as others are. In this case, the judge’s yelling, angry behavior — should have been judged against the behavior of other judges (notably white male judges known to have temper tantrums or to bully or yell at disrespectful attorneys/prosecutors.) Here, a Cuban female judge did not appear to be treated with the same ‘tolerance’ as many of her white-male-ol’boy counterparts. The case seemed to me to be one of selective prosecution, tried as a media spectacle, held out for public view as judicial reform, when in fact it was probably insider purging. The judge was eventually found guilty of lying to investigators and removed from office. This is the same type of secondary charge used to convict Martha Stewart, me and others.36 While found to be innocent of all primary charges, (for the Boston judge, that was abuse of discretion in sentencing within the guidelines) the judge was convicted of lying later to investigators — at best if actually true, it would be a minor secondary offense. I am sensitive to the manipulation of this type of secondary conviction as untruthful or contrived (similar to entrapment but slightly different.) It is a tool employed by prosecutors and sympathetic judges against targeted people that the ol’boy system wants to scapegoat, discredit or take down as a public example. The tactic gets utilized when prosecutors miss the mark, but have to come up with some face-saving ‘secondary crime’ to justify all the prosecutorial hoopla and expense. 35

Judge Maria Lopez, a female judge in Boston.

36

I was similarly charged — at the tail-end of trial in the last of two dozen professional conduct cases. Somewhere between stealing and crazy, prosecutors on the last day threw up an unsubstantiated allegation of lying to an investigator, so forgive me for being highly skeptical about all the others accused of this. Lying to investigators (I found out later) is a fallback charge for prosecutors to save face. They spend millions in public dollars for a prosecution circus that fails to convict. The judge at the clubhouse may throw in this small bone as a consolation prize. A made-up example is that a prosecutor loses in court on five alleged motor vehicle felonies, but ends up crowing ‘I won’ on a last-minute fallback charge (raised during trial) of not wearing a seat-belt. If you see this charge, especially as the sole basis for ‘guilt’ and ‘punishment’, look for other signs of clubhouse contrivance.

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In a suspiciously similar situation in Connecticut, another Cuban/Hispanic female judge, Superior Court Judge Carmen Lopez was severely criticized at her second-term reappointment hearing. She is one of five Hispanic judges in the state. Criticism included charges she feuded with the judicial establishment and was overly compassionate, even sometimes emotional in her case handling, especially in cases involving children. Say again? Too compassionate with children is a judge crime?

The court system appreciates homogeneity of membership in the judicial arm of the country club. The established insider is one who greatly values authority and regulation, desires acceptance and consensus within the group, and categorically mistrusts and fears non-insiders and people unlike themselves.37 Minorities elevated to the position of judgeship are expected to abandon or hide prior lifestyles and behaviors, (stemming from genetics, race, religion or social standing) in order to adapt within the dominant white-male patterns of behavior. The clubhouse is not a place for non-conformist or judges who might embarrass others in the legal profession. Nor, apparently, is it for a judge who embarrassed a young lady prosecutor? Club members who embarrass aspiring or recognized insiders risk being targeted themselves for retaliation and removal.

22 SEX WITH A JUDGE

§

Sex with a judge is always a no-no, even though no codes or rules may prevent it. This includes sex between the judge and an attorney, or with any party, or with any player in the case. Judicial oversight virtually ignores recognizing situations where a judge — engages in an emotional relationship, or is or has been sexually intimate with, or makes aggressive sexual advances — toward the people who appear in his courtroom. My experience is that judges of both sexes abuse their power. It is not about sexuality as much as it is about raw misuse of authority. Ethics rules and insider conduct case handling nit-pick about whether or not such situations are consensual, or whether or not sex will have an ‘adverse affect on the judge’s judgment.’ Poppycock. The fundamental issue is that the inherent powers of judges to control others precludes them from sitting on cases, if there is, was, or could be sexual contact. Judges trying to avoid disclosure sometimes rationalize that the public good is better served if they don’t disclose such details. Or sometimes, they argue that they have a personal right to privacy that means they don’t have to disclose an intimate relationship if they choose not to, especially if the relationship is over. Both arguments are bogus.

37

Susan Reynolds, The Everything Enneagram, Adams Media (2007).

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The public good argument goes like this —

CHAPTER

The public needs to believe that judges have the highest integrity and by making an embarrassing mandatory disclosure, it will tarnish that overall image. Also, disclosure needlessly makes the judicial profession look bad.

2

The privacy argument goes something like this — I’m entitled to my privacy. Just because I’m a judge, doesn’t mean I give up all my fundamental rights. Besides, I’m not a judge all the time. What I do on my own time is my business. Besides, disclosure would cause hurt to my innocent spouse or my children. Why should I have to unnecessarily suffer embarrassment and hurt innocent people? Look for a string of other generalizations, such as the affair is over; it’s in the past; it’s adulterous (or gay.) There is a simple response to the public good and privacy arguments — A judge is not required to go into detail about what his conflict of interest is; the clerk of court can announce there is a conflict of interest and the case will be reassigned.

OTHER JUDGE ILLUSIONS The rationalizing for a judge staying on a case when sexual activity is a factor can be endless. Take your pick while trying to remember that judges believe they are special people, better, more intellectual, more endowed than the rest of us. Also, they are really good at rationalizing. Learn to recognize bogus sneaky reasons for not making the mandatory disclosure to you, if you are a party. The illusion that somehow a judge, better than ordinary human beings, is able to separate out complex intimate emotions from the rest of his (or her) mind, in order to be completely impartial in judging is an absurd rationalization. Even if this judge does hold fewer emotions and sensitivities than the rest of the population, there is no getting around that judges hold unusual positions of power over others, but they have no special ability to assume schizophrenic traits on demand. Courtroom litigation is a process with lots of emotional stress. Stress which triggers adrenaline surges and chemical releases of dopamine and brain chemicals, which often accompany fear, safety, and sexual arousal (that may surge as a result of acts of domination.) Both in victory and defeat, (and certainly in the battle in between the two) emotions get triggered where power-players act out sexually with other people involved in the case. This includes judges. There are common denominators between a judge who holds power over a person in her courtroom and an attorney who represents a client in court: Each is a professional who may get turned on by feeling personal power over people in trouble (who are emotionally and intellectually vulnerable) Each is in a superior position of authority over a client Each is in a professional position of trust and authority over the client There is always an inherent power differential between the professional and the client.

The Rule of Kiss ’n Tell The simplest practical rule for judges is Kiss ’n Tell. If a judge is intimate enough to kiss (euphemistically speaking), then he is required to inform both sides that he has a conflict of interest and cannot try the case. This process is called disclosure. It is mandatory for judges to make disclosure of any apparent or potential conflict of interest. Sex between judge and a party can never be anything less than judicial abuse. The inherent favoritism accruing to one side operates like a playground teeter-totter, where even a small physical nudge can offset the delicate balance. In courts, the delicate balance is one of neutrality and fairness to both parties. Judges often claim they are able to be impartial in their minds despite personal involvement with another in the case. A sexual liaison always has an element of self-interest and selfishness for the parties involved. A judge thus involved will necessarily have to adjust his rulings 96

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either to contribute weight to the other side, or to add weight to compensate for his personal interest. Because so much of case management involves discretionary rulings where a judge is immune from correction or reversal, there is no way for parties to a case to know for sure that a sexually involved judge is fair. The inherent risk in the case is too great a threat to justice. The opposing party (the one not having sex with the judge!) will not have sufficient information to force the judge to step down, and is rarely knowledgeable enough to evaluate a judge’s trustworthiness. Trust is the operational platform. A secondary argument is usually the one that a party consents to having sex with the judge — an argument ignores the inherently unequal status vested in the role of the judge. Judges hold unrestrained power over people’s freedom, bodies, assets, families, and in short, their fate and fortunes. There can never be equal parity when a judge is presiding over another, so even if a client were to initiate or consent to an affair or sexual act, the judge still has the irreconcilable duty to be fair and impartial to the other party to the case. That is virtually impossible once a judge has any personal or emotional involvement. This position isn’t necessarily how the judicial conduct review boards see it. Courts avoid making rules about it.38 I think they want to keep all options open for judicial discipline, so make vague general rules that can skip around a city block and not find any problems within. Although judges may or may not face discipline as a consequence of case-related sexual behavior or harassment, the issue of sexual behavior of a judge is ignored, skirted, and avoided by claiming it is a relatively minor matter best reviewed and handled privately. As though it did not affect the underlying case!

THERE ARE MANY VARIATIONS — VARIATION 1. SEX BETWEEN THE JUDGE AND AN ATTORNEY A judge may have sex with one of the lawyers or the other professional players working a case. While she (or he) may claim such intimacy does not necessarily affect the ability to be neutral, this claim clearly is self-serving bunk. If the judge or attorney is married, the adulterous affair creates a need to avoid public knowledge (this includes the spouse). Secrecy is an element of the relationship. Social and professional ramifications include gossip, reputation family, career, job, and income. Sort of a house of cards impact model. Other than those, no problem. So it becomes personally important and the judge becomes vested in concealing this type of relationship. In one New Hampshire case, a married female judge failed to disclose her extra-marital affair with one of the attorneys appearing before her in a case. The attorney was a many times divorced senior partner of a prestigious firm. Both people had professional obligations (i.e. separate mandatory duties) to disclose the private relationship to the others involved in the case. But the duty would trigger another duty for the judge — the duty to recuse from hearing the case. Both lovers kept silent for obvious reasons, but violated three mandatory professional conduct duties: one violation by the attorney for failure to disclose a close personal relationship with the judge, and two violations by the judge.

VARIATION 2. SEX BETWEEN THE JUDGE AND A CRIMINAL DEFENDANT For years, one judge who was a notorious pedophile, ordered boys and young male defendants into his chambers alone, while their attorneys, court staff and prosecutors overlooked what followed. Afterwards, the defendant had charges dismissed or sentences suspended. It was quid pro quo39. Legislative hearings40 twenty years after the death of New Hampshire District Court Judge John Fairbanks contains testimony including that of a frustrated rookie cop, who

38

For example, see the federal code for judges that merely broadly provides judges should avoid the appearance of impropriety. http://www.uscourts. gov/RulesAndPolicies/CodesOfConduct/CodeConductUnitedStatesJudges.aspx

39

Quid pro quo is a trade, bribe, exchange or tradeoff. It often has a shady connotation,2 such as tit for tat, or eye for an eye.

40

NH legislature, House Bill 1338 (1998 session).

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claimed he repeatedly reported this type of incident, only to have it ignored. In his frustration, he added notes to his official arrest report what the suspect told him —

2

Hey man, why ya’ bothering to arrest me at all? Since all I hafta do is give the judge a blow job and he’ll release me.

The later legislative hearings demonstrated an unbelievable ignorance by court administrators and government officials, who overlooked a decade of reports about the judge’s peccadilloes. This was a systematic state-wide cover-up. Among the list of people who professed to be ignorant were several attorney generals, a governor-to-be, police and court staff. Fairbanks was eventually investigated after he converted over ten million dollars (as high as $13 million) in trustee funds to his own use. This judge was closely connected to a top-tier Ol’Boy, and received an enabling tip-off that caused him to flee into hiding minutes before the police arrived. He lived covertly until a suspicious mob-style death in Las Vegas (labeled a suicide) several years later.

VARIATION 3. SEX BETWEEN THE JUDGE AND PARTY In Civil Cases The Chief Judge of New York, presiding over a divorce case, became so fascinated with the wife that he initiated dates with her, then intimate sexual contact. This occurred before, during, and after trial. After a favorable final order, she tried to end their relationship. Judge Sol Wachtler became threatening, violent, and began stalking and harassing his lover.41 His obsession ended only upon his arrest. He was prosecuted on federal charges of stalking, extortion, and criminal threatening and went to prison where he wrote his memoir.42 What was missing from the list of charges was any reference to the moral turpitude aspect — fixing a case, obstruction of justice, theft of official services, lying, dereliction of duty. Those kinds of charges never get filed (in any of these criminal judge cases.) Other forms of forced sex and harassment include judges who make improper sexual advances and try to procure sexual favors from women with cases pending before them.43 One judge asked a defendant for sexual favors in exchange for money. She refused and he fined her, then followed her home to collect the fine. When she became angry, he threatened to harm her dog if she reported the incident.44 Judge Wade H. McCree had an affair with a woman during her custody case. The father sued in federal court and lost. The judge was immune from suit. He was disciplined in state court and removed. 45 This type of improper influence has no remedy or remuneration or correction for the opposing party (the one not having sex) who is damaged by a final order, issued by a judge engaging in a secret sexual liaison with the first party or one of the attorneys. That was convoluted, as all of these cases generally are. There is no automatic procedure for the case outcome to be ‘undone’ or corrected, nor any provision to sue the judge. The inherent bias of a presiding judge who is sexually involved with one side is generally ignored. Tough-luck losers live with the outcome.

In Criminal Prosecution Cases If the defendant avoids jail or receives only minimum jail time because they provide sex to the judge, prosecutors don’t complain. The career risk appears to be too great. The Judge Fairbanks case demonstrated that knowledge of everyone 41

See NY Times, Kleinfield, Admitting Guilt, Wachtler Offers Account of the Plot, April 1, 1993, p.1.

42

S.I. Wachtler, After the Madness: A Judge’s Own Prison Memoir (1997).

43 See In re Martin, 302 N.C. 299, 301-305, 275 S.E. 2d 412, 420-24 (1981); In re Ackel, 155 Ariz 34, 40-41, 745 P.2d 92, 98-99 (Ariz. 1987). 44

In re. Gerald C. Molnar, Unreported Determination (N.Y. Comm’n July 18, 1988).

45

AARP Bulletin, Outrage, March 2015 at p. 18.

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in the criminal system, (from arresting officers, clerks and prosecutors) almost all avoided reporting the Judge’s private in-chambers sessions alone-with-accused-juveniles. It was an actively ignoring process. However, if the sex occurs in divorce cases or ones where child custody is decided and marital assets awarded, the final orders have far-reaching negative consequences against innocent parties. While it is possible to ask to have the case reopened and/or a new trial, my experience is a new trial is not an effective mechanism to correct the hardship and unfairness created in multiplelayers of temporary and permanent orders from a biased judge. Such orders are permeated with non-reversible bias. Even if the do-over is in front of a new judge, the new judge may be a clone of the old one, with an added element — revenge against the whistleblower. That means the outcome of the second trial (new judge) is even worse than the outcome for the first. Plus there is the additional cost of re-opening the case and new trial. As for financial damage created by orders from a biased judge, monetary recompense to the injured party for a judge’s misconduct is virtually unheard of. For an innocent person, it is a lose-lose situation. Stories of consensual sex between judges and litigants, and judges and an attorney abound, but are difficult by nature to confirm. When the acts are one-sided or harassing, they may be reported and disciplined, but often in unreported decisions by state court committees. When forced to disclose a judge’s sexual abuse, the legal system, like the Catholic Church, often quietly reassigns judicial miscreants to another jurisdiction without fanfare. Discipline, if at all, is almost always private. Records and data about allegations (filed but not charged or founded) are often not available for pubic review. State disciplinary committees for judges seem to hinge on mild censure or no censure for undignified adulterous or offensive conduct, of a civil in nature. But on a rare occasion, they might remove (or prosecute) judges for criminal sexual conduct such as bigamy, prostitution or rape. The extent such incidents occur cannot be fully ascertained until judges and their supervisors are forced to disclose such incidents.

Discovery of a Judge’s Bad Behavior History Not! There often is no formal legal avenue for an injured party to obtain discovery about complaints filed or a judge’s disciplinary history. This material is handled by peer committees out of public view. There are several longstanding courtreform advocate groups scattered around the country, where such information is part of the collective memory of the professionals involved. The most effective group I worked with was founded by Monica Getz in Tarrytown, New York.46 There are parallels to sexual abuse cases involving Catholic priests. Both have internal secret disciplinary processes; both self-regulate; both hide access to data essential to prove abuse; both transfer transgressors; both use therapeutic approaches to manage the problem and not criminal processes. But institutional cover-up in the priest cases cracked open because of a judge’s historic ruling that ordered 21,000 church documents to be turned over to the other side in discovery. It was a monumental ruling about abuse allegations against scores of priests. However, the parallel ends there, because judicial abuse victims are stymied from bringing civil cases against their abusive judges. No process exists to obtain money damages or remediation because, in general, judges and the legal system have declared themselves (and judge leaders) immune from private or civil lawsuits, and avoid human and civil rights violations.47

PRIVATE SEX ACTS OF JUDGES VARIATION 4. ADULTERY BETWEEN JUDGES: IS IT CRIMINAL BEHAVIOR OR A SMOKE SCREEN? Judges in their private lives, (while not on the bench) who engage in solicitation, adultery,48 and using a prostitute are engaging in out-of-court bad behaviors. Such behavior arguable is immoral and may even be criminal. The actions 46

The National Headquarters of the Coalition for Family Justice. There are several branch chapters, including New England and Long Island.

47

But see the work of the annual Human and Civil Rights Whistleblower Summit, held each summer in Washington, D.C.

48

In New Hampshire during my practice of law, adultery was a statutory crime (a criminal misdemeanor) and was also one of twelve grounds for unequal property division in a divorce, but every time I raised the claim in any case, (my client cases or my own divorce) each judge refused to hear (and actively worked to disallow) any court evidence about adultery.

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reflect on the judge’s overall character. But these acts are not in the same category of acts that abuse judicial powers in court. Emphasis on this aspect of bad judge acts may seek to cloud or conceal or divert attention away from other institutional abuse of authority.

2

For example, one of the biggest abusers of judicial power in New Hampshire in my experience, was a judge who led a posse for the Judicial Conduct Committee to discipline two fellow judges. He alleged the two had an adulterous affair at the Annual Judges Conference at the Balsams — an expensive wilderness resort near the Canadian border that often hosts judge and bar conferences. During two meetings of the judicial disciplinary board, he lobbied the board hard to subpoena testimony from the two, to prove their sexual conduct should be scrutinized and punished, for the purpose of demonstrating that judges should be held to a higher standard of behavior than ordinary citizens. A bounce between two otherwise-married judges, while arguably immoral, is not an issue of judicial misconduct requiring official court discipline. The two consenting adults involved at the Balsams Resort did not affect any case outcome, did not fail to disclose a conflict of interest, and they broke no specific cannon of judicial conduct. The best worst-case against them was that adultery was illegal under a two hundred year old state law. But, the effort to force an admission of an alleged affair was an interesting exploitation of the committee role in disciplining judges. The accuser got to intimidate two other judges, while he himself posed as a stalwart protector of the public interest. He had a platform to pontificate. And he drew attention away from himself at a time when his own judicial abuses were starting to surface publicly in my case. Overall, he wanted to infer was that the court zealously polices its own for immoral behavior. And that he was a judge of both higher morals and behavior who should be feared by other judges. The accuser was also a consummate politician and court manipulator, and I am aware that at the time, the accuser had plenty of public reason to want to deflect committee attention away from himself.

VARIATION 5. SEX IN THE COURTROOM DURING TRIAL The bizarre case of an Oklahoma state judge having sex with himself while presiding over trials at the Creek County Courthouse49 deserves a category of its own. Several staff reported the judge after he repeatedly used a penis pump (he had received at an office party) and for making swooshing sounds during trials. He also masturbated at his bench and exposed himself to a court stenographer, whom he fired after she talked to investigators from the State Attorney General Office. His behavior was labeled apparently not a conflict of interest, but [it] was unbecoming behavior involving moral turpitude. Court is a place of high (and low) functioning brain chemistry without limit.

23 CRIMINAL ACTS OF JUDGES

§

“A culture of greed, bribery and corruption” Description of the Brooklyn County Court system Judges get labeled criminal only if they get caught, charged, and found guilty. Even when caught, they have a better opportunity than most to avoid the allegation at each stage of a criminal proceeding. All it takes is some special act of favoritism by a member of law enforcement or prosecution or other judges or judicial oversight, and the charges go away or are hugely minimized. Publicly reported bad behavior of judges that rises to a criminal level includes bribery, solicitation for prostitution, fraud, grand theft, gambling, DWI, breaking and entering, buying stolen goods, running from arrest, and assault and battery (in and out of court). Also moral charges: sexual harassment, groping, putting graphic porn on state computers, and fraud-type money charges: misuse of funds and estates, and the big-catch all of prosecution — income tax evasion.

49

Judge Donald Thompson, Oklahoma Sapulpa District Court judge, was also charged with retaliatory firing of his court reporter.

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What is interesting about this list, is four-fold: 1. Many of these are acts reported in cases this book — especially in the ex-wives of judges cases. But almost none of the men were ever criminally charged by prosecutors, or even disciplined in the alternative judge-privatediscipline system. Courts actively refuse to recognize crimes committed in cases when the criminal act is done by another judge. Euphemistically, it is better than a get-out-of-jail-free card. 2. What is not reported. Look for what is not there — the serious crimes. Murder, Rape, Deadly Assault, Racketeering, Drug Dealing & Distributing, Extortion. A few of these crimes by judges were reported in the really old editions of the judge ethics books I listed at the beginning of the chapter, but not in later editions. It reminds me of what newspapers don’t cover — judge crimes. The ones reported in the mainstream media are generally petty and reported as though they were an aberrant anomaly within the profession. I’m not sure that is accurate. That’s the problem with proving a negative, so I just note it here as a widespread national problem in non-reporting. 3. What judges get publicly reprimanded, censured or punished for are soft acts — financial mis-dealings, bad behaviors, or morals charges. But generally not hard crimes. Does that mean they are not being committed? Or not being charged? Do judges systematically get to retire instead of being charged? Who’s doing this checking? Why the disparity? Is that good public policy? 4. There are almost no cases about obstruction of justice, lying to investigators, lying in court, jury tampering, witness tampering or the other types of ol-boy abuses of judge-office — yet these are the kinds of incidents reported in this book. Prosecutors aren’t going after that — or after them. The legal system is focused on the other “them” — crimes by citizens who are not judges. This also applies to the media — American newspapers aren’t touching this stuff. But you find it in fictionalized drama (books, TV). [Scott Turrow understands it in spades.] No one however seems to understand the extent the Rule of Law has been replaced by discretion. There are hints in these criminal cases, but the extent and historic progression represent a seismic shift in the operation of law of a proportion I might compare to an earthquake wiping out eastern states from Lake Michigan to Louisiana. So who’s watching the insider system? Who’s defending the Rule of Law? By system design, no one is.50 Unless the media reports and follows the problem (which doesn’t happen in probably 99.997% of the judge abuse cases), there is no other system oversight. (See Chapter 8.)

DOES IT PAY TO HAGGLE? A Miami-Dade County judge was arrested for prostitution in a sting operation along with a priest, a police major and an All-Pro football player. The judge was acquitted of all charges.51 He haggled for a $20 rate from a decoy and later said he was just trying to help the woman. (By a discount?) He told the arresting officers he was a “pro-police” judge — which he said was his way of letting them know he was innocent. “I have gone through two years of hardship, the embarrassment of guilt by association, and a whole lot of money,” whined Richardson. He received a pass on the crime, and a tiny reprimand — “It is improper for a judge to allude to his judgeship to gain deferential treatment from a police officer,” wrote the Florida State Judicial Qualifications Commission. A judge from the Oklahoma Court of Criminal Appeals claimed he was doing research on the Department of Corrections Inmate Discipline Program, when he filed for reimbursement of thousands of dollars of trip expenses and the purchase of new furniture. He was also audited for a $36,400 salary for an administrative assistant who failed to show up for work for half a year. Apparently, however, his assistant played some role in his research trips and was the reason the judge was found to have improperly intervened in her son’s criminal case.52

50

A number of think tanks defend slivers of the Constitution, and notable attorneys have commented on the absence of the Rule of Law in individual cases, but I have found no public body even recognizing the national scope of the big-picture Court problem presented in this book. The U.S. Senate Judiciary Committee, subcommittee on judicial oversight report — the pinnacle of judge oversight in America — is covered in Chapter 8. The lack of criminal prosecution of judges for crimes is but a finger on the body corpus.

51 Judge Reginald A. Richardson, a Miami-Dade County civil court judge. 52

Judge Stephen Lile of the Oklahoma Court of Criminal Appeals was investigated by reporters from the Tulsa World newspaper (2004), resulting in charges.

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CHAPTER

REPORTING PROBLEMS, DELAYS AND AVOIDANCE

2

Textbook reporting about crimes by judges53 swirls the discussion into the context of judicial immunity, and whether or not it applies. The subject matter of judicial immunity is a later topic, but the absence of a transparent and public venue for reporting a list of judge crimes (who and how often) as they occur, means there are only non-governmental activist websites for this kind of information. Courts distinguish and haggle over whether there has to be a criminal conviction before taking disciplinary action against a fellow judge. Yet members of the public certainly find their names printed and broadcast before investigation and trial. The ethics of judicial behavior is so amorphous that the crimes of judges are allowed to escape detection and discipline. It appears that even when discipline occurs, it is never as severe as it is for ordinary citizens. So arguably, without adequate deterrents and reporting, the Court’s soft treatment works to encourage bad judicial behavior. This academic treatment avoids a clear public record of the extent of the problems. It measures smoke rather than putting out the fire. The hit or miss case reporting (often without official case citations) is not oversight. Finding examples in news stories and anecdotes from private citizens and attorneys may be the best evidence at this stage — these cases are hidden and ill-reported, so the touch-n-go narratives are illustrative only that such crimes exist, and may be widescale or not. Bless the press. We don’t always agree, (I suffered myself from muckraking reporting) but without independent investigative journalism, the nation would think all judges are saints. The lack of official reporting and public data on judges who commit crimes means no one can say how widespread the problems are, and if there are correlations or just the ordinary human-range of criminal behaviors. Courts are undoubtedly embarrassed to have criminal cases decided by judges who are (or should be) convicted criminals. So information about this kind of problem is handled administratively, in-house, and without publicity if possible. So most reports of criminal activity of judges comes from court-users, outsiders and media. The following crime list with examples is compiled from reports about criminal activities of judges (with varying outcomes.) Many more anecdotal reports have been received, but without an ability to corroborate information because judge discipline is secret. So the list is by no means complete, and institutional keepers of court data/records do not routinely compile or report.

ASSAULT AND BATTERY A judge ordered police to forcibly bring a public defender into his court. This attorney was schedule in two courtrooms at the same time, and was appearing in the other courtroom in the same courthouse. The judge was so angry that he specifically instructed police to use excessive force when they seized and brought the attorney to court. The attorney ended up seriously injured from being dragged down the stairs and shoved severely enough to be hospitalized. He sued, but it was found that the judge acted with bad faith or malice, but was covered by immunity from civil suit. Justice Stevens wrote a strong dissent that ordering police officers to commit battery is not a normal judicial function.54 One judge was so offended by a defendant’s manner of dress in his courtroom that he grabbed the man by his tee shirt and tore it off at the sleeve because it contained a pack of cigarettes.55 There are multiple reports of judges ordering bailiffs to grab people and bring them into court, or grab them in court and remove them out of court.

BRIBERY (including extortion, soliciting and accepting bribes, but not improper influence, obstruction of justice, money laundering, wrongful annual ethics reporting, and income tax evasion) Here’s a sampling of cases where hard currency and tangible goods were exchanged for a winning court order. One county judge was convicted of soliciting $31,000 cash from two attorneys in exchange for putting their cases on his docket and allowing them unfettered access to him. Frieda Hanimov wore a wire into the chambers New York State

53

The two established bibles of judicial conduct are reported in footnote 2 of this chapter.

54

Mireles v Waco, 502 U.S. 9, 112 S. Ct. (1991).

55

Letter to Hodnett, Arkansas Judicial Discipline and Disability Comm’n (Nov. 24, 1992).

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Supreme Court Matrimonial Justice Gerald P. Garson, in order to collect enough evidence to convince the FBI to install an overhead video cam. The camera recorded the judge receiving hundreds of cash bribes and gifts from lawyers. Although in office only five years, he routinely rigged cases and steered appointments to special experts in exchange for money, trips, dinners, and even cigars. Over a hundred complaints were filed challenging his orders after his arrest.56 A court officer was also convicted of steering cases to Judge Garson in exchange for money and electronic equipment. There are countless stories of judges who extort campaign contributions from attorneys. Judge Thomas J. Maloney of Cook County Illinois in 1990 was convicted of taking bribes to fix four murder cases in a mob crime organization conspiracy that lasted years. Because of the judge’s record, hundreds, maybe thousands of cases would have had to be started over from scratch, estimated Locke Bowman, Director of the MacArthur Justice Center at the University of Chicago School of Law.57

THE ISSUE (of judges who take money) ducks the label of influence peddling or from unreported receiving outside money Some judges accept gifts but don’t call them bribes or ‘influence.’ They also file omissive and redacted reports of gifts, investments, income and trips. They leave off the names of sponsors and payors. This includes state and federal appeal judges, for example where 111 out of 225 judges engaged in the practice of redacting or withholding mandatory financial disclosure form, and what reporters in 2014 concluded were at least 26 violations of law58 where judges sat and ruled on cases where they had a financial interest. The U.S. Administrative Office of the Courts (David Sellers, Spokesman) said the reporting omissions are a matter of ‘public safety’ for the judges and their families.59 Judges have found it convenient to avoid establishing a hard and fast ethics rule on outside money. This handling ducks the general question of whether or not gifts and outside income are an improper influence or bribe. A lack of uniform policy about judges receiving money above their salaries means each episode receives a private individual handling. Uneven (and unpublished) pronouncements on this topic sometimes allow extra money for teaching, (but not when the judge is in a divorce proceeding) and from speaking, writing, advising. These outside activities often come with travel costs, gifts, vacations, housing, meals and other fun incentives.60 These are not insignificant amounts.

California Attorney Richard Fine complained about hundreds of millions of dollars paid to area judges as ‘extra’ paychecks, expenses, and perks from the county, that added approximately $55,000 a year to each judge’s income for more than a decade, bringing some Southern California district court judge salaries to over a quarter million dollar a year. The money resulted in a long-time pattern of favorable rulings in county land and development and other environmentalimpact court cases. Leslie Dutton, cable television show host, exposed over three-hundred million ($300,000,000) in Los Angeles county payments to Los Angeles Superior Court judges as extra income. Later county officials claimed they were unaware it was illegal,61 and they began to lobbying to keep the money. None was ever returned to taxpayers. Fine spent 18 months in solitary confinement for contempt of court. (Fine and other judicial punishment/contempt arrest cases are in later chapters.) Other cases indicate it is not unusual for high-ranking judges double or triple their judge salaries through outside income and favors.

56

Story from the New York Times, October 12, 2004. This judge was the focus of efforts by the National Coalition of Family Justice in supporting the whistleblower.

57

For a summary of organized crime-judge corruption, see www.tulanelink/Maloney_051.htm

58

Post Watergate Ethics in Government Act of 1978, with 1998 Congressional exceptions.

59

Reity O’Brien, Kytja Weir, Chris Young, Information on judges’ disclosures often blacked out; redacted information includes gifts, investments and income, Center for Public Integrity, http://www.publicintegrityorg/print/14634

60

See summary and discussion by American Association of Women, Leslie Dutton Full Disclosure Network online at www.fulldisclosure.net

61

Id, (fn. 60) # 615-1February 12, 2014 and #614-1 March 4, 2014

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CHAPTER

DWI (DRINKING WHILE INTOXICATED)

2

District court judges notorious for harsh DWI sentencing have received light reprimands or nominal suspensions for their own drunken driving offenses.62 One Texas district court judge had all his charges for DWI, running a red light, and driving on the wrong side of the road, dropped by a visiting judge, who took over the case three years after the judge issued a public apology for his behavior. The visiting judge got rid of the charges by disqualifying the prosecutors (Hildago County prosecutors), and the charges evaporated.63 Neat and tidy. Inside this trick is another pattern of judicial operation — the use of visiting judges to come into a case to handle the case or some inconvenient detail in the case. I have heard several stories about assigned judges who allow visiting ‘brothers’ to sit on the bench in sensitive cases. One state Supreme Court judge took vacation time from the Supreme Court to travel across state to become a superior court judge. That was another inconvenient case involving abuse by a classmate. In my divorce case I filed for a visiting judge, and was called a joke, with my motion ignored. In any event, visiting judges are a red warning flag.

HIT AND RUN A Washington state Supreme Court judge apologized and promised to seek a professional evaluation of her alcohol use, after her silver Mercedes hit a parked truck and she fled the scene. Understandably, since she blew a blood-alcohol level three times the state legal limit.64

DRIVING WITH A SUSPENDED LICENSE As if he didn’t have problems enough, a County Creek district judge was under investigation for improper conduct and sex acts in court, he was ticketed the next week for driving with a suspended license when he was stopped for a broken taillight and his car insurance had lapsed.65

STALKING AND HARASSMENT New York’s highest ranking judge, infatuated with a woman defendant, initiated dating and an affair with her wile her divorce case was pending. After winning the case, she tried to break of her relationship. The judge stalked, harassed, and threatened to kill her if she left him. He was arrested and under a plea bargain, served time in federal prison for the charge of extortion for what he described as a multifaceted plot to terrify his former lover.66 The relative terms of the plea bargain are what deserve scrutiny for potential favorable treatment based on status.

SHOPLIFTING Upon being observed shop lifting, a Boca Raton Florida judge ran from the security guards. He was restrained and handcuffed before they found out he was a judge. He claimed depression caused his lapse in judgment. He stole a VCR remote control from Target.67 The depression was from his kids’ low grades, sleeplessness, a feeling of low self-esteem and because it was day his father had died (anniversary, not the actual death.) His punishment included attending a shoplifters awareness program and stepping down, but he continued to practice law.

62

For example, see the Seattle Associated Press story about Washington State Supreme Court Justice Bobbe Bridge, March 2, 2003.

63

Visiting judge Daniel Robles of Brownsville effectively tossed all charges against State District Court Judge Rudy Delgado, when he disqualified the Hidalgo District Attorney’s Office. The District Attorney planned to appeal. Jan. 26, 2005.

64

Judge Bobbe Bridge, supra.

65

See Judge Donald Thompson, supra.

66

Judge Sal Wachtler, supra.

67

Inquiry re Concerning Judge Garrett, 613 So.2d 463, (Fla. 1993). See also The Committee to Expose Dishonest and Incompetent Judges, Attorneys and Public Officials, www.noethics.net/news/index.pho?option=com_content&view=article&id=

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BURGLARY One of the ex wives members related how she found out who burglarized her home during her divorce from a state court judge. Ten years later, a local deputy responded to her home on an unrelated incident. He narrated the following story over a cup of coffee. He was jovial and familiar and seemed to consider the incident not a crime, but a lark.

AFFIDAVIT OF A JUDGE’S FORMER WIFE Recently I needed a police officer and the officer who responded was very friendly and asked if he could come in. After I gave him a cup of coffee, he told me about the last time he was there [at my home]. He said ten years ago, he and a couple of other officers helped my husband, “The Judge” break and enter my home during our divorce. I had recently moved when my new home was robbed. At the time, I called the police, who came out and took a report but never found anything. They said they were working on the case, but never recovered anything. Ten years later, this police officer is laughing when he tells me how he and my husband did it. [The police officer said he used a saw and drill to cut the dead-bolt on her front door.] Sometimes, it is possible to interest an investigative reporter in this type of allegation, but that is rare. Even if interested, the focus tends to be not on the disparate handling that judges receive. The focus becomes some sensational personal or sexual aspect of the whistleblower in the case. Television entertains — so media stories focus on sensational aspects, but TV (and print news publishers) often bends to the pressure of the Courts to avoid putting any judge in the media spotlight.68

THEFT The legal system often avoids using the word ‘theft’ when talking about a judge who takes another’s money for his own. It is probably called ‘misappropriation.’ Or ‘misuse.’ And it can be handled as a civil or ministerial problem, rather than a criminal one. This is done by a ruling that the offending judge has no judicial immunity. Then he can be sued and ordered to repay the stolen money. Except if a judge proves his was an ‘honest’ error in judgment. Whatever the rationale might be, the wording in these types of cases quickly becomes obtuse and convoluted, so it is difficult to get a clear-cut charge of theft in a case where the defendant is a judge.

FRAUD A former Leon County judge was convicted of federal charges for fraud and grand theft for stealing $180,000 from an account he managed for a Florida woman.69 See also the handling of New Hampshire’s Judge Douglas Fairbanks, who stole trust account amounts reported between $10 and $13 million, while a district court judge.

TAX EVASION A Jefferson County Arizona circuit judge was found guilty of felony tax evasion. He was given a three year suspended sentence and no fine, but he had to pay the court costs.70

MONEY LAUNDERING — FOR AN ANONYMOUS CLIENT This is a new thought for me, but 60 Minutes aired a show of hidden camera interviews of an investigation by The Globe Witness Group (a public advocacy group in the developing world known for exposing blood diamonds.) The Group went 68

I need to qualify this general statement — some TV and AP news teams have not only been diligent, but serious about their presentation of judicial abuses. What comes to mind is the Albuquerque Channel 5 ‘I-team’ investigative reporters, and Associated Press reporter Katherine Webster, Concord, NH. They are not the news norm.

69

Judge Hal Saxton McClanna, Jr. as reported in the Tallahassee Democrat.

70 Id.

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Chapter Two — Bad Behavior and Ethics Tricks

2

undercover to see how many of sixteen New York attorneys (including the president of the ABA and his partner) would take an anonymous client who wanted to hide and spend hundreds of millions of dollars in dark money. The attorneys were told the money was that of an African Country (unnamed) Minister of Finance, who acquired the money from arranging mineral contracts. He wanted to anonymously buy a house, a plane and a yacht. The attorneys on camera called ‘it’ all kinds of names, including honest graft, bribes, dirty money, but only one, Attorney Jeffrey Herman declined the case and he cited the Foreign Corrupt Practices Act.71 The other lawyers not only considered it, but outlined a myriad of ways to launder the millions. Their ideas included forming a series of corporations, off shore accounts, and using money managers from small firms to avoid crimes quote unquote. One noted that his client trust account already received straw man deposits. If we are aware a crime has been committed, we need to report it” said one. He already had been told where the money came from — so his statement seemed more like a veiled instruction on how to proceed, rather than declining the case. “Why continue the conversation?” asked the 60 Minutes reporter. The ABA president later claimed he only discussed information that could be found on the internet, (so it was not lawyer advice?) Overall the lawyers laid out a myriad of ways they could help the imaginary minister do his laundry. An ethics professor72 interviewed about the sting first noted the lawyer duty of client confidentiality. But this sting would have avoided bar ethics regulation, because everything about it was imaginary — the client and the money. “I find it regrettable, but not inconsistent with his lawyer duties.” Others judged it bad behavior, but not illegal. One lawyer, in an uncommon display of honesty, boasted “[T]hey don’t send the lawyers to jail because we run the country — a privileged class in the country. We make the law and we do so in a way that is advantageous to the lawyers.” U.S. Senator Carl Levitt said bills to force corporations to name the true owner never make out of his Senate committee because of strong ABA opposition to corporate regulation.

INCEST/KIDDIE PORN Local authorities, including the county attorney, prosecutors, police and the state’s attorney will seal criminal complaints about judges and ol’ boys for years, claiming the scandalous allegations, are under investigation (including the judge’s own children.) “Under investigation” is a euphemism for we don’t have to tell you anything. The evidence is deep-six’d in a never-ending criminal investigation. Judges and Insiders stay protected from what would be felony criminal charges and prosecution for anyone else. One case involved a New Hampshire district court judge alleged to have sexually molested his pre-pubescent daughter. She is now an adult. Prosecutors, police, and the district attorney have said for over a decade that they can’t discuss the case, even with Mom, because it is under investigation. With passing time and a lagging or non-existent investigation, evidence gets lost, important statements (including statements of the accused) never get written. Eventually the file conveniently gets lost or erased. Another case involved a very powerful New Hampshire insider attorney, who was pandering on-line in child porn — a felony.73 His estranged wife surrendered her young son’s bedroom computer to investigators, where the soon-to-be ex had downloaded tens of thousands of pieces of child porn. Police removed the hard drive and sealed the case. No charges were ever filed. However, in the same state, same time, detectives (posing as a 12 year old boy in an internet chat room) quickly raided, arrested, and jailed without bond, an out-of-state Child and Family Services officer for possession and dissemination of porn photos.74 By way of comparison, ordinary people who download child porn go to federal prison. They are subject to one to three years for downloading pictures (real or cyber-people) onto a computer (for possession of child porn), while 71

Sixty Minutes, Anonymous Inc., Season 48, Episode 19, January 31, 2016.

72

Professor William Simon of Columbia School of Law.

73

By way of another comparison, a similar circumstance in the same region and same approximate time-frame — a former Executive Director of a Boys & Girls Club in Amherst NH, was found guilty of possession of child pornography, (with no distribution or inappropriate contact.) He was sentenced to 5 years probation. See Boston Globe, January 14, 2005. Ordinary citizens may receive enhanced sentences of 10 years or more.

74

Although New Hampshire law enforcement officers were pro-active in the sting of an out-of-stater, (M. Pridemore of Marin County Ct. on 1-27-05) they painfully appeared to avoid similar treatment for the high-ranking in-state attorney.

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making pictures accessible to minors counts as a second, more serious charge. Recent sentencing for downloading child porn ranges from one to three years,75 and carries a lifetime label of sex offender.76 Other child porn convictions range up to ten years, and include sexual offender treatment. Each of the preferred treatment cases involving a judge or Ol’Boy as perpetrator became a pending New Hampshire investigation without closure. It is a form of professional courtesy. After the district attorney took the victim statements and collected all the evidence, the cases got sealed. Gag orders go into effect almost automatically, and then — nothing. Prosecutors neither move ahead, nor close the case. Powerful court insiders are protected up and down the chain of criminal justice. For decades. Forever.

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23

IMPROPER INFLUENCE A top ranking judge attempted to influence the decision about which judges would be appointed to hear his divorce appeal. When caught, he made a deal with the state attorney general to resign from the court in exchange for no criminal indictment. The irony of judges who tout they are tough on crime, but, if caught, will use all the available tools, including judicial immunity and plea deals to avoid the court treatment used against ordinary citizens. Lack of effective correction, even if/when the judge’s criminal activity gets addressed

The court ducks responsibility for the defective and biased case outcomes, by refusing to review or re-open cases. Even in cases of proven bribery, as an institution, courts evade seeing and reporting, and then correcting the individual wrongs caused by systematic judge-criminals. For example, in the New York bribery cases of Judge Gerald Garson, there may be a collective ah-ha! for each of the 100 victims in cases where Garson was bribed77 to let one side win in a divorce. (Often the bribe was for an award of child custody.) But each victim was required to prove directly that her case was connected to extortion, or it would not be re-opened. Judge Jacqueline W. Silbermann, New York’s administrative chief for matrimonial cases, looked over 30 of the 100 cases in question, but agreed to hold a new hearing on the re-opening issue for only three cases. Of those three, one went to hearing; another was settled and sealed; and the last is in limbo, as the client had trouble paying for a new lawyer in the re-opening hearing. 100 cases were confirmed where the judge was paid a bribe. The corrective judge ordered a 1% re-trial rate for the losing party/victims in those cases. Re-trial was based on an insufficient ‘sampling’; which shifted the burden of proof to the victims; the criteria was unreasonable; and the victim’s cost for a new trial was prohibitive. If you lost custody of your child because of a judge bribe, would this be persuasive proof of justice?

CATCH ME IF YOU CAN For New York’s Garson cases and Illinois’ Maloney Cases, the number of highly suspect cases resulted in very few rehearings allowed. The court’s determinations about whether or not the parties warranted a new trial was a flawed and 75

In 2003, Postal Inspection Services made 310 child porn arrests with 283 convictions. The Des Moines Register printed a four-part series about child porn convictions by columnist Marc Hansen, Jan. 16, 2005.

76

A few examples of people who also possessed child porn, only they, unlike judges and powerful insiders, were charged and convicted and served time for the same offense include: Rev Richard Poster, former director of the Roman Catholic Diocese of Davenport, Iowa — sentenced to one year for downloading child porn in 2004; Leslie Ulric Beal, custodian at Marshall County Elementary School, sentenced to two years for possessing mail order videos of child porn; Dieter C. Gensch of West Des Moines, who was sentenced to 27 months in federal prison for possession of child porn; Gerald Leroy Vick II of Stanwood Iowa, who was sentenced to 33 months in federal prison for possession of child porn; and Ronald Dean Meyer, Oelwin, Iowa, who was sentenced to 3 years in federal prison for possession of videotapes with child porn.

77

Cash and other bribes were tendered by lawyers to court employee Nissam Ellmann. In this case, the attorney was Paul Siminovsky.

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CHAPTER

biased decision process. These are cases that determined child custody, support and division of assets. If the judge was proven to have thrown 100 case outcomes for money and bribes, what are the chances the litigants got a fair and impartial hearing? I’d propose it was zero.

2

The legal system routinely shifts its own state burden over to the victims for cases involving allegations of judicial corruption — making lay victims prove that a proven-and convicted corrupted judge spoliated their case handling. Not only were the victims required to pay the legal fees and costs of hearings when they tried to re-open their cases, but the victims had to come up with money for a new-trial. Why were the parties making bribes not ordered to pay all the victim’s costs and the original verdicts vacated? I don’t understand why it is not a financial priority for the bar and judges to provide free lawyers to reopen and judges to rehear these apparently corrupted cases? Remember the Trust coin? The flip side of institutional trust is responsibility for non-corrupt trials.

EVEN AFTER THE JUDGE WAS FILMED BY THE FBI ACCEPTING BRIBES IN HUNDREDS OF CASES78 And in order to find proof, 100 people were supposed to become private investigators to find and submit proof that Judge Garson and the opposing attorneys, (and their experts), were corrupt in their particular case(s)? What’s wrong with this picture? This burden-shifting treatment permitted the court to avoid its Constitutional responsibility to conduct only fair and impartial trials, and it charged the costs and expenses to the victims, not the criminals! All the spouses and attorneys and other people both paying and receiving the bribes? What happened to them? And to the children that were the focus of all this bribing? Few litigants are as feisty, brave and determined as Frida Hanimov of New York, who not only wore the wire under her clothes, but also organized and followed Judge Garson’s prosecution through his trial, to assure his actions weren’t minimalized and covered up. Yet afterwards, the whole process was an extension of the rape of justice in the trial court. A failed system that further victimizes the victims. One wife whose ex-husband pled guilty to bribing Judge Garson, felt the new judge’s reliance on old experts and rulings meant there was no way to substantially change the outcome, even under a new judge. She expected a de novo trial, which would have meant starting over fresh from the beginning. She found that the second trial was not de novo, but was saddled with tainted rulings and testimony from the first judge. Isn’t that just common sense? Apparently not. I also have encountered the replacement-judge refusal to re-do tainted rulings (remember the FOF’s and ROL’s?) — which, as Frida concluded, precludes the possibility of a fair result on a do-over. It’s working off a stacked deck. If the wine has turned, it won’t help the taste by just skimming off and throwing away the top.

Almost always, this kind of tainted case is not even re-heard, even if a judge is convicted of a crime in the case management, such as bribery. Cases that have gone all the way to the United States Supreme Court on the right to a new hearing when the judge is corrupted, and found that each litigant had to prove definitive corruption in each instance, before a new trial would be granted. The court denies re-hearing as a home-team advantage, while taking advantage of the innocent parties/victims — it requires the public to gather evidence when they believe the judge is corrupt. That is an unfair burden and an improper shifted state responsibility. Given the respective resources of the two sides, “it is too high a bar for people who don’t have access to subpoena powers or wiretaps”, said law professor Locke Bowman, University of Chicago Law School. I say it is too high a burden for people who don’t have the State’s unlimited government-paid legal

78

$9,000 was the bribe elicited for an court decision allowing one mom to keep custody of her child; other bribes reportedly ranged as low as $1,000 cash plus an expensive box of cigars. Daily News reporter Barbara Ross, Bribe-taking judge Gerald Garson gets of jail early, August 20, 2009. See http:www.dailynews.com/news/crime/bribe-taking-judge-geral…

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resources, plus an inherent moral duty to effectively police their own Club members. The presumptive burden should be placed on the Court system — not on the victims. The agonizing paradox of the Court is their own moral dilemma — a litigant’s basic right to a fair and neutral court process, weighed against the cost to the court — an inefficient retrying of those 100 corrupted cases, and doing it in a manner that insures a fair process, i.e., de novo. The top New York judge made a tidy decision that has a long-term impact on public trust of judges and the court process. She took the easy path to favor those at the top. But justice is legitimate when the judge favors those at the bottom. Think of it as a car part — a defectively designed car that affects the safety of all who ride in that car. So the judge looks at 100 cars, and finds a defect in each one, then tells the 100 buyers to each to go investigate and prove not only their individual defect but that the defect actually caused harm to each and every one of them. In Garson’s FBI bribery cases, people lost custody of their children and had illegitimate property division and support orders. And a few (3 of the 100) were told, go investigate and then retry your case, but you can’t start fresh. You have to use the old defective parts, and then you have to pay for this whole second trial investigation and process. A Similar Problem Developed in the FBI Crime Lab, where since the JFK assassination, FBI investigators have been successfully testifying for the prosecution in criminal cases about lead bullet analysis. They helped convict tens of thousands of defendants, including testifying at trial as expert scientists about bullet composition analysis. The whole lab-testing thing was a sham without scientific merit. Thousands of convictions (guesstimates as high as 50,000 cases) and not once was the expert telling the truth about the state of this junk science. Not even a handful of those convicted prisoners even got notified about the junk-science scam, much less got new trials. Most prisoners were not even told about the scandal by the FBI or prosecutors when the FBI Director and Lab Director blew the lid on this bogus-expertscience field. 20/20 television show ran an enlightening expose.

CORRUPT JUDGES PAYING FINANCIAL RESTITUTION AND DAMAGES PERSONALLY? FOR NOW, FORGET ABOUT IT. Essentially non-existent, judges are granted insider immunity for almost everything they do. But even in a long shot — if a judge should be required to recompense a victim for the economic damage suffered — the order will only be for payment of the funds embezzled or stolen, but never for the double sets of attorney fees and litigation costs, or for the lost opportunity costs that corrupted rulings cause to the parties. The economic consequences to an innocent victim are often staggering and may deprive the innocent party of children, support, assets, home, business. The corrupted rulings represent financial disasters for the victims, and all because the opposing side bribed the judge. This warrants national examination as a potential deterrent. Bar Restitution Funds. Some bar associations assess all lawyers for funds to repay restitution to victims of judges and attorneys who commit crimes, but these payments are small, limited, inadequate and merely a percentage of funds stolen. They do not provide restitution for neglectful supervision; for economic harm from corrupted financial orders; for investigative costs of trying to prove the judge is crooked; for repeat trials; for duplicative attorney fees; or for other economic harm experienced by a judge’s victims. The lawyer-fund solution also passes the buck to attorneys — not to judges or the courts — to pay for wrongs created by bad judges. There is no financial institutional incentive for judges to police their own more competently. Those already funded to watch the henhouse should be paying also for negligent supervision costs and damages.

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24 JUDGES WHO LIE

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2

79

The whole issue of judicial ethics and how the court handles lying and felonious judges demonstrates the great disparity in how judges treat themselves (insiders) and how they treat the rest of the population. It occurs affirmatively and by omission or concealment, and is a topic referenced throughout this book. One element judges use to defend their own lying is the quibble about what is a lie?

HERE’S MY GO-TO WEBSTER’S NEW INTERNATIONAL AMERICAN DICTIONARY UNABRIDGED80 DEFINITION: Lie: (1) a falsehood uttered or acted for the purpose of deception; (2) an intentional statement of an untruth designed to mislead another; (3) implies strong moral censure and charge or intention to affect wrongfully the acts, opinions, or affections of another; (4) to utter, tell, act or create a false or misleading impression; (5) to convey an untruth; (6) to affect in a specific way by lying. Perjury: false swearing in and out of court under oath or vow, by what is untruth or by omission, to do what has been promised at law. In common law, willful false statement of fact material to the issue. In some jurisdictions U.S.R.S. § 5392 U.S. C. Title 18 §231 applies to all cases of willful false statements made under oath of authority admitted by law [whether or not in court or a judicial proceeding]. The element of evasive answering in court is worthy of mention here — In one case where the witness gave a nonresponsive answer to evade the truth, The Question on review was — is it perjury, if under oath, the answer is literally true but not responsive and arguably misleading by negative implication? I call this kind of evasive answer — “the cheating husband answer.” Wife asks: Have you and my best friend been cheating on me? Husband answers: What? Do you think I’m crazy? The answer doesn’t deny cheating, but evades the point and distinction that he may be cheating with someone other than the best friend. In passing, it also disparages the wife’s intuition and knowledge. The Bronson case was a bankruptcy case involving examination of the man’s assets. Question: Do you have any bank accounts in Swiss banks? Answer: No. Question: Have you ever? Answer: The company had an account there for about six months. Bronson had a personal account for five years previously, but answered for his company, not for himself. It was a partial answer. It was a wandering answer. It was evasive. It covered over what the court wanted to know.

79

Bronston v. United States, 409 U.S. 352, 353 (1973).

80

G&C Merriman Co., (1950); unless otherwise stated, all definitions are from this great bible of dictionaries.

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BUT WAS IT PERJURY? The lower court found it was perjury, the court of appeals affirmed, but the U.S. Supreme Court found that if a witness gives a non-responsive answer, it is the cross-examiner’s responsibility to ask a follow up question. So it’s not perjury? The 11 judge panel of the U.S. Circuit Court of Appeals was so conflicted in discussion over what this is — Is it a crime? Is it good lawyering? How evasive does the answer have to be and still be truthful? Or can it be obstruction of justice? Here’s some of their exchange: Judge Fletcher noted the prevalence of wandering answers in civil discovery and commented, “half the bar and maybe all of the bar is in big trouble.” One asked if it could be felony obstruction of justice? Judge Jacqueline H. Nguyen asked Assistant U.S. Attorney Merry Jean Chan if an evasive answer could be ‘cured’ if the respondent later gave a direct answer? “Cure is a different word than I would use,” said Chan. Did you just give an evasive answer? asked Judge N. Randy Smith. Chief Judge Alex Kozoniski warned: “The U.S. Attorney is watching.” Do you have a follow-up question to clarify the answer?” I leave readers with this non-responsive answer, but we deal more definitively with the issue of judge lying later, as well as how the Court Branch deals with attorneys who file ethics reports about judges who lie.

PROSECUTION OF JUDGES When judges commit criminal acts, what happens at law? Do they suffer the same consequences as ordinary citizens? Sentencing and actual time served are included as topics in a Chapter Seven section about the most famous card in the Monopoly Game — the get-out-of-jail-free card. In the meantime, a hint is to check if judge punishment is highly lenient, compared to how ordinary people are charged, tried, plead out, sentenced and paroled.81 This goes to the functional organization of this very important group in our society. Whether or not a public-body works effectively and fairly — carries implications about who we are as a nation? Not what we say we are — or what our Constitution says we are, but — as a country with a unique social and political belief (espousing basic rights for all) — whether our beliefs somehow have been manipulated away by a secret group with identifiable pathologies? If so, how does that affect the rest of us? Does it affect national norms? The daily administration of justice? The signs are here — the percentage of American citizens with criminal status, the number of court cases appealed, the expense of what is passed off as justice, the growth of a caste system in courts, and case-by-case examples of abuse of judge authority — all suggest the development of a serious group problem that warrants national investigation and action. Unfortunately the internal discipline of judges is similar to the discipline of pedophile priests — it’s a kept secret. The process and outcomes of complaints filed with state Judicial Conduct Committees, becomes focused and relevant when readers compare how courts handle attorney discipline (severe) compared to how they handle judge discipline (lenient). (Remember, disciplinary cases are completely separate and apart from criminal prosecution.) The preferred method of dealing with insider judges is focused on protecting the offending judge and the other judges from public exposure and scrutiny. As opposed to the preferred attorney discipline focus is to punish criticism and control dissent. If attorney discipline is retaliatory, the ethics disciplinary process can invent a crime-face to make the internal process appear more legal and appropriate.) Prosecution of a judge for crime is a two-level area of scrutiny. Almost none is public. The law enforcement community is responsible in the first instance for catching, charging and investigating law breakers — whether illegal immigrants or stalwart judges. Despite some citations in this book, (which suggest sometimes judges are caught and charged by law enforcement) it rarely happens. Surely it is with trepidation that a law enforcement officer doesn’t just release a judge with a warning, or a chief of police doesn’t erase arrest or complaint information from the state criminal charging data 81

For example, bribe-taking Judge Gerald Garson did get sentenced, and served time, but the Parole Board, “in a rare show of leniency,” granted him early parole before his minimum sentence was served.

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base — because arrest of a judge carries potential career-threatening implication for officers who appear in court. Failing to provide a favor to a person with great power means there will be no reciprocal favor owed. Both sides of this equation spend a considerable amount of time in court, trying cases. Arrest of a judge can be a career-altering occasion.

2

Statistics of any kind about the number of judges charged with crimes each year are simply not included in any intelligible way in annual state court summaries or police logs. Criminal cases involving judges as defendants are not sorted. Outcomes are not widely reported in the press. From the Boston Globe to the Washington Post, I discovered first hand that senior editors routinely scratch reporter stories about judicial abuse (including individual judges and group patterns) unless there is so large a public outcry that National Public Radio carries it live daily. But it may show up in the Huffington Post.

MEDIA REPORTING It is difficult to find reporters to write about these cases. I praise several reporters in this book for persistent pursuit and reporting in particular cases. We were not friends. But I found they were each willing to study the issues and stick their necks out to write and report stories when warranted. Some like Sheryl Atkisson were fired. Unlike most papers, these women reporters didn’t trivialize or sensationalize the story or portray court victims as a joke. Sometimes, I was told the senior editor or publisher pulled their stories.82 Other reporters experience this media blackout. Those who get press coverage find the story slanted into a saucy, titillating entertainment story belittling the victim — rather than an exposé of the judge. Maybe law is boring. Maybe they don’t understand it. Maybe they are afraid. Editorial decisions to avoid reporting on judges are top-down decisions. I spoke to senior editors of state and national newspapers (providing welldocumented materials and press releases) and found it hard to get through the negative smear campaigns generated to counteract my reporting. I was largely ridiculed and portrayed as a fire-breathing female dragon. The Boston Globe occasionally carried New Hampshire judge articles — but they appeared in Massachusetts (not the New Hampshire editions.) I was determined to write about judge abuses I found shocking (largely because I was betrayed by a judge system I formerly held in great regard. For several years, I also felt like I was the only person in America who noticed.) Judge abuse was virtually ignored by law writers and publishers. I now check public news accounts to see if suspended judges stay on payroll, collect benefits, and keep their attorney-law licenses. Generally, yes, they do.83 The Court is forgiving and lenient about judge misbehavior, but might ‘rotate’ the judge to a distant court. Geographic purification? Is that like second-hand virginity?

CIVIL ACTS AND PRIVATE LAWSUITS Various remedies to correct manipulated case outcomes. As I floundered around, asking dozens of attorneys about remedies and relief from abusive judging, I found others in the same boat,84 looking for local, state and federal ways to restore justice — especially those who were economically and professionally devastated by judge rulings targeting them.85 Suing the judge in a private lawsuit has many caveats, from potential loss of assets (home, business, professional income) to personal threats designed to make you fear for life. Sometimes people want to sue the judge for shenanigans in court. Others in particular want to sue a judge for slander or libel because of words the judge used in court — especially when the judge accused them of criminal acts or of lying during trial or other misalignments. Some people want to sue

82

For examples, see Sheryl Atkisson, My Fight For the Truth Against the Forces of Obstruction, Intimidation and Harassment in Obama’s Washington, Harper (2014); also Bernard Goldberg, Bias, A CBS Insider Exposes How the Media Distort the News, Regnery Publishing/Eagle Publishing, Washington D.C. (2002).

83

For example, when Justice Stephen Thayer negotiated with the State AG for the dismissal of felony indictment charges, he also somehow kept his law license, a different branch and jurisdiction under the court/bar.

84

There are several attorney reformer groups and whistleblower groups nationwide. One group of lawyers seeking national accountability laws for judges is the National Judicial Conduct and Disability Law Project in Chicago, but they do not handle individual cases. For a list, contact new Acorn8 (Attorney Michael McCray) and the National Whistleblower Summit, which convenes annually in Washington D.C.

85

Dozens of attorneys and litigants attended and testified in 2005 in Longworth in the U.S. Congress building at a caucus exploring techniques to stem judicial corruption in U.S. Courts.

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a judge (or the judge’s spouse)– for what he or she did outside of court. Vagrancies that cause others to want to sue include judges who run up debts, default on contracts, usurp boundary lines, bodily threaten others, cause automobile accidents, commit assault and battery, rape, and yes, lie, cheat and steal. So can you sue?

INITIAL FACTORS TO THINK ABOUT BEFORE SUING A JUDGE:

You may have to challenge the concept of judicial immunity86, depending on whether or not the bad or harmful act was in court or outside of court. Most attorneys will not take you as a client if you want to sue a judge. The tricks in this book suggest many ways people are denied a neutral forum. There are exceptions, and there are good judges who work to be fair, but the Ol’boy system is unreliable on its surface, and I wouldn’t trust the system to assign a lawsuit against a judge to a neutral judge for hearing, especially if they know each other in a small bar or state. Judges will obtain, (as a favor) free lawyers, who will work hard for them — to earn future brownie points that can be utilized in future case fees or appointments. Don’t be surprised at the viciousness and depth of the judge’s defense team in attacking you back on totally unrelated issues. All the while, you are paying your team hundreds of dollars an hour to respond to reams of motions about unrelated rubbish and counter-accusations. Litigation is personally stressful, even traumatic, and will affect your health. The standard of proof at civil trial is less than at criminal trial. In the event there is a criminal prosecution and the judge is convicted, a civil trial for damages is more likely to survive and succeed. Remember OJ Simpson. Expect a grossly uneven playing field in court. Appendix 1-B&C on Holodeck Law explains several offensive techniques you can expect to encounter in this kind of Ol’boy trial. Carefully evaluate your damages — is this a case of hurt feelings or a million dollar reputation ruined permanently? How will you prove damages? Teaching the judge a lesson so he doesn’t do it again may be a reason, but there are other avenues besides a lawsuit if that is your goal. Make a media/press plan and include it in your scheduling calendar.

25 BAD WORDS

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Judicial shouting, temper tantrums and verbal abuse may be the first sign the judge is nervous, fearful, or out of control. Bad words are an early technique judges use to send a controlling message in court.

WHAT CONSTITUTES BAD VERBAL ACTS BY A JUDGE? Fits of temper, temper tantrums and outbursts

Cursing and use of profane & offensive language Name-calling and statements made to humiliate and embarrass Sarcasm, insults and ridicule Crude, crass, degrading & disrespectful language Overly familiar, demeaning forms of address Racial or ethnic epithets Frivolous statements Making faces, rolling eyes, or body language to convey boredom, disbelief or exasperation Sexual remarks and innuendo

86

Judicial immunity is a court-invention to avoid suits and complaints against judges.

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Criticizing counsel and criticizing a lawyer in front of his client Comment or criticism of a pro se for not having a lawyer87

CHAPTER

Excessive criticism of the attorney for one side, with visible insider-gratuities to the other side, whether or not in front of a jury Patronizing comments and behavior Intimidating a party by saying a civil act is criminal, or suggesting the party is or may be criminal Suggesting a non-criminal act deserves incarceration Bringing up jail or incarceration to a party in a civil case — out of context and without provocation

2

Treating one party like a criminal or violent person, without provocation Intimidation, especially to force a party to give up rights or settle a case Walking off the bench and stalking out of the courtroom Issuing public comments, opinions and other unethical remarks in a case Over the last several decades, Judge style verbal abuse has evolved. What was clearly racial, sexist or ethnic verbal abuse of the 1970s and ’80s has now become more sophisticated and subtle, undoubtedly because of a shift in social mores in the mid 1990s, leading to feminist and minority allegations of discrimination based on race and sex. Maybe people are filing more complaints. This new style of abuse and bias also targets new groups of people — who are different from the obvious historic targets of judicial bias. People on the receiving end of a judge’s bullying recognize it for how it feels, but the more obvious bias and bullying techniques have become subtle. Early complaints about judges at all levels, were about abuses of authority that occurred in an “Archie Bunker” kind of way. Now, the same bias often exists, but is covered over with politically corrected speech, but can be discerned by tone, outcomes and analysis.88

RACIAL REMARKS Judges have been censured for calling defendants disrespectful and insulting names, (historically these were such names as nigger and honkie bitch89) openly to the parties in court. When censured, one judge claimed nigger was just a harmless metaphor. At the defendant’s sentencing hearing, he announced, I know there’s another nigger in the woodpile. Some judge tried to justify using this kind of offensive speech as the only way to get to the defendant, suggesting it is a defendant’s educational or intellectual level to be referred to as a punk,90 or a no-good rotten punk,91 or [T]he facts of life are you are a slight white male and the prisons are full of big black people . . . and the facts of life are you’ll have one in your mouth and one in your ass.92 In Alabama, a judge was removed for making a racist remark when he explained the upcoming election choice: you got a nigger running and a nigger-lover running . . . . Sometimes, judges pretend their racial remarks were made in jest: What’s the price of fish heads? to a Japanese man; What’s the price of watermelon? To a black prospective juror. 87

Remember, the best way for a judge to control a courtroom is to have a bar member with a vested self-interest representing those who otherwise might speak out or question.

88

Linguist PhD Deborah Tannen wrote several classic books about the inherent implications of language and verbal cues of domination and authority. See You Just Don’t Understand Me, Ballentine (1990).

89

In re Agresta, 64 N.Y. 2d 327, 476 N.E.2d 285 (1985).

90

In re Teschner, Unreported Order (Ill. Cts. Comm’n, August 3, 1983).

91

In re Sadofski, 98 N.J.434, 487 A2d 700 (1985).

92

See, Teschner, supra.

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This judge later excused himself by claiming his remarks about Japanese, blacks, and women were merely humorous but salty remarks, made in jest.93 Other ethnic groups routinely targeted were Cubans, if you’re so unhappy, go back where you came from,94 Arabs (an anti-Arab statement off-record to a lawyer in chambers),95 Puerto Ricans,96 Hispanics,97 and Italians. Overall, stereotypes ran rampant in court, and there was little oversight over how judges verbally abused their power in courtrooms. One judge told a black mother who had illegitimate children, 75-80% of the people I see in this courtroom are born illegitimate and black and come from welfare families, and I pay for this courtroom and the staff and I am sick of it and so is the rest of Wisconsin.98 In another case, the judge called four defendants niggers, but it was privately said in chambers. When he came back on the bench, he set bail unusually high and told his court clerk later that’s what blacks get for voting against my brother in the primary. It had been reported that blacks had overwhelmingly voted, not for the judge’s brother for governor, but for the liberal democrat. These judges were disciplined for racial or ethnic bias, (sometimes nominally so) but much still depends on whether or not the judge’s slurs are an isolated incident or a pattern of conduct, and if a complaint is made, and if court disciplinary committees later review the judge. There is usually no effort made to determine if the words are signify an internal bias or pattern, affecting the judge’s ability to rule impartially in any other case. Courts do not find racially derogatory remarks to be prima facie evidence of racism. The judge has to do it over and over again, “repeatedly and persistently” for even blatant racism to count as racism. Also, judicial conduct committees consider location important. Whether racial epithets are said on or off the bench makes a difference in insider review. If the judge name-calls, but only in chambers conferences, or only with attorneys and court personnel present, this distinction allows disciplinary committees to find that the judge’s behavior was in “poor taste and inappropriate” but not racist or prejudicial. For example, about a judge who said in court proceedings,99 Those damn Puerto Ricans aren’t getting away with this, and I’m sick and tired of you colored people coming out in my town, and If you want to take things, would you stay in your own town? and (his abbreviated version) I’m sick and tired of colored people, and (his expanded version for other ethnic groups) All the people in your program ought to be deported.

93

Gonzales v. Commission on Judicial Performance, 33 Cal.3d 359, 376, 657 P.2d 372, 381, 188 Cal Rptr. 880, 889-90, 1983.

94

In re Hanofee, Unreported Determination (N.Y. Comm’n, 1989).

95

In re Ain, Determination, N.Y. Comm’ on Judicial Conduct, (Sept 21, 1992).

96

In re Schiff, Determination, N.Y. Comm’ on Judicial Conduct, (Oct. 15, 1993); In re Complaint filed by Tejeda, No. 93-1095 (U.S. 11th Cir Judicial Council, (Oct. 18, 1993), and In re Close, No. 93-CC-2, Ill. Courts Comm’n (Jan. 27, 1994).

97

See In re Complaint Filed by Tejeda, and In re Close., supra.

98

In re Gorenstein, 147 Wis 2d 861, 873-75, 434 N.W. 2d 603, 608 (1989). The judge was suspended for two years.

99

In re Sweetland, Unreported Determination, N.Y. Comm’n (Nov. 21, 1988 at 7. When Judge Sweetland rejected a bail agreement for a Honduran exchange student. During the hearing he left the bench and was overheard on the phone with the district attorney saying “all the people in your program should be deported”. The program was a local community college program, The Central American Scholarship Program.

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It was found later by court investigators that this judge’s statements did not reflect racial or ethnic bias, as much as the judge had a “distrust and dislike of all those from outside his community.”100 This kind of rationalization minimalized the impact of racism on his orders and case outcomes. More interesting is the court’s struggle to pretend a judge’s private racial bias doesn’t really matter much (except to the defendant.)

2

Judicial review may excuse a judge who calls an attorney “a muther-fucking white liberal.”101 But these are not mere words. Rather they reflect a strong bias, which has an impact on how the case is handled, and what the outcome is. This institutional nearsightedness deflects criticism from the institution. The primary function of judges, namely making sure each party has a fair trial, however requires an unbiased judge.

STUDIES ON RACIAL BIAS Studies of the criminal justice system indicate obvious discrimination against men of color, but that defendants are not on trial as members of a race or ethnic group.102 Judicial bias and prejudice is tough to prove unless the judge manifests some outward pattern of stereotype or racial slur. Increasingly, the court educates and counsels judges not to display blatant bias, so evidence of contemporary judicial bias is more subtle. The older examples of name-calling are erased, but has the bias gone away? The same judges often are still on the bench. The same defendants are often still in prison. More and repeated kinds of studies show extreme discrimination in court handling against men of color. Black and Latino men are charged more often and with more serious charges, and they spend more time in jail than Caucasian men. One-third of all Black men in America spend time in jail, on parole, or in prison, with a disproportionate number on death row.103 The obvious adverse impact includes inadequate defense attorneys, racial bias and discrimination across the procedural board of arrest, charging, prosecution, and trial rulings. Even when a judge’s racial bias is conclusively demonstrated, not only does the judge usually escape any censure or discipline, but the fundamental harm to the defendant stands without recourse. Even if the system does decide to discipline a judge for obvious race bias, it will be with a hand-slap. Suspension is often with full pay (isn’t that called a vacation?) Nothing will happen to the judge that can in any way compare with the degree of harm caused to the target. Prison, death sentences, and loss of children, jobs, careers, reputations, financial losses — all are devastating life changing impacts, and all happen to victims of judge bias. Yet judges get excuses, private reprimands, a temporary suspension (with or without salary) and rarely — stepping down from office. Almost never is there prosecution. If a defendant is denied a fair trial and is imprisoned or sentenced to death, there is no counterweight to correct the injustice. Until the court system re-tries the case; pays compensation; pays legal fees and costs; pays retribution; and holds a judge fully accountable, the fundamental harm to victims is non-correctible. Undoubtedly there are many more court-incidents, the vast number unreported. It takes multiple filings in different venues, and seeing a complaint through to a final outcome, may require bravery and persistence.

Seeing a complaint or an appeal through in the pursuit of justice is the type of work that comes from an inquisitive and tenacious mind, fueled by justifiable anger or a sense of moral righteousness.

100 In re Sweetland, Id. 101 In re Del Rio, 400 Mich 665, 256 N.W.2d l727 (1977) where the judge was suspended without pay for 2 years. 102 Criminal justice studies and statistical data do exist, however there is not corresponding civil statistics, as those working to free those wrongly imprisoned, such as the various Innocents Projects around the country compile much of the data. These law school affiliated groups are often overworked and unfunded, and without lawyer help, so most often they decline even compelling criminal cases because of lack of resources. They also tend to maximize resources by their narrowing research and case work to specific segments, such as DNA death-penalty cases only. 103 Innocents Project report about death penalty, Benjamin N. Cardozo School of Law at Yeshiva University

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In these types of cases, the mis-handling is not just that the judge was disrespectful in name-calling someone in court.104 Parallel bias means the judges will avoid giving one side equal opportunity to speak or present testimony and evidence. Biased evidentiary pre-trial and trial rulings will favor the prosecution, fatally harming the defendant by keeping out evidence and experts. Judge orders will follow the bias. If a defendant files an ethics complaint, they are routinely dismissed as not ‘relevant’, or if ‘relevant’ the acts are not inappropriate enough to be an ethics code violation. Court discipline doesn’t understand the concept of zero tolerance for racial bias.

STUDIES ON DECISION FATIGUE Other reasons judges may render poor or bad decisions is they become mentally depleted in court, so make rulings which retain the status quo and require much less advanced thinking. Studies indicate that analyzing trade-offs are a “particularly advanced and taxing form of decision making.”105 Researchers at various universities globally106 including Case Western and Florida State have been researching a condition named “decision fatigue.” As a litigator, I recognized the amount of mental energy expended physically affects body functions, such as appetite, sex drive, will-power and self-control. It also happens among attorneys in court. But the fatigue factor for judges and others who make life-changing decisions about others, “routinely warps the judgment of everyone … no matter how rational and high-minded you try to be.” 107 The studies found a pattern, not malicious or unusual but that routinely, fatigued judges will deny parole later in the day, because: It preserves the status quo, 5. It eliminates the risk of making a wrong decision and letting someone out that isn’t a good prospect, 6. It keeps the option open for another time, 7. They are brain tired of making complicated decisions. Similarly situated prisoners have a much better chance at being granted parole if their cases are heard at 9:00 a.m. rather than at 4:30 p.m.

SEXUAL REMARKS On the touchy side, some judges receive ethics complaints about hugging, kissing, commenting on women’s breasts or clothes. One told an intern to take off your clothes and bend over. Often judges apparently intended to flatter female attorneys by calling them Honey, Darlin’, Sweetheart, and Little Girl. One called the State Attorney General and her opposing counsel as Attorney Generalette and Lawyerette.

FEMINIST HATRED With the growing awareness of domestic battering, women increasingly began to go to court in the 1990s for protection from domestic violence. Judges often handled these cases poorly and with sexist comments reflecting an internal bias. One judge warned the wife not to consult with support groups, because they are a one-sided, man-hating bunch of females, a pack of she-dogs.108 When forced to apologize, he claimed his motives were well-intentioned and his comments were not biased, because they weren’t specific as to any particular organization, but toward women in general. Court

104 The offensive judge behaviors often go back decades. For example, after 30 years, the New Hampshire Supreme Court finally disciplined Judge William H. Lyons who in 2015 was suspended for his failure to patient, diligent and courteous to litigants, “accord to every person the right to be heard according to law.” He was suspended 60 days without pay, New Hampshire Supreme Court Docket JD-2014-0001, In the Matter of William H. Lyons (2015). See also, www.unionleader.com (July 11, 2015). 105 See New York Times story by reporter John Tierney, Do You Suffer From Decision Fatigue? Aug. 17, 2011. 106 Studies by Jonathan Levav of Stanford, Shai Danziger of Ben-Gurion University, also Social Psychologist Roy F. Baumeister at Case Western and Florida State Universities. And Kathleen Vohs at the University of Minnesota. 107 Id. 108 In re Greene, 403 S.E.2d 257, North Carolina (1992).

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hostility has gone underground in the 21st Century, but most contemporary judges I see still react if women shows any hint of equality or independence. Despite bench ‘desegregation’ in the 1990s, court continues to be a patriarchal institution and women especially are expected to demonstrate deep deference.109

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RAPE VICTIMS HAD THEIR LIVES AND SEXUAL HISTORIES PUT ON TRIAL, INSTEAD OF THE RAPIST. This is a form of judicial sympathy for the accused (a man). Sometimes, judges initiated inappropriate and extensive sexual histories from the victims on the stand. Notorious stories include allegations that judges suggested that the rape victims asked for it, or should just relax and enjoy it [rape], or a victim deserved to be hit.110 One judge, reported to have said that a 14-year old rape victim should get over it. The judge later sued the Boston Herald for defamation in a series of articles with many cases reported. One statement alleged he heartlessly demeaned victims,111 and the Herald stood by the story but ended up paying anyway. Such lawsuits settlements have been the price of reporting about judges, (who retaliate by court process as pay-back and because they generally can sue for free.) Regarding domestic violence cases, a different form of sexual bias often emerges: judges categorically dislike family law matters because they are messy and emotional. Not like a nice clean business or corporate case where the people involved don’t know each other or have personal involvements. Domestic violence is probably the messy-ist of all family law cases. It is also the arena where judge’s natural gender bias emerges most blatantly. One judge advised a male defendant to watch your back; women can set you up, he warned, (he was likely oblivious to his own prejudice.) At this stage of evolvement, much of the evidence is still anecdotal. Collecting data about gender bias in courts is a slippery proposition at best. Recognizing the judge’s bias, much less proving it under the standards established by the judges, is tenuous. I believe parties know judge bias when they experience it. I still experience and often observe judge gender bias. The comment may be about my clothing (as a compliment) or ‘gentlemanly’ advice from the bench to me as a little lady, or the gender anger that causes the judge to lose his cool. Early in my career, the judge ignored my male opponent’s crude comment (he had no legal argument or factual rebuttal to my list of citations and precedent), so joked that I must be on my period. Working in small little village courts like Pittsfield, (where there were no outside people in the courtroom) seem to foster this type of male camaraderie. To his credit, the judge didn’t react (but he didn’t discipline either) and I won. Temper tantrums. During my practice, one woman judge repeatedly exhibited incivility, lack of patience and bad behavior (along with other short-comings) across several different cases. In one of my client cases (a divorce), the judge flirted and interjected objection and her own arguments on behalf of the pro-se husband, (who was tall, dark, attractive and an alleged seducer.) When I objected, she became so angry she stormed off the bench. Another hearing, we all waited 45 minutes in the courtroom (with the attractive husband still sitting in the witness stand) until a court clerk came in and told us the hearing would be re-scheduled. In the ordinary practice of law, judicial temper tantrums seem to occur about once a year — not frequently, but not uncommon. Usually after an informal unannounced recess, the judge returns, some where from 15 minutes to an hour later. Walking off the bench in a snit may be preferable to judges who throw things — usually at an attorney. It’s a way of letting the room know that the judge is angry with the attorney, often for making an objection (and record for appeal) of bad rulings or judge behaviors. One lawyer, (who made a point of asking I not identify him in this book) rose to make an objection on the record to preserve an important issue for appeal. The judge said to the attorney “don’t go there” then warned the lawyer again not to bring it up. He said the judge threw a pen at him. Another criminal defense attorney reported the judge also made a Tarzan yell as he hurled his pen across the room at the attorney’s head. The attorney then apologized profusely to the judge, but he later said privately that he felt he had a duty to his client to get it into

109 Even in 2016, I find it is still important in court to look stupid and not to hurt a judge’s feelings. Females can lose based on gender bias, but are still expected to do so … graciously. It makes court go so much smoother. 110 In re Gerald Molnar, Unreported Determination, N.Y. Comm’n (July 18, 1988). 111 See Boston Herald story on Massachusetts Superior Court Judge Ernest B Murphy, Feb. 12, 2002, and Boston Globe, Jan. 26, 2005. The Herald announced it stood behind the thorough work of its four investigative reporters. See story by Mark Jurkowitz, Boston Globe, January 26, 2005 but ended up paying an award on one statement out of the series.

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the record. (Often, these objections are ones that everyone knows are major reversible-error objections.) The attorney though that ordinarily he had good rapport with this judge. New York Judge Dora Irizarry said she was “genuinely surprised” when nominated as a federal judge, because so many complained during her Senate confirmation hearings that she was “angry, gratuitously rude, abrasive, demeaning (especially to lawyers), routinely screamed and threw things.” She insisted, “it takes a firm and tough judge to keep order in a courtroom.”112 Or she could just try a little self-control and mutual respect by following the Rule of Law. Don’t Bring It Up! When a judge says these words, it may mean the judge is aware her ruling has abrogated some fundamental or statutory right, that he/she recognizes the ruling is wrong, and the judge wants to avoid an official record. Often it is exclusion of some exculpable evidence or witness, or ignoring precedent, or the rule of law. In other words, the judge has made up her mind, is bullying by discretion, and doesn’t want any contradictory or actual law in the court record. The judge is intentionally preventing a clear court record for appeal or other purposes. So making an objection on the record is essential to preserve client’s rights, and it is the moral duty of a defense attorney. But the judge just threw something at you while yelling “No!” What do you do? In one case, I brought up binding case law, national guidelines, and precedent opinions five times, to the judge’s great frustration with me. Each time I proffered him a research packet. Finally he ordered an early lunch, then returned two hours later to summarily announce he was ruling for my position. However he was clearly unhappy with me, and made sure I lost all discretionary rulings for the rest of the trial, and trust me, they were all discretionary after that. He avoided any Rule of Law in the record. He awarded a six figure amount (about 80% of the case assets) to the other side for unspecified “payment of their fees and costs.” The take-away is that the issue better be really important to risk making the judge that mad. And it helps if you never have to appear in front of that judge again. My signal to that judge was that I was sure about my case precedent and the Rule of Law, so I was making a record for appeal. (Then the case then would go on a long time.) His signal was that he was tired of the case, but wanted the case and financial outcome to end as he intended without any contract interpretation law or law or precedent in the record. (This way, he arranged for the ol’boy lawyers to win big.) I got enough out of the ruling to decide to not appeal; he got his way by paying the insider team an excessive amount of legal fees, all paid from trust funds. The lawyers won. The judge may signal to all that he has carte blanche made-up-his-mind, don’t-bother-me-with-the-facts on a critical element or subject. Often this is early in the trial. He may state that the attorney who raises the issue will be wasting his time and will be punished. Sometimes, the judge just announces that anyone bringing up the subject again will lose. The judge is announcing that he has a preconceived personal opinion (discretion) and will overrule or deny the issue regardless of the Rule of Law or merit. Others have been fined or imprisoned for contempt of court.113 Obviously this is a closed-minded judge and worse, he is narrowing the trial procedures and admitted evidence to obtain a particular outcome favorable for one side. Worst of all, he is substituting discretion for Rule of Law. In some cases, no black-letter or statutory law is allowed into the record. So the whole trial will consist of testimony without law. That way, the case outcome with be only judge-made law, varying case by case by case. Another judge told an attorney (trying to explain why he was late to court) I don’t give a fuck.114 Ordering people to shut up 115 is fairly common, as is name-calling: asshole, punk, cheat, liar are common, as is deadbeat, stupid, and referring to

112 Raymond Hernandez, reporting Judge Nominee Is Called Rude to Lawyers, Sharp attacks as Senate Opens Panel Review, USA Today. 113 Judge was suspended for 15 days without pay for inter alia, holding an attorney in contempt for attempting to make an offer of proof on a matter previously ruled inadmissible by the judge. Inquiry Concerning a Judge No 481, Unreported Order (Ga., Oct. 7, 1983). (inter alia is shorthand for ‘among other things’) 114 In re Lehman, 812 P.2d 992 (Az. 1991). 115 In re Lemp, 72 N.J. 425, 371 Az 2d (1977); see also In re Bozarth, 604 A2d 100 (N.J. 1992); In re Thronson, No. 93-1548-F-45, Wash Comm’n (August 4, 1994).

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people as animals.116 Sometimes judges use actions and gestures to express their displeasure. For example, the judge who pulled down his pants and showed his bare buttocks.117 One made a vulgar middle-finger gesture to a latearriving defendant in a traffic case. He called it digitus impudicus.118

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GUNS Several judges have pulled handguns and aimed them at people in court; another sat on the bench loading his handgun with bullets while questioning an unruly witness.119 Another pulled a knife on a guard. Another Superior Court judge in Indiana, apparently distraught that his juvenile daughter was missing, entered a man’s house and threatened to shoot him.120 I actually sympathize with this judge, but the state’s commission on judicial fitness voted to charge him with two charges of misconduct, while the police looked the other way. On the other hand, one judge was violently opposed to handguns, so he spoke personally to the jurors in front of media, and talked about social problems caused by handguns and his own personal experience. He urged jurors to contact their legislators to change gun ownership laws.121 He was found not guilty of violating the code of judicial conduct because he was merely expressing commentary about his political views, including those on civil rights, affirmative action, and gun issues.122 The court distinguished a difference between patently offensive remarks and benign racial commentary. Really?

STUN CUFF DANGER Most people have heard about law enforcement abuse with stun guns of non-resisting defendants during arrest and interrogation — which leave horrendous burns and scars, cause great pain, and incapacitates men. Almost never are the perps charged or convicted, and the event occurs on a dark street or the jailhouse. In an unusual display of oversight, a 26-year veteran Maryland Judge was disciplined for ordering a deputy sheriff to activate a stun cuff during jury selection. The defendant was in pro se, and was reading a objection/statement, standing calmly behind a table, but he did not stop reading when so ordered by the judge. So the judge ordered the defendant shocked, which lasted about five seconds, causing the defendant to scream and fall over in pain. The case for deprivation of rights under color of law was investigated by the FBI. It was determined that no force may be used absent danger, said the DOJ Civil Rights Division. “Disruptive defendants may be excluded from the courtroom and prosecuted for obstruction of justice and contempt of court, but force may not be used in the absence of danger,” said U.S. Attorney Rod J. Rosenstein and the former judge was sentenced to one year of probation with a requirement to attend anger-management classes and pay a $5,000 fine. The victim was never named in the judge trial reports, nor was his race identified, so it is hard to determine what happened to the defendant, or if he was compensated. But the event occurred in 2014 in Charles County Maryland; the discipline trial and sentencing was in early 2016, after the 2015 Freddie Gray Baltimore race riots spread like wildfires across the county.123

116 See In re Read, Unreported Determination, Wisconsin Comm’n (November 11, 1985), and In re O’Dea, 622 A.2d 507, Vermont (1993). 117 In re Katic, 595 N.E 2d 259, Indiana (1992). 118 Spruance v. Commission on Judicial Qualifications, 13 Cal.3d 778, 532 P.2d1209, 119 Cal Rptr. 841 (1975). 119 In re Sturgis, 529 So.2d 281, Florida (1988) and In re Fleet, 610 So. 2d 1282 (1992). 120 Elkhart, Indiana Superior Court Judge Benjamin Pfaff, Criminal charges of threatening with a gun and lying to law enforcement involved a Special Prosecutor and the Judicial Conduct Committee, which eventually dropped the charges, however the Indiana Commission on Judicial Qualifications brought two misconduct charges. 121 In re Darrah, Unreported Determination, Washington (1989). 122 See In re Complaints of Judicial Misconduct, Nos 84-6-372-08, 84-6-371-10 (6th Cir) Judicial Council (Mar. 11, 1985) for the distinction made between sanctions for patently offensive remarks versus a judge’s right to racial insults as benign commentary. 123 https://www.justice.gov/usao-md/pr/former-charles-county-circuit-court-judge-sentenced-civil-rights-violation

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CONTEMPORARY STYLE JUDICIAL BULLYING AND VERBAL ABUSE We can all be relieved that political correctness has arrived at the courthouse. Or can we? Many of the same judges are still on the bench, older and more experienced. But bad behavior stems from arrogance, temperament, bias, and judicial attempts to force control over the parties or the case outcome. The latter — affecting the case outcome — is by far the most serious and the most hidden. It is the prevailing theme throughout this book — hidden influences that affect a case outcome, usually to benefit an insider. Name-calling, humiliation, disrespect, and derogatory language still occur in courts on a daily basis, but judges are better socialized to let loose in ways that are less likely to incur ethics complaints against them. We are also into the second generation of shared power with the ol’boys, so more minorities and non-insider judges have made it to the bench. Abuse is veiled and a little more sophisticated. I find that now, it frequently comes in tiers — layers and layers of bad rulings built one on the other, so learning to unravel and spot abuse and corruption sometimes begins with a study of a judge’s openly bad behavior.

THE SLA TURNIP TRUCK JUDGE Remember the 1974 Patty Hurst kidnapping by the Symbionese Liberation Army? Well, one of those blonde, blue-eyed college chicks (associated with the violent anti-war protest kidnappers) hid for 26 years. She moved on to marry a physician, had kids, and lived a soccer mom life. When captured in 1999, she was removed to California, where the trial of Sara Jane Olson dragged on and on, as Mrs. Olson tried to revoke a plea she claimed she was coerced into accepting by her lead defense attorney. The Superior Court Judge Larry Paul Fidler (in tandem with Assistant District Attorney Eleanor Hunter) threw excoriating insults and barbs at the defendant throughout a mini-trial summary of proceedings, where the Defendant (and her second-chair counsel) tried to revoke her earlier plea. First Chair Attorney J. Tony Serra did not show up for the hearing, and called in to say he missed his flight because of bad karma and that he was going back to bed. The belittling prosecutor’s statements included this one: “She’s claiming the “little girl defense.” “I was a girl and couldn’t stand up to a big strong man” about Olsen’s claim that her first defense attorney [Serra] brow-beat and coerced her into a plea. [Author’s note — shame on you Eleanor. You of all people know that’s how the criminal trial system works 99% of the time in America. Defense attorneys brow-beat or cajole guilty pleas out of their clients on the eve of trial. Modern statistics are staggering in their implications.] But it is the judge who takes the largest slice of imperial pie in this case. His abusive demeaning comments and personalized testimony, suggest he was emotionally-over-involved in a case that took a quarter century to bring to trial. His gratuitous comments included the following: “I have no doubt that she was guilty of the crime. I believe she has a tremendously difficult time admitting to what she did, not just to herself, but also to her family and her many supporters in her adopted home.” “I would find it hard to sleep if I thought I was denying an innocent person the right to a fair trial. I intend to sleep very well tonight.” [Author’s note — remember, the judge made these comments before the trial, on a motion hearing to withdraw the plea. And he’s already decided in his mind that she is guilty. No trial needed.] On the evidence and testimony that she was not even present in Los Angeles at the time of the attempted car bombing, the judge interrupted, “please, it just doesn’t add up.” When the defendant corrected the prosecutor about the mispronunciation of her maiden name, the judge threatened to jail the defendant. Judge Paul Fidler offered his own sarcastic opinions and personal assessments throughout the hearing when referring to the defense. He used strong words like “abhorrent” and “absurd” to rule on and dispose of the defense arguments. 121

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At one point he said, “I often wonder if the defense thinks I drive a car to work on a turnip truck.”124

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The judge asked why if the lead attorney was such a bully, did the second chair attorney not speak up? She said she did — today — because Attorney Serra was in bed with his karma and not present in the courtroom.

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Instead of censuring the “mocking ridicule” of the prosecutor, the judge piled on himself with more mocking ridicule/insulting criticism — and called the defendant’s supporting arguments abhorrent and absurd, before he gave his own “withering analysis.” We’ll pick Mrs. Olson’s case up again in the Chapter on sentencing, but needless to say, Judge Fidler fiddled with her sentence as well as well as her pre-trial motion hearing.

THE PAPER AND INK JUDICIAL ECONOMY INSULT AND THREAT After two years of hearings with one judge, the Belle Isle Nuns were surprised to get an unprepared replacement judge for the opening day of trial. The clerk of court told their attorney that the regular judge suddenly took ill. The trial lasted a week, and New Hampshire District Court Judge Patricia Coffey was named as a last minute substitute judge. She was not only a dramatic change from the old judge, but she reversed many of the former judges favorable pre-trial rulings (FOF&ROL). She was notably arrogant and rude. An attorney from Boston represented the small convent in New Hampshire with seven nuns remaining. His clients needed a variance to complete a multi-million dollar sale of their old convent, located on a small island on the river near the ocean. It was valuable waterfront property, now vacant. The out-of-state lawyer125 was distressed at the deprecating remarks and harsh upset rulings of the substitute trial judge who also appeared unprepared for trial and not knowledgeable about real estate development or zoning law. The new judge even hinted the seven Nuns might be criminal when they sought to rezone the island to sell their Convent. Horgan was in his 60s and normally practiced law around Boston. The hour trip north to the Rockingham County Courthouse was a new professional experience for this courtly Bostonian. He was shocked. Not only did the replacement judge ignore and reverse many favorable rulings from the earlier judge,126 but she appeared surprisingly ignorant about the whole area of property law, reported Horgan. For her final order, the judge wrote about the lack of merit she found in the nuns’ case-in-chief, which she wrote should never have been brought or allowed to go to trial. She wrote it was not worth the paper and ink necessary to write the final order. By my calculation, that would have been pennies, but that was her point — to personally disparage the losing party.127 She also suggested they were criminals. Later during appeal, the Boston attorney hired a private investigator, who found out and wrote out affidavits for the appeal record — The original judge played golf on the first day of trial. He was not ill, as reported by the clerk when Judge Coffey was substituted to preside at trial; There was an undisclosed relationship between a key trial expert witness and the replacement judge and her husband — which later involved a free, quiet, boundary-line adjustment giving the judge’s existing real estate, a new ocean access/view over the golf course development of the expert’s employer’s company at Wentworth by the Sea.128 (These things do get convoluted.) 124 Information for this segment came from articles by James Sterngold, “Judges Refuses to Permit Ex-Radical to Reverse Plea, NY Times, December 3, 2001, and an article written by Patrick Condon for the AP online June 27, 2013 at http://www.twincities.com/ci_23332608/freed-from-prison-formerradical-sara-jane-olson 125 Boston Attorney Herbert Horgan 126 Identify the FOF & ROL building blocks, to understand how illegitimate this is. The FOF&ROL lesson is the end of the first chapter. The replacement judge was removing pieces of the case foundation, to nullify established building blocks in the case. But correction of defective case building blocks is an issue for an appeal judge, not for a replacement judge. That is assuming the building blocks were defective and not just inconvenient. 127 This is the same judge referenced as a water carrier judge in § 12. She was not only compliant in the cases where she stepped into the shoes of Rockingham Judges JNad and Gray, but Judge Coffey had that woman-on-woman domination issue — where she had to put down other women in her courtroom — even with nuns. The hate-women signal is so loud and clear once you know what to look for, but so distressing and offensive if you don’t understand. It is (merely) a pathological pattern for this judge. It’s irrational and uncontrollable, resulting in unreasonable human behavior, but occurring in court. Recognizing a pattern, helps reduce the pain that is deliberately inflicted. Note J. Joseph Nadeau hereinafter is “JNad”. 128 Boundary line adjustments do not require any court hearing; a new document/deed is merely filed with the county registry. [As opposed to a quitclaim or corrective deed.] The adjacent property giving the adjustment was a new golf-course and ocean-front housing development.

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A powerful politician (an Executive Counselor to the Governor) was thanked at a rotary luncheon for getting the judge changed for trial, and she acknowledged you’re welcome. Her relative owns property across the water from the island. A complicated scenario with multiple layers of self-interest, political favor, and evasion of rules. But to the Boston attorney, what proved to be the tip-off was Judge Coffey’s unwarranted personalized attacks on his clients. They weren’t gratuitous as her FOF/ROL reversals and offensive comments set the stage for her later negative trial outcome. The Boston attorney later read a Boston Globe story, concerning the same Judge Coffey with similar allegations of insider favoritism in another Insider case.129 The Globe carried the story in its Boston edition, but not in the out-of-state New Hampshire edition, where the judge lived and worked, and where both cases were tried.130 This is a subtle example of how the press kowtows to judges. The press may report judicial abuse out-of-state, but does not print the story in the edition that circulates in the judge’s own territory. Some Judges Early On Have a Propensity to Abuse the Authority of Office.131 They may be totally unsuited by temper or temperament for judicial office. Other times, the abuse comes with cumulative stress or a release of ‘inner ego’ about one’s personal power. Once in office, a judge was found to have been swept up with “the intoxication of judicial power”.132 Or, as in the above example, a bench appointment can be a political favor exchanged for a favorable case outcome — the result of years or decades of judicial and political abuse.

Intoxication of power: a display of judicial authority before an intimidated audience; a form of exhibitionism; the naked and illegal use of judicial power to ignore basic Constitutional precepts.

Some states review judges periodically for judicial demeanor and courtesy, but often these reviews are cursory without any method for cataloguing or correcting abuse. In Hawaii, judges have periodic performance reviews, which usually rubber-stamp the judge’s re-appointment. But for one particularly abusive sexist Family Court judge, the reviewers were startled when on the day of his review, many women gathered with signs in front of the courthouse; others wrote letters. As a result of the outcry of hundreds, Judge Arnold Tsuyoshi Abe still was reappointed, but quietly transferred out of family court. Other forms of oral abuse include a judge belittling an attorney in front of a client. When language is used to undermine the dignity of the attorney, the judge lacks common professional courtesy and implies an attorney is not to be taken seriously. One judge told an attorney his objections were childish, ridiculous, and quite immature.133 On a regular basis, judges chide pro se litigants for not having an attorney. I am so tired of experiencing judges all over the country routinely say to me as a pro se party, only a fool has himself for a client. The insensitivity behind that ignorant statement suggests a learning curve so great that only God can provide the lesson.134 The collective lack of understanding about the price of attorneys, the relative wealth of the parties, and all the other factors that go into the inability or decision not to spend a large or small fortune on a lawyer, is obvious in many of these cases. Judges are trite and insensitive when they mouth such an unhelpful platitude. If there existed real concern,

129 He read a news account about Judge Coffey. That is how this out-of-state attorney came to contact me — we shared the same hand-picked replacement judge in Rockingham County in different cases. And both suffered egregious losses and disparagement in her court. 130 The Globe’s reference prompted Boston attorney to travel up to see me with information about the private investigator affidavit that he had filed in the state appeal of the nuns case. The Boston attorney asked his story not be run until after he retired for fear of retaliation. Since then, the judge has been removed, the island went up in value, and the nuns presumably came out ahead in the long run. Perhaps the providence of God? It’s too bad most cases like this don’t have such a good ending despite bad deeds. 131 In re Crowell, 379 So.2d 107, 110, Florida (1979). 132 In re Yengo, 72 N.J. 425, 371 A2d 41 (1977). 133 In re McDonough, 296 N.W.2d 648, 679, Minnesota (1979). 134 See also Father Rohr, Learning to See, at the Introduction to Chapter 8.

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the judge would work to help the party obtain affordable representation. But the real reason people are supposed to lawyer-up — goes to the country club rules. In the country club court, wealth transfer and case control presuppose attorney involvement.

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Interruptions. Judges frequently interrupt witnesses, and sometimes cut them off to challenge or accuse them of lying, (perjury) or making all manner of rude remarks and acts. Sometimes, it’s a simple I don’t believe you, while interrupting. Or you have no credibility with this court. Or I don’t believe a word you said. Other times the judge rudely characterizes the witness testimony: this is voodoo, this is witchcraft, or he labels the litigant immoral or mental. One simply gave the raspberries as commentary after an expert’s testimony. Another allowed cocky lawyers to use a courtroom tactic of repeatedly interrupting the other side rude and personalized insults, monologues, and name-calling. The judge either scolded or threatened the pro se — who objected to being interrupted. The admonishment was sometimes is delivered as a group admonishment, but with eye contact and tone directed at the pro se, thereby evading potential discipline. Additional Security. I had one client that the judge ordered four extra security guards at a post-trial hearing — after my client filed a judicial conduct complaint about Marital Master Harriet Fishman. A security guard met me at the entrance to the courthouse, and said that he was ordered to stay with me and my client throughout. Several other bailiffs appeared, and they too bird-dogged both of us around the courthouse, even to the bathrooms. It actually got crowded. My client was not a man with any history of violence, nor in my opinion did he have any violent propensities. His problem was he was a lover, not a fighter. It was a divorce case with cross-over allegations that he had slept with his sister-in-law (separately) after his wife and her sister (together) seduced him in their swimming pool. [The unspoken implication of the judge’s security order was either he or I was potentially violent, and might need to be restrained in court by a phalanx of court guards] The client complained the judge was biased in favor of his wife’s attorney (who had a reputation with local lawyers as being a close friend with the judge, also for never losing a case in Judge Harriet’s courtroom.) The client filed an affidavit containing his local-attorney-research. The Master was visibly angry and loudly denied any special friendship with the lawyer. [I figured it was a form of slanderous retaliation or insult to order out the guards, but convinced my client to focus on the issues that we might win, and just let this insult pass.] His judge complaint was dismissed, but someone in authority noticed his affidavit about judge favoritism, and shortly after his case closed, the judge was transferred to another county. [Note: I have found that judge complaints will be dismissed and relief is never given to the person making the complaint, but cumulatively, complaining goes to help the next potential victim. So think of the process as ‘playing it forward’ or an act of kindness to strangers.] Still another cowboy judge, in a violence-restraint case, suggested the object of multiple unwanted attentions should learn “tolerance” toward a blustering harddrinking, gun-toting cowboy I call ‘Bullwhip Jack.’ You might benefit from spending time in jail, the judge told me by way of encouragement. His admonishment was in regard to drunks ongoing threats to shoot, bullwhip and run me down, along with my sheep, baby goats, and dogs (with a truck, not a mustang.) His bullwhip was against my herding dogs. The judge’s misuse of a popular political term tolerance (in a wrong context) was a slipshod attempt at intimidation by reverse political-correctness. Tolerance may be an appropriate admonishment for the perpetrator in a racial hatred cases, but it sounds ludicrous as a court instruction, to tell the target of stalking and deadly threats to ‘get over’ guns, whips and threats to kill. Apparently it’s a regional Mexican-cowboy thing. About the same time, former Sheriff Ron Brown (running for judge but disqualified because he lived out of district) blocked the door at the newspaper office, where I had just turned in a weekly column. He said he was going to kill me (for taking a building photo for the news story.) He repeated his threat a few minutes later, so I snapped his photo and asked the sheriff’s department to investigate. They said they were going to lunch. City police finally took a report and sent out a team of excited officers, but they lost my report. I re-filed but that also got deleted from the system.

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SOPHISTICATED INSULTS Less apparent in style than the blatant racist bias of years ago, modern judicial slurs now generally comes wrapped in the nuances of legal sounding language indicating a more sophisticated judicial harassment and bias. Because of social and institutional conditioning, judges know they must hide their bias and bad acts, so contemporary judges rely more on ridicule, slander, and legal sounding personal attacks (you might benefit from spending time in jail) than the blatant name-calling of decades past. Look for more sophisticated barbs and generalized threats, clothed in legal sounding phrases, that when dissected, don’t mean what they sound like, or may be legally illiterate, but they sure sound impressive and threatening when delivered. Also, there are new classes of targets for judicial bias — including the rich and the poor. Interestingly, what has increasingly shown up is bias against the very rich! And even the relatively rich, (compared to judges own wealth.) Especially minority rich. While most bias (and all reported textbook cases of bias) deal with predictable classes of race and sex, (race and sex still remain) there are more insidious biases in court today, as suggested by the large body of anecdotal narratives concerning mothers, wives, and non-mainstream/white wealthy. These are patterns of ‘Rank Abuse’, including predatory behavior of subordinates, exploitation of the weak, and other safe targets (like poor people. If you’re poor, you must be not smart.) These victims are less able or likely to object to the judge. Although frankly speaking, bias and discrimination in the justice system are so problematic that even when a judge’s bias is conclusively demonstrated, it often will not be reviewed or corrected.

CONTEMPORARY RACISM New Hampshire Judge Douglas Gray entered the courtroom and seeing only a black man in a suit and tie seated at the defendant table said, Sonny, we’ll begin as soon as your attorney arrives. The man responded, I am the attorney. My client is downstairs in the holding cell. Spectators complained out loud, and Judge Douglas Gray ended up recusing himself from that case on that day, but after that refused so apparently he though his racial prejudice cleared up that day. This was the same judge who had a reputation for abusing IMEs 135 against wives,136 and also earned a page-one op-ed write-up in a popular statewide magazine for his abusive language and name-calling in the courtroom.137 The response from readers applauded the publication’s bravery in calling out a man the magazine referred to as — an arrogant bully, an embarrassment to the legal system, disgraceful, and dishonorable.

(And that was just his mother!) Judge Douglas Gray (God rest his bigoted soul) generated multiple case references for this book, and caused inestimable losses in freedom and financial and emotional damage to the people who for 30 years, were unfairly treated in his court. Once retired, this same Judge Douglas Gray, although Constitutionally disqualified by age, continued to be appointed by the Court to preside as a retired but ‘specially assigned’ judge for ‘special cases’ (including mine) — presumably cases that required his heavy-handed insider handling.

DEFAMATION AND SLANDER There is a doctrine at law, which is intended to create an atmosphere of openness in the judicial process. It provides that statements made by participants in a court proceeding — whether a witness, a party, and attorney, or the judge, are privileged, if they are made in the course of the proceeding and are relevant to the proceeding. There are conflicting cases about whether or not a judge can be sued for saying or writing defamatory statements during trial. One side insists

135 Independent Medical Exams. 136 The New Hampshire divorce case of Alice True has many allegations of judge self-dealing and misogyny. 137 New Hampshire Premiere magazine, Op Ed Justice Denied, on Judge Douglas Gray (November and December, 1994). See also Judge Gray’s handling of the Pamela Smart trial in Chapter 5, and other references about this “arrogant bully” judge.

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that the need for judicial independence prevents judges from being sued, whether or not the statements are relevant to the proceedings. Other lines of cases have allowed judges to be sued if they allow their slanderous statements to be reprinted in unofficial reporters138. Check to see where the judge was acting, was it in a non-judicial capacity, was he doing an administrative act as opposed to a judicial act, or was he acting with highly aberrational behavior?

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RULES FOR JUDICIAL CONDUCT The formal rules of judicial conduct are overbroad, vague, and ineffective from a litigant perspective. But they work great to get judges off the hook. Judges have to be faithful and competent in the application of law, and they have to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.139 But also, judges have a duty to control the proceeding, and to require order and decorum. Taken together, these are the court-made waffle rules that cut judges boundless slack. Violations under such over-broad rules, means bad behavior through rudeness, personal hostility, sarcasm, loss of control, degrading language, and insults — bullying that doesn’t usually get a judge into trouble. The Court’s internal complaint process contains its own weasel tricks to dismiss most complaints. The most disingenuous handling is simply not to make a record of complaint. Or if added to a list, to dismiss it in a letter that states the complaint was a substitute for appeal. This legal sounding phrase is frequently use to dismiss or reject complaints, and it is gibberish — as conduct complaints about judges do not generally overlap with appeals, and even if they did, each is a separate jurisdiction and focus. One does not preclude filing and relief in the other. One committee disciplines judges; the other forum seeks to correct and overturn legal errors in the case. They are not mutually exclusive. This duck and dunk method allows judges a clean get-away, even if they have outrageous and manipulative behavior. Examples include hair-splitting rationalizations over whether a judge — who admittedly uses racial slurs and epithets — can be censured. The analysis includes whether the remarks are public or in chambers; whether they are in or out of court. California Supreme Court Judge Stanley Mosk’s famous dissent regarding racial epithets, (as protected First Amendment speech for judges!)140 is actually embarrassing. Review needed. The internal disciplinary process of courts needs a review of the effectiveness of this secret disciplinary system. Overall, internal discipline of judges isn’t working to stop court verbal abuse (or any other kind.) The wink-wink message sent to judges is — if you behave badly but it is not widely reported, we can, under our secret rules, deal lighthanded punishment by ignoring, minimalizing, or rationalizing it away.141 There might be a light suspension (usually with pay) or a transfer. The concept that a judge’s private bias won’t hurt people is one of those ill-though-out results of a system that protects judges first, and worries about justice and fairness as an afterthought, if at all.

138 There is a large increase in so-called ‘unreported’ decisions on appeal. I thought the judges were looking for ways to avoid public reporting of insider special outcomes, but it may be an effort to avoid libel charges against judges. 139 Model Rules of Judicial Conduct, Canon 3. 140 In re Stephens, 31 Cal 3d 403, 645 P2d 99, 183 Cal.Rptr. 48 (1982). 141 See Theodore Kamasinski, on Behalf of Himself and Others, plaintiff-appellant, v. Judicial Review Council, State of Connecticut; John D. Labelle, Executive Director; William S. Bromson, Chairman; Ethel S. Sorokin, Member; Eugene C. Baten, Member; Sarfield G. Ford, Hon., Member; Howard J. Moraghan, Hon., Member; James M. Higgins, Hon., Member; John Donnelly, Dr., Member; Michael J. Daly, Member; Rebecca S.Breed, Member; Richard C. Lee, Member; Daniel J. Mahaney, member, Defendants-appellees, 44 F.3d 106 (2d Cir. 1994), U.S. Court of Appeals for the Second Circuit — 44 F.3d 106 (2d Cir. 1994)

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Judicial abuse and intimidation can go beyond mere words . . . The list of bad acts of judges are not all detailed in this chapter, and many are found in subsequent chapters, but here’s a short list. What is notable about this list — it is a liturgy of a nebulous judge power exercised in some form or another in a majority of the reported cases. Contempt has become a catch-all reason covering over judge abuse, and bears extra scrutiny from readers.

REPORTED ACTS OF PHYSICAL OR VIOLENT ABUSE BY JUDGES Assault

Battery IME’s* Arrest Lock-up and jail Calling out the National Guard Deputizing friends to invade, search, seize and perform illegal acts of ‘law enforcement’ Armed home invasions Oppressive fines and penalties Ignoring illegal force by law enforcement, DAs, and others Facilitating hard-ball tactics by one party against the other Contempt of court abuse IME is an involuntary mental exam Judicial temper tantrums, bad words, and verbal abuse are the first level of control a judge can apply against those who challenge his authority. That is — the judge’s perception that his authority has been challenged. As we have seen, this so-called ‘challenge’ can be as simple as wearing the wrong clothes to court, or trying to get an objection or a Rule of Law into the trial record for appeal. One magistrate court judge in Taos explained that he would have the bailiffs scan the waiting criminal defendants each morning — for ones who showed attitude. Then he arranged to have that person’s case called first. The judge would make an example, and then the rest of the morning arraignments would go smoothly. If he didn’t do this, but just took cases in the order they were in the clerk’s pile, he got far more attitude and headaches all day. He said it worked great in speeding tickets, drug possession, and other misdemeanor cases where defendants often declined to take any personal responsibility. I like this guy: I’ve sat in the back of his courtrooms, just observing, and he has a reputation as a hard-ass judge, but he cares, is respectful to people (although not necessarily those with attitude.) He does a good job, works hard, and is not a trained lawyer. He’s a political appointee, who asked me for constructive criticism of his performance, and I rarely found much, if anything, to suggest. From what I have seen, he is quietly religious (a New Mexico penitent, which is some-serious religious) and he makes a thoughtful effort about his work. He is a good thoughtful judge. The right or wrong of a perceived ‘challenge’ to a judge’s authority is not the triggering event. It is the underlying issue of questioning a judge at all that becomes a source of irritation, anger, and retaliation by many judges. It evokes a defensive emotional response and often judges feel they need to teach the challenger a lesson about ‘respect’ for a judge’s infallibility. (We’re not talking about hostile or rude people here. You can be Miss Manners and still incur in court wrath for just doing your job — which is providing the Rule of Law and making a record for appeal.) Lessons in respect taught by judges usually start with oral admonishments to the objecting party. They will become increasingly acerbic, personal, and insulting and belittling. If this first line of training does not put the objector back into a docile position 127

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of silent respect, or if the judge is of a bad temperament or having a bad day, it escalates with other displays of power. Reports of angry and out-of-control men and women judges who when peeved misuse a class-authority to force a party to abandon an objection, question, issue, or defense– a perversity of a system where citizens are made subject to absolute authority in all things, even if unclean and corrupted.

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One defendant in a New Hampshire divorce case (a noted whistleblower) received a written note threatening to kidnap and behead his children. It was left on his car seat, where he found it as he left for a family court hearing. When he tried to tell the judge and offered the letter-threat, he was arrested in court and jailed 10 days for contempt of court. The judge wasn’t going to hear anything about it and didn’t want it in the record or that hearing videotaped or recorded. (Earlier hearings had been videotaped by Mr. Gill’s son.) Gill Sr. has been a longtime New Hampshire judge critic and activist. The wrongful use of direct contempt to silence and exclude material from the court record is too easy for a judge to use wrongful force to order excessive and inhumane punishment of people without following the rules and without due process. In jail, Mike was put in solitary; he was given food and collapsed in a medical emergency. The prison began hypermonitoring his blood pressure and Mike thought the prison staff expected him to die. No one provided medical treatment. Mike stopped eating and drank only bottled water and recovered, but didn’t eat again until he was released 10 days later.142 Five states away Janice Wolf-Grenadier, also a judicial whistleblower/activist, experienced 28 days in solitary confinement, when she went into a post-divorce hearing that she thought involved efforts by an attorney (her former mother-in-law) to take Janice’s $700,000 house as payment of her ex-husband’s attorney fees. 143 Janice had been ordered to pay about $8,000 to her husband’s lawyer (he used his mother, the former wife of the State’s highest Chief Judge, and a friend of the presiding divorce judge). When Janice showed up for court, her former mother-in-law told the judge simply, We have not received any payment. Since the time ordered for payment had not yet passed, and since Janice was impoverished, she stood up to speak. Not one word, the judge told her. She never got a chance to speak. Then the judge said to the bailiff, “You know what to do.” Without other direction, the bailiff put Janice in handcuffs and removed her from court to solitary only drank water only after guards finally brought her bottled water with an unbroken seal. She was taken back to court, where the judge apologized to her former mother-in law, I’m sorry I can’t keep Janice in jail any longer. And I’m sorry I can’t order her to pay your attorney fees. Sometimes (perhaps often) judges get angry, especially at pro se litigants. They are definitely angry with whistleblowers. There’s a reason these cases are often scheduled last on the docket, after the courtroom is cleared. Often in these cases, there is information the defendant wants to enter that the judge wants kept out of the court record. If a pro se party in your courtroom had just received a mafia-style threat to his family on the way to your family court hearing, would you as the judge respond by ignoring the threat and locking him in solitary for reporting it to you? Is that ever an appropriate judge response? How judges respond with inappropriate use of contempt power is important to review using an external POV (point of view). Contempt orders are the raw force of the police power of the state applied against individual citizens, so contempt use is not a ordinary or personal or willy-nilly matter. Picking and choosing the content of the court record is not — except in rule-controlled circumstances — a judge role or a reason to exercise contempt. Responding to a death threat against someone appearing in court is a judge role. So what might be an appropriate and proper judge response? A referral to U.S. Marshalls? Okay. The judge instructing his clerk to call the FBI? Okay. Looking at the threating note? Okay. Incarcerating the target? Nope. There’s a human decency factor missing in this judge’s response that doesn’t add up. Sometimes a judge may exclude evidence based on rules — but not always, and it is not the role of the judge to take sides and to initiate exclusions. The exclusion of information and defendant testimony in court is governed by established written Rules of Evidence and other statutes at law. None of those or other legal process factors applied in this in court order of incarceration.

142 http://stateofcorruption.org 143 Grenadier v. Grenadier, et al.; Alexandria (Va.) Circuit Court, Case No. Cl15003661.

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Judge-Targeted Court Cases. I am observing and hearing about another judge pattern — the targeted, systematic hyper-use of Evidence Rules by judges against only one side.144 This is another judge case management problem — the use of judicial discretion to stack case information to support only outcomes biased in favor of insiders. This stacking goes hand-in-hand with judges who exclude information to protect themselves from being exposed manipulating a biased result. Either way, judge control in precluding equal pro se participation in the court process is improper and unjust. It becomes an insider game where one team consists of all the attorneys (for multiple parties) and the judge and the paid experts, against the pro se team standing alone. By abdicating the proper role of a judge, to become a bar team player, the neutrality and fairness in trial process is abandoned. Do the targets know the judge is manipulating the process against them? I did. Mike Gill and Janice and many others in this book were acutely aware what the judge was doing. Victims of bullying, bias and prejudice of course understand they are being targeted and discriminated against. Ask any minority.145 We know some judges wants pro se to quake with fear in front of them, so we will be afraid to object and make a record. Incarceration may be a late-arriving illegitimate exercise of power, done later in the case handling, after we have lost everything else. Of course, there’s always death, but outright death sentences are not standard procedure in a divorce. Not in America anyway. Mike Gill had just experienced a gruesome death threat against all his children. (Many whistleblowers have received something potentially lifethreatening, but it doesn’t help to know that. Each threat creates intense and personal fear.) We each knew our incarceration was inappropriate and unjust. But incarceration is another way judges threaten critics to be silence. Judges however, call the resulting gridlock (over admitting testimony, statements, documents or objections in court, and a victim’s efforts to make an in-court-record) — a contempt problem — when it actually is an improper procedure exercising a flawed power to dominate — to silence criticism or keep something out of the court record. And to punish outsiders who try to object and make a record of that court exclusionary process. Angry judges do not adhere to the rules or law designed to protect the civil rights of an outsider team in court. To the point where judges sometimes lock people away without charges — in solitary — indefinitely. Without due process notice or opportunity. Without phone calls or access to counsel or other help. All this judge posturing, when examined under the microscope of state complaint review committees, is routinely excused as acceptable judge abuse, under a vague provision in the code of conduct for judges which relates to ‘maintaining order in the courtroom’.146 The catch-all phrase is being routinely abused, because overall judge conduct rules provide no real protection for ordinary citizens abused in a biased court. The Court system doesn’t recognize there is a problem. So outside-team readers will need to assume an elevated vantage point to examine the policy, validity and opportunities for unfair abuse by angry and bullying judges who exhibit bias in court rulings. Whether from uncontrolled anger or bias, the court system has an unaddressed systemic problem.

ARREST AND INCARCERATION Usually these types of orders are made under the umbrella of judge contempt powers. But contempt power is not always applicable, and judges are limited as to when and under what circumstances they can use contempt. The average litigant in court doesn’t know that.

My mantra in my divorce case was, this is just a civil divorce case; she can’t arrest you. Note: Of course, I was again over-optimistic. I was arrested. It just wasn’t legal.

144 This preclusion trick is often applied in tandem with judge avoidance of any testimony about the applicable Rule of Law. The big picture is for a defendant to wind up with an empty case — without evidence or law in the record — so the judge is free and unrestrained to apply only judicial discretion for the case outcome. If a judge is stretching out a case for days or weeks, but nothing important is getting into evidence because of trial rulings, and the judge repeatedly initiates objections to your testimony, witnesses and exhibits, slow down and focus. Track what’s happening to the Rule of Law? Trial might be an empty show, full of emotion and drama, signifying nothing. 145 If you didn’t earlier, flip to the intro to Chapter 8 — Father Rohr on Learning to See. 146 Model Code of Judicial Conduct, 1-A.

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It is interesting to see how judges in civil cases or other courts of limited jurisdiction, (in other words, cases not involved with criminal charges, where presumably, one might anticipate landing behind bars) arrive at a decision to exercise what is basically an incarceration punishment. It appears in the heat of emotion, where a judge digs-in and insists on my-way-or-the-highway. Learning to dissect these kinds of “contempt” cases into segments is one step forward in scrutinizing contempt-power abuse. Later, there is a homework exercise for those interesting in deconstructing incarceration for contempt. Examples abound, including arrest and jail for all manner of people in and out of court, including attorneys who piss-off the judge. One judge ordered three sheriffs to go out and bring back the vendor who made his coffee. The bailiffs handcuffed the man and brought him into court, where the judge found him guilty of bad coffee.147 Another threatened to jail of a person who kept writing negative letters about the court to the newspaper.148 One judge ordered a police officer to appear before him on contempt charges for not turning down the volume of his police radio in a restaurant.149 Another ordered a director of a children’s home to violate a court rule; when the director refused, he was tried for contempt and incarcerated.150 Judges have jailed process servers, attorneys and court critics. When a client’s attorney failed to show up at court, the judge jailed the client. They arrest people for non-arrest-able offenses, such as debt, civil judgments, evictions, and overdue rent. One locked up an eleven year-old child on a field trip for a half-hour just to show him what it felt like to be behind bars. Another arrested the entire public gallery, when no one confessed to owing the cell phone that went off during a court session. Note: by now, you should be catching on to the Country club technique of pretending any legal phrase a judge offers is appropriate, even if it doesn’t make factual or logical sense and is applied out of context in law. This is a very sensitive standard. It is best understood by first determining if there is other evidence of pre-existing favoritism, or the other biases discussed earlier in this chapter. One element to look for in analyzing contempt-abuse cases is whether the judge or a party initiated the contempt. By this I mean, under the ordinary functioning of logic, it is hard to imagine reasonable people ending up in jail for joking in line. The two old guys might have checked with First Amendment Supreme Court attorney/activist Jay Alan Sekulow151 about sidewalk free speech. But in these kinds of cases, people do not put themselves in contempt of court, but rather an out-of-control judge (somewhere, acting not under real rule of law but under a contrived macho law) characterizes a legal act as a contempt of court. Is this a mere difference of opinion? I don’t think so. Look at Mike and Janice. It fits an institutional pattern that judges are allowed to invoke whatever capricious rationalization, and excessive punishment they want for upholding the honor of their courtroom, regardless of the lack of due process, legal authority or precedent at law. Other factors, like the length of time (10 days and 28 days) suggest judicial bullying. We’ll also look at Whistleblower Attorney Richard Fine — 28 months in solitary confinement. This practice of retaliation is the direct outcome of judges assuming they have unfettered power because the legal system no effective way established to rein in judge egos and abuses.

147 In re Perry, 53 A.D. 2d 882, 385 N.Y. S2d 589, 590 (1976). 148 Id. 149 In re Muszynski, 471 So.2d1284, Florida (1984). 150 In re Seitz, 495 N.W.2d 559, Michigan (1993). 151 American Center for Law and Justice, Jay Alan Sekulow, Chief Counsel, www.adlj.org has often argued in the U.S. Supreme Court on First Amendment issues. See the Supreme Court Audio Files for eight audio arguments by Sekulow, including one on sidewalk speech.

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UNREASONABLE & DISRESPECTFUL BEHAVIOR OF LITIGANTS OR ATTORNEYS WHAT IS A JUDGE TO DO IF A LITIGANT IS DISRESPECTFUL IN COURT? One of my best friends from law school laments that she has been working on being appointed a judge, and it hadn’t happened in over a decade. She knew the appointment was about politics, but she comes from a small state (Hawaii), and figures eventually she will have so many good works that Court rulers will have to appoint her. She would make a good judge. Recently, Margaret Masunaga wrote, I sometimes wonder why I want to be a judge when I see how rude people are to judges. Margaret made me stop and think hard about what we expect of judges, and how they are to keep control of courtrooms, so everyone can have a fair chance to put on their case and be heard. I have been in middle and high school classrooms, and deplore the lack of respect junior high and high school students have for teachers. I loved school and learning, so it was difficult for me to see this waste of educational resources. It was difficult for me as a teacher to create an atmosphere conducive for learning, because of the rampant disrespect tolerated by some school administrators, and there is a parallel. Rampant disrespect for judges is not what this book is about, nor am I advocating for that kind of self-help. So let’s begin by looking at the differences between an out-of-control judge and an out-of-control litigant. The difference is subtle, but is a critical element for grading how judges act — and what, if anything litigants can do about being on the receiving end of rampant mis- and mal-administration occurring in many courts and cases. People react when they believe they are not receiving fair treatment in the courtroom. First, there is a gut-wrenching physical reaction, burning humiliation, and a dawning awareness that all is not right, and the judge isn’t functioning properly, and what just occurred wasn’t ‘fair.’ When in this situation, you may feel you have little choice but to stand still and respectfully receive some form of a royal screwing-over. I sometimes feel dizzy and disoriented, or more recently, slightly removed and on the ceiling looking down and what’s going on in my courtroom. That’s probably due to the mental distance I fall. From a high level of elevated respect and expectation about the judge — to the opposite extreme. It’s a little other-worldly to experience a judge acting corruptly and being able to identify it as the scenario unfolds. Its like watching a play. My sister sat in the courtroom with me for only one day of a week-long trial. She excitedly afterwards say, Caroline, it’s just like you wrote. It’s like they read your book and went down the checklist. And I began to realize anew — this stuff is happening in courtrooms everywhere. Emotions. This standing still to be screwed over — is a truly a helpless feeling that can elicit feelings of anger or even rage toward the perpetrator. If the perp happens to be the judge, then you are expected to ‘respect’ the abuser, because they have more power than you, and they can arrest and jail you. They make you feel like you are a wrongdoer, even if you know you are not. These repressed feelings can stay long and hard within our psyche, especially if you are innocent and in jail, or an innocent but now impoverished spouse, or innocent and looking at a 2nd, 3rd, or 4th retrial after a successful appeal. Or any of the countless moral justifications for feeling outrage.152 For Americans, their growing individual experience is that courts do not operate fairly and judges are not fair. This concept (for each person) comes as a shock. We grew up mouthing the Constitution, and trusting judges will be … what is expected — namely, if nothing else, judges are fair. People react differently when shocked about a basic core value. I’m going to talk later about pain, because that’s the inevitable outcome of these episodes of unfair treatment. Most try not to focus on pain, (whether administering or receiving it) yet pain may be key to why the whole country needs court reform. Some people react disrespectfully. Most do not. Does it mean that you are helpless to challenge a judge who you believe may be acting improperly? Of course not. Will you win? Probably not. So make a statement on the record that preserves your issue, do not engage in a verbal argument with the judge, and figure out your next moves afterward — from a safe distance. If you are the kind of person who is not used to practicing self-control or patience, the stress will 152 See my later note about feeling and surviving intense psychic pain.

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make it hard not to erupt in anger. Anger eruption will escalate, and you are on thin, dangerous ice because of the forum. In law, judges always win, and they retaliate against almost all criticism (and a critic) personally. But litigant disrespect is a red-herring rarity — and the wrong starting point for an accurate analysis. Everyone, even Oprah, understands the problem stems from judges…

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OPRAH Everyone is afraid of going to court. You must submit to the unfettered power of another. Oprah’s open letter about her feeling of fear begins with — “I have never been more afraid than when I went to trial…” And she’s right to be afraid. She fits neatly into the rich uppity woman category of judge bias. In the courtroom, only the judge will win. So when a judge seeks to bend circumstances and evidence to his will, the situation can become unreasonable and escalate quickly, depending on the size of the judge’s ego and other quirks or hidden agendas. Even if an outsider is successful in entering evidence into the record, that kind of judge will almost always ‘even the score’ by manipulating court procedures and the case outcome.153 For example, one judge ordered attorneys-only into his chambers for a meeting. I stood and explained that my clients wanted everything said in open court on the record. Nancy Meersman, a legal reporter for the Union Leader, was present in court, although the judge previously had ordered bailiffs to screen ‘visitors’ and exclude the press. He was furious (that’s putting it mildly). He ordered a two hour recess (reporters won’t usually hang out two hours) then returned to slam dunk my client in the afternoon session. There were no arguments, no discussion, no opportunity to present; he just barked orders that went into effect immediately. He angrily pointed his finger at my client, as he threatened to put her in jail on-the-spot. Sometimes, a judge perceives there is disrespect, even when the client or attorney’s tone is polite, rational, and legally compelling. It just pisses the judge off when litigants ask for what is their right. Including such rights as — not to waive a Constitutional right or not to take a plea-bargain and to have a public trial. Courtrooms can become quickly very dangerous for even calm, respectful, law-abiding citizens who assert a fundamental or other right. The ex-wives of judges club members each had an intimacy with a judge-husband that gave them first-hand knowledge that no matter how intelligent, educated, or politically powerful their husbands were, wives were at least an equal (and in some cases, probably infinitely smarter than their benched marital-partners.) Judges are just men who put their pants on one leg at a time, and the mystique of the court, robes, chambers, and the legal system was less for each ex-wife. So the universally biased treatment we received in divorce courtrooms was both patronizing and unjust. Trial judges each assumed and treated us as their intellectual inferiors (because we were spouses of judges — important people.) My divorce judge, for example, simply didn’t know or forgot that I wrote the state treatise on family law154 — so I knew well the mandatory statutory framework, which provided a structure for how judges are to procedurally handle a divorce case. But my case didn’t happen that way, (not even close) and I was treated unequally as the little woman all the way up until I became the problem. Once the ex-wives of judges finally met each other in person, (our first retreat was several days long, and we had a quiet, focused opportunity to listen to each other) it became abundantly clear that our husbands received a more generous treatment at law than we did. Each woman responded to the judge in her case in a different way, depending on her knowledge of how the system was supposed to work, her understanding of insider-dealing, and whether she was forcibly evicted from her home (which tended to rile each of us that experienced forcible removal from our homes.)155 But we each finally recognized and could quantify how much we were screwed over by our respective judges, in our end results. 153 I am surprised that the Court/Bar protects bad judges as a matter of class and institutional policy, regardless of how many times bad judges are reported and exposed. It may be that a relatively few judges, over long careers, cause most problems. That’s why access to court-big-data is so important for the analysis of whether individual judge problems get exacerbated by institutional handling and secrecy. 154 Chuck and I were listed as co-authors, so Judge J. Nadeau [hereinafter called “JNad”] inaccurately assumed, in his gender-biased way, that Chuck did the work of researching, writing, editing, revising, and annually updating our co-authored law book, and not the other way around. 155 Armed home invasions are covered in § 92.

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As the only lawyer in the group, I took it upon myself to analyze cases of others for patterns of judicial conduct. Wow. That was the conception of this book. At first, I planned to write a joke book — short and snappy, just like the David Letterman Stupid Pet Tricks. We could all laugh. But the problem is, this legal abuse isn’t a joke. The joke book will have to wait. Judges are destroying lives of innocent victimized people. And they don’t bother to notice or to care. But I did. Notice and care. If you know what to look for, it’s hard not to. I hope people may become indignant enough to exert a moral influence on the question of external oversight of judge behavior. So I began collecting stories. Three hundred (300) banker boxes of stories, articles and materials — about cases from across the country, about people who experienced travesties in justice at the hands of judges. I’ve been writing 15 years, and finally broke the material into three books — the background, tricks, and reasons; the 3-Branch relationships that were expected to balance systemic corruption and insure fairness and equality in the American system; and family law, (where destructive judges do the greatest long-term harm to individuals and society.) I don’t think my story is an anomaly — nor are the other ex-wives stories unusual. They just aren’t commonly recognized because this Ol’boy system doesn’t want them heard or recognized. Courts are currently set up in a new way to make legal abuse victims largely invisible. If people become vocal about using fundamental rights, they get called crazy names by the abusers, and sometimes get locked up.156 What’s crazy is not being allowed to talk about it. So, there were some dilemmas for the wives — about making objections but still showing respect to the presiding judge. There were some futile efforts and ineffective protests to stop the railroading of our cases in court. My replacement judge would shout at me, stop shouting! I didn’t shout, but have been speech-trained for years157 to project J and realized later that I though she simply wasn’t hearing or maybe not paying attention to what I was saying. So I said it again, with different words and more audibly, enunciating and projecting. She threatened me with arrest, and to have me forcibly removed from the courtroom. Since then, that judge has been removed for her own misconduct (years too late to help me or countless others.) I realized now that at the time, I truly hoped and expected her to listen and rule fairly, and that was simply not her insider mission. Ruling fairly violated her hidden agenda for the men she was beholden to — the judge bosses who appointed her and had their own agenda. Remember the Nuns. At the time, I took it personally but have come to recognize the behavior is what that woman judge needed to do to carry water. Her experience (of being recognized and valued by her supervising judges) came from using her mean-queen techniques,158 plus delivering the expected favor/outcome. If this same judge could threaten that Belle Isle Nuns sale of their convent was criminal, it was an easy jump for the same judge to calculate some way to criminalize me in a mere civil divorce hearing. I didn’t know the pattern back then, so I took it personally — but in a funny way, it wasn’t. Throwing my case, and the Nun’s case, and others — these were just another day’s work for this sad woman — who was incidentally removed from the bench for sleeping during trial. Her husband had already been disbarred. They were quite a couple — and for years they played the legal system for all they could, cutting and scattering a wide swathe of innocent law victims in their playing fields. So I caution in hindsight, it’s most important to maintain a healthy sense of survival first and always. Take a friend and never, ever go to court alone. Judges always have physical power over every litigant. The courtroom is designed and set up that way. It’s analogous to going to the doctor for a splinter removal and having your arm amputated, or ending up comatose. Let me repeat: never go to court alone. In the Milgram studies, 75% of dishonest behavior came from those who settled for the erroneous collective group opinion. So standing apart for your convictions may frustrate a judge engaged in illegitimate behavior. They have an innate need to go along to be accepted by the dominate group.

156 The crazy card is § 91. 157 As a child I had a lisp and my mother drove me for years of speech therapy. Later I joined Oakwood’s competitive speech team, where a great high school coach, Norman Shearer drove the team to weekly tournaments. Through competitive speaking, I made friends with some really extra-ordinary teens statewide — some of those friendships still endure. And I learned public speaking. 158 Initially Judge Gray, then JNad.

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TIT FOR TAT?

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Is a judge’s abusive exercise of authority (in any form) about the litigant? or about judicial control? What is the line between control and retaliation? Should there be a bright line that defines the edges of a judge’s exercise of authority? What ability does a party have, when a judge exceeds the line of legitimate authority? Each litigant in court has the right to expect a judge to be accountable somewhere for any judicial misconduct, and in a meaningful way. Promptly. Openly. So the public standard (for how judges are supposed to act, and whether the court system can to be trusted) should be both reliable and open. If the standard of conduct for judges is clearly known and followed, and if everyone sees and knows it, there is a lessened need for individuals to become vigilant in their own cases. But vigilance is one part of the mutual respect aspect in court proceedings. Being able to see and second-guess an oversight process is called transparency. When the process is clear enough to see through, the theory is — actor judgments (good and bad) are available for public view, and can be second-guessed including motives. If illegal, unethical or inappropriate, transparency will lead to remediation. It works (effectively) when the offense is dealt with publicly, for all to see. When judges who trade in illegitimate favors are held publicly accountable (in some proportionate way to how others are held accountable by the legal system) then litigants will have less reason for anger or frustration in court. (And less reason to appeal and complain.) If standards of conduct were more clearly defined and enforced, the public could rely on, for example, the judge’s disclosure of a conflict. And if no disclosure is volunteered, to rely on its absence. That is not the current situation. Judges do not make proper disclosures, and sit with impunity on cases where they have conflicts, (so, litigant anger is justifiable anger.) Are there bad people in court? Sure. There are criminals, the dangerous mentally ill, and other kinds of noxious people in court. Their bad behavior in court is probably not from justifiable anger. (But what happens if the bad person in the courtroom is the judge?) There is also great and provoked frustration by normal people, good citizens, patriots, Americans, who are treated very badly in court in an intellectually dishonest way. Routinely. Dominant judge personalities have a tendency to mistrust everyone who isn’t like them, and they tend to think in terms of elites and commoners. Commoners are not to be trusted because they are outside the judge’s circle. Judges also have a growing overactive paranoia (based on that elite inner circle mentality,) so when this thinking pattern is coupled with wanting to hide acts of judge dishonesty and bias — judges increasingly fear and want to control us — the ordinaries in court. Included also are critics and court watchers, who may try to figure out what new and illegitimate games judges are up to. It’s a downward spiral model of growth, leading to more paranoia and defensiveness by judges. I imagine that would be a stressful and expensive model to maintain because there are far more litigants and commoners in court than there are judges and prosecutors.159 Judges have brought this on themselves by implementing a system where there is no external oversight and no ability to make corrections or changes to their self-governing system. Now it’s up to everyone to fix it. One worst case scenario is reform will happen the same way it started — one case at a time. Or it can happen from internal awareness & consensus with judges, or by external shifts in public policy & oversight regulation. Institutional Change is always tough — because the elite in the legal system stifle new ideas, dissent, and change — all business practice-factors preventing qualitative growth. It’s time for a word of encouragement for judges — pruning the dead wood, clearing out the bad apples, taking stock of how well the system performs — will lead to respect from court-customers. Judges are not infallible. Change is not a bad thing for the system or for judges. Workloads overall will decrease with fewer appeals, fewer do-overs, and higher customer satisfaction with case outcomes. Many judges can learn how to earn user-respect. I think it actually is a simple process that involves insuring judges consciously know and follow the Rules of Law and stare decisis, and they provide equal application of rules to both parties, regardless of whether or not the parties have an attorney. Most individuals seek to be treated with respect and to be able to access their fundamental rights. 159 I for one think it would send a terrible message to arm judges or have a court militia to protect judges in court — it would be far easier to make changes to judge oversight to re-build trust in the system. There are other models besides this high authority domination model. The question becomes, how to interrupt and alter a downward spiral of negative institutional behavior?

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Collaboration on alternative problem solving methods can decrease the number of pro-se, and clear out some time-consuming kinds of cases that don’t represent high attorney-profits. Explore the use of gadfly and pro-se clinics, paralegal and attorney assistance, especially for pro se, to increase efficiency, and help educate those who use courts how to do that effectively. No one needs to be ‘the enemy’ just because they didn’t go to law school or pass the bar. The judges’ terror of criticism and new ideas stems from fear-based protectionist thinking — a system demonstrated over the next 400 pages to be highly flawed.

Continuing to arm the fortress, instead of inviting court-users inside, will perpetuate a judicial spiral of protectionism and more fear because (as noted in Chapter 1, footnote 2) judges are few; ordinaries are many.

Judicial bullying and abuse causes ordinary people untold pain and stress. I understand that is their point. But it is unnecessary, wasteful and merciless. Arrogant judge practices have become widespread across the country, and the separate case practices and illegitimate outcomes will burn energetically like separate little campfires across the nation. Most people will bank their pain while involved in a case (including their post-case appeals and complaints) but eventually someone will make a withdrawal from their pain reservoir with accumulated interest. And judges will reap what they have sown. Secret Shoppers for Judges. Currently, judges have no motivation to examine the system they created that works so well for them. And they have a high motivation to protect it from exposure. Responsible citizens everywhere have a vested interest in improving/renovating the administration of justice. I suggest a two-pronged campaign to increase the court’s motivation to inspire quality judging, to deter bad acts, and to rid the system of bad judges. Education and alternatives. Many people can learn how to alternately deconstruct what happens in court. Citizen incentives (to check out and review judge behavior) begins with just going to court to watch –a free entertaining pastime, well suited for students or the under-employed. Court-watching could be a public service if people knew what they were observing, and had a check-list and a local place to report their observations of judges. Citizen mistrust might largely disappear if there was transparency and responsibility for poor and bad judging. Judges should want that as well. Maybe it’s just a finite number of judges making everyone look bad. Judges just need motivation to prune their dead wood, the unfit, and the imperial from their ranks. If the punishment for bad judge behavior is public censure or removal from office, the public can respond accordingly. If it’s suing the judge personally, courts can expect that as well. Transparency allows the public some power to correct what is perceived to be rampant abuse. Currently, there are many insider-disincentives to notice, report and make judicial abuse part of the public record. Investigative journalism is increasingly popular. Perceptive people in court have come to believe the either they must act for themselves, (because their lawyers can’t) or else give up and submit to tyrannical treatment in court. But there are other avenues to institutional improvement and many benefits of change. Baiting Behavior. Under the present scenario, a judge may issue increasingly hostile and unreasonable statements and orders; and make humiliating and hostile remarks toward one party. I have observed judges that seem to taunt their victims to resist oral and mental bullying. The judge postures her ‘superior power over-you’ position, and then defies the litigant to object in some way, so the judge can interpret the objection (to her unreasonable judicial treatment) as defiance of court. The judge, already angered and emotional, jumps on any opportunity to initiate some harsh punishment, which may include fines and/or jail,160 or loss of a case, regardless of whether or not the underlying behavior, or act, or omission was criminal or even hostile. I write this as a warning about hidden snares, waiting to entrap an unsuspecting litigant. All the more reason never to lose your cool in court.

160 A good example is Attorney Elena Sassower’s extended imprisonment without charges or trial for trying to testify at a public Congressional hearing about a federal judge appointment.

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27 CONTEMPT OF COURT — SOME PRELIMINARY IDEAS

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2

Rarely is the phrase ‘contempt of court’ used in civil court — more often, the phrase Order to Show Cause (for why a party should not be held in contempt) means another party has filed a motion to enforce, and this phrase gets used in court as a shorthand way of formally invoking a procedure to discipline someone for disrespecting a judge order. However other times, contempt orders get issued on the spot — without the formality of issuing an advance notice of order to show cause or holding a hearing or even giving notice. It just erupts (seemingly spontaneously from the judge.) Sometimes, the order is not ever labeled contempt, but the resulting orders rely on contempt power, summarily exercised (often in a confusing rush of courtroom activity and words) by the judge, when no other excuse or authority applies.161 This requires an ability to figure out which contempt orders are legitimate, and which are abusive and/or illegitimate. What actually does it mean to disrespect a judge order? Does that mean dissing? (a colloquial verb originating in African-American youth gang culture, which indicates someone took offense with another’s looks, actions, reactions, or language). What if the judge’s order is vague, unclear, impossible to perform, or relies on an untrue assumption? Does it make a difference if the judge just made up the assumption? (Like in the Tommy D. case, where the judge ruled the defendant became deaf after he went to prison?) What if the judge didn’t follow basic Constitutional mandates before making a contempt finding and order? What have other people done when the judge’s use of contempt power is fundamentally flawed? What is civil disobedience? Is civil disobedience ever justified? Are there limits on a judge’s authority to enforce his order? What about enforcement of a non-order? (When there is no order?) (A variation is there is an order but it is illegitimate.) How does non-conforming behavior (or refusal to conform) relate to what a judge does in making additional orders to enforce the first so-called order? Courts are currently happy to treat their exercises of contempt power like a rubrics cube. We are going to look at different aspects of the above list using a relational deconstruction and analysis of cases involving alleged contempt of court. I reference a number of examples, including the Bonser and the Douglas cases in New Hampshire.162 I believe there is a third NH case, making a trilogy. BB&D refers to Bonser, Blaisdell and Douglas (three New Hampshire cases over 20 + years involving the infamous Rockingham Courthouse.)

CONTEMPT FOR MONEY — A TRANSFER OF WEALTH Orchestrating a contempt fine is something I came across in two cases involving the same Chief Administrative Judge of the District Court.163 His magic-wand was an ongoing daily ‘contempt fine’ — payable to the other (always an Insider) party. It is insider sorcery to be able to manipulate contempt of court power, notwithstanding the finer points of fact and law. The fine can run until the value of the asset in dispute is reached, or the willful party caves. Hypothetically, then the disputed asset can be transferred to the other party in lieu of paying the contempt fine. Two cases, more than a decade apart, involved the same two players. —

161 Contempt of court is an area of judge handling highly susceptible to manipulation. Contempt is covered also in Chapter Four — coercive money/asset transfers, and again in Chapter 6, as a method of manipulating a trial outcome. It’s the great-granddaddy of judicial arrogance. My treatment is by teaching examples — but to teach a thorough history and practice requires an entire treatise. Sir John Fox wrote a dense but enlightening treatise, as a starting point for those who want to study contempt authority and judge misperceptions about their ‘inherent’ authority of contempt. 162 See the progeny of Bonser cases, including Terry L. Bonser, Mary Bonser and Cedar Waters Village Partnership v. Town of Nottingham, NH, et al., U.S. District Court, District of NH, Docket 96-343-M. The original state matter was Town of Nottingham v. Robert Bonser, E-438-81 (1981) — case that extended more almost 30 years, and was subject to numerous sneaky tricks during that time. 163 Hereinafter, name and title are shortened to “JNad”.

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One was a zoning dispute, where the defendants were sanctioned with daily fines against the owners, who were jailed off and on for a year. It may have been envisioned by the town attorney (the judge’s uncle) that parents and daughter would lose the property in contempt. The judge forgot to tell anyone of his relationship with the town’s attorney. Much later, he said he just assumed everyone knew about it. That case evolved over two decades. The second case was my divorce, where the same judge used the same technique to order me to give up my trash collection by assessing me $500 a day as an ongoing contempt fine. Four private investigators had collected trash from two sets of communal dumpsters. The trash had yielded evidence of personal and professional misconduct, and several smoking gun original documents about my husband, the former judge. Mutual aspects of the two cases involved not only slipshod short-cuts to the process of making a finding of ‘contempt of court’ (lacking in basic fundamentals of due process, hearing, and fact-finding proof) but also ordering extrajudicial enforcement. There is no foundation for this kind of unconstitutional extra-judicial order in American law. In one case, the judge attempted to order out the National Guard164 to enforce orders by bulldozing down buildings.165 In the second case the same Rockingham judge deputized his attorney-friend to enter, search, seize and destroy papers from the defendant’s home and law office, [plus the homes of (non-specified) relatives]. He also ordered the use of whatever degree of physical force was necessary, along with hourly payment, plus an ongoing daily fine. Since this was my house and my relatives, I’ll expand on this unique home invasion order later. Three purposes. One aspect of this scheme is to potentially transfer a valuable disputed asset as a contempt penalty before trial. A second is it rids the court file of pesky impeachment evidence. And lastly, it serves to teach ’em a good lesson in respect for his authority. What gets avoided on review — is any real deconstruction of what facts and law (if any) the judge asserted to make his ‘contempt of court’ ruling in the first place. The imperial aspects get highly manipulated in cases involving Insiders. I discovered judges don’t even care about simple due process — which in contempt punishment cases is wussy anyway.166 So contempt fines become nets that capricious judges sometimes use to trap people. Contempt might be a matter of a party not non-performing or not ignoring a judge’s earlier order. I’ve included Contempt generally in this section on bad judge acts, and again as later section examples, although not all contempt results in jail or a $$ fine. Sometimes, judges just lock people up (on the spot) as a discipline to show their domination and control. Or to teach a lesson in so-called ‘respect.’ Or to throw a case outcome by dismissing one party’s claims as so-called punishment. The variations are endless. Discipline by contempt is complicated law, frequently misunderstood and misapplied, even by judges. Judges often misquote and believe that their contempt power comes from doctrines that are “time immemorial”167 and are therefore a judge’s right without limit. [Wow. Both these assertions are actually really not true.] So judges contrive to use, or threaten to use, contempt as part of an intimidation program that has nothing to do with the case, and everything to do with ego and justification of a subjective outcome and/or punishment. Contempt is a kingly power — used to circumvent laws and rights of people who are not kings. Original contempt started out as amercy ($), and amercements paid to avoid jail. There also were fines ($) and imprisonment, which might 164 U.S. Constitution, Article IC, Section 4, Clause 2 allows for the use of U.S. forces under the President’s orders for “protection from invasion and domestic violence.” 165 I found one act in America where the National Guard was called out to destroy buildings and kill citizens. A commanding officer of Fort Stanton, named Dudley, favored one side in the local Lincoln County War of 1877-1879. He took it upon himself to call out the National Guard against American citizens, and led the charge to shoot, burn and destroy a log barn shelter and the defenders of one side of the dispute. Susan McSween, wife of a defender, filed charges against C.O. Dudley. The U.S. Secretary of War ordered the Sixth Calvary to swoop in and arrest the Commanding Officer and confiscate his 86 guns and 5,000 rounds of ammo. See en.wikipedia.org/widki/Nathan_Dudley, and en.wikipedia.org wiki/Lincoln-County-War. 166 See the progeny of cases involving Town of Nottingham v. Bonser, Rockingham Superior Court, NH; and Douglas v. Douglas divorce cases, Merrimack and Rockingham Counties, New Hampshire. Both of these case spawned dozens of docket numbers, appeals, new trials, and years of fighting to overcome bad rulings from the same judge, including the contempt-transfer-of-assets. In each case, we first disputed, then filed/referred the judge for supervising control, but it required voluminous interlocutory appeals and pleadings to combat (but not overturn) the so-called contempt rulings. In the end, I merely evaded giving up the trash and the trash issue disappeared in the court black hole, along with my arrest file, and all my money attached in my bank accounts. Poof. 167 Perhaps the most misquoted misapplied axioms in judging.

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CHAPTER

be indefinite, or for a term, and might be shortened if the prisoner was an agent of the king and agreed to make an avowal of an office. There was also banishment or excommunication. Something to make the transgressor a pariah. All these were punishments at the king’s discretion, (or those of his officers) usually practiced in a Star Chambers, where whim and caprice were the two legal standards.

2

In American, apparently many judges still err in their application of contempt tools as a punishment for perceived disrespect of orders or person, (or as we will see, to control litigants who question or object.) Remnants of kingly acts of intolerance and displeasure, means modern legal factors used to make findings of law and contempt orders — for fines, incarceration, and dismissal of a party’s claims in court — get abused at the whim of some judge with an adolescent ego. Normal consideration (like whether or not the contemptor is an officer of the court, or a party or a stranger to the action) isn’t determined, so penalties for each of these separate classes, cross over limits to judge-authority, and transgress into other categorical powers. Very democratic, you might say, anything called ‘contempt’ gets treated equally, but that’s exactly the missed point. Since the export of English law to America, judges can’t just slip back to making Kingly Orders based on anger or whim or insider agenda. American Revolutionary concepts and rules of law govern this side of the ocean, but in modern practice, that is not always the attitude and practice of all judges. Only on review (after the fact) do other judges start pushing the trial judge’s actions into ill-fitting little pigeon-holes to confirm (or cover over) whether or not the contempt of court order was a valid exercise in authority.168 The combinations of whether the alleged act of contempt was direct or indirect? Or whether or not the person charged was entitled to a jury trial? Or trial without jury? Are fines fixed or flexible? Or could an accused instead be summarily found — by a kingly pronouncement — to be ‘in contempt’? Rarely if ever will the later-review indicate that the judge acted in error and abusively — to illegitimately destroy someone’s rights in court.169 Review courts value deniability. So the review itself becomes part of the muddle, and this fallacious foundation can be traced all the way back to the erroneous handling in Almon’s Case in 1765.170 It was more important to do what the King’s officers wanted — rather than being logical, consistent or fair. Remember what happened to the innovative Thomas Cromwell when he could no longer innovate against his King’s excommunication from the Roman Church? This can be a deadly business, disagreeing with imperial authority. I wrote the preceding paragraphs containing legal words of art, not to teach readers some elements of contempt law, but to demonstrate that contempt is complicated, and that many (if not most) judges don’t’ understand it or strictly follow the rules — especially when they get angry and involved in manipulating an Insider courtesy. They may also understand they were appointed into that case to reach certain outcomes, and along the way, misjudged that the case target was a rube. That scenario leads to the misuse of contempt power as a way to reach the intended outcome, but hide the extraexercise of judge power in a jumble of legal sounding process. Specific examples are scattered throughout the book as this is the most complicated area of impulsive judicial behavior, and because traditional reporting often contains language of self-justification and manipulated rationalizations. It also generally avoids correction on appeal as well as discipline in the internal court disciplinary process. On the other hand, citizen non-cooperation is a concept about non-conforming behavior that traces back to 1662, when 2,000 clergymen left the Church of England rather than submit to the Act of Uniformity. The new Protestant dissenters rejected the King’s new doctrine, discipline and policy, and many migrated to the New World. Their refusal to conform to some practice or course of action was called civil disobedience. Gandhi and his followers practiced noncooperation by boycotting government authorities, including courts and schools. Modernly in America, the right to

168 A real judge problem develops when someone is illegally incarcerated and the judge has to worry about how to release them without losing face, or inspiring a civil rights lawsuit. Or what if they die while incarcerated? Stay tuned. 169 Summary process skips all the due process notice, opportunity, and other Constitutional rights. Whether a judge can use summary process legitimately depends on a matrix of elements — starting with the status of the party, the location, and whether it is civil or criminal? What I often found that in summary contempt outcome cases, the judge, in the heat of courtroom battle, misapplies judicial authority to have the final word and to smack down a litigant — by using contempt of court tactics — whether appropriate or not. It’s the ultimate slide to a desired outcome — because I said so! 170 Sir John Fox treatise, supra at fn. 50.

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Acts of Conscience are referenced not only in founding documents, (see one Constitutional example at Appendix A) but civil disobedience sometimes includes those who refuse to pay taxes, or eschew federal jurisdiction and law in favor of States Rights, especially in the American West regarding land and property and water rights (foundational rights and cornerstones of civilization.) I visited Walden Pond in Massachusetts, (whose owner wrote the American bible about civil disobedience) and found a tiny idyllic footbridge over the pond surrounded by subdivision development. Sigh.

HOMEWORK THREE — OUT OF BOX THINKING ABOUT BAD CONTEMPT RULINGS A conventional post-mortem process would start with a review of the judge’s FOF&ROL and then would apply law and procedures from other cases. We’re not doing that traditional game for this analysis. This is an alternative approach to test for rationality and legitimacy by looking at and making comparisons of judge treatments. Focus first on listing issues to think about — gut feelings that appear to be wrong, but you don’t know exactly why. Write them down. Then begin clarifying which facts are relevant to each narrow issue, then we’ll later learn how to find and trace the logic or lack of logic used. It sometimes helps to make a comparison how the judge handled the same issue for each side (requiring a broad overview of the case.) Apply plain meanings and common sense, then a relational analysis. We’re dividing the case into little compartments, but only to get a handle on a larger strategic picture. Note this approach largely omits legal research/case law — which are judge interpretations subject to bias and non-objective rationalizations. While it’s good to know, for example, the court rules (how many days to file an answer, etc.) keep in mind that judge often don’t apply the same rule to what the insiders do, (or if an insider misses or runs afoul of a rule, the mistake gets overlooked or minimized away.) So don’t approach this as an attempt to match your analysis to the way judges and attorneys do it. You can’t win taking them straight on because Club Insiders twist the process to facilitate and cover up for other insiders. This is an alternative way of thinking about what happened in court. It takes time. As examples, we’ll trace the handling of several cases across three chapters. This section is about two beginning case examples — both basic exercises in an ongoing process of deconstruction, using an unconventional process. I picked these two cases because of unreported similarities in each. They happened about twenty years apart. The first example comes from a round of Bonser zoning and civil rights cases. The second example was my trash case, and later my at-home arrest.171 Trash was a discrete part of the D&D divorce. (Sort of like a case within a case.) The elements and processes mimic each other, and with other elements of intimidation found in other ex-wives of judges cases. Here are some basic facts leading to initial (alternative-thinking) deductions a. Both cases involved the same two judges.172 b. Both were docketed in Rockingham County. c. For each case, JNad failed to disclose multiple conflicts of interest. When eventually removed, he acted affirmatively to specially appoint his own successor. (Thereby, as we will see later, keeping control over the case handling and the case outcome.) d. In the first district court case, he conscripted Chuck Douglas, who at the time was sitting as a judge on the state Supreme Court. Chuck took a paid vacation to preside

171 Two appeal decisions can be found at Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282 (1978) and Bonser v. Courtney, 124 N.H. 796 (1984), but there is a larger, more vindictive history found beyond studying the appeal. The Douglas v. Douglas line of cases and appeals similarly have unreported elements of bias and targeting. Both cases call into question how scholarly (or manipulated) the outcomes actually are. My case have docket numbers in Merrimack and Rockingham counties, plus a plethora of slapp-suits and professional conduct docket numbers. Unfortunately, my arrest case got lost in the system and was dismissed or voided before trial and has disappeared. 172 Judge Joseph Nadeau and Judge Chuck Douglas.

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over a contempt hearing as a lower court judge. (Unusual? It’s like having the President of the United States take a vacation to sit as a U.S. Supreme Court judge for just one case.)

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e. Each defendant was in pro se, with a non-lawyer representative. This arrangement

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visibly consternated the judge, who suggested each should hire a bar attorney and then affirmative initiated acts to remove the non-lawyer helper. (Bar attorneys are controllable, and a judge can counted on them to overlook bad judge acts that noninsiders don’t overlook and get noisy about. So in a manipulated case, it’s more helpful if everyone lawyers-up. That way the judge can exert control, when necessary, to keep objections and criticism out of the record. As long as everyone gets a piece of the action, most lawyers can be rewarded or frightened into going along with a judge-insider outcome.) f. Chuck wrote as part of his decision in the Bonser case — “it is unfortunate that the defendant is being misled by Constitutional illiterates who seek to change the clear meaning of our fundamental charters.” [For those who don’t know him personally, this is a classic example of public belittlement and sneering. That is an element of control and marketing-for-damage-control in both cases. That kind of fact shows up only in a big picture analysis.] g. Each case involved alleged contempt of court in a civil case — with underlying disputes about the validity of the judge’s exercise-of-authority. h. Each defendant was assessed a daily ongoing fine to coerce compliance with the underlying

judge

order,

followed

by

extra-judicial

enforcement

orders.

[Bonser

repeatedly was arrested and jailed in court for contempt of orders; Douglas’s fine was for trash, and she was arrested later out-of-court for contempt of letter (from a sheriff/city prosecutor).] i. Both cases involved non-legal arrest/incarceration procedures. [The first also involved calling out the National Guard; the Douglas swat-team enforcement gave extra-ordinary non-judicial law enforcement powers to an attorney and a deputy sheriff and the Concord city attorney.] j. Both cases demonstrate manipulative judicial handling and a parade of insider accomplices agreeable to supporting the judge. The judge was personally engaged in teaching an outsider a lesson in intimidation. That is my conclusory idea, supported by a relative weighing process. Remember, this is an alternative process, and my gut feeling conclusion (that we were being unfairly taught respect for a bad judge) is being examined from the standpoint of an outsider. Call this an outsider POV (point of view). Warning: it is tedious, but an essential process to deconstruct what appeared to have happened, versus what actually happened. It’s like peeling back layers of an onion only to find a boiled egg at the center. It doesn’t make sense at law. k. If you read the appeal decision of my case, it sounds like a different case, because appeal court judges conceal trial judge actions in legalese, and they pick and omit ‘facts’ to support the desired insider-outcome, and to protect other judges under the unspoken country club rule. [See § 2.] Appeal techniques are contained in a different deconstruction process in the last chapter. Appeal judges rely and operate under a veil of authority to establish want they want the outcome to look like to the world. So, for deconstruction, (just like reading the U.S. Constitution) do not read a summary version. Do not analyze the appeal results yet, but first study the original case and trial records.

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PRELIMINARY OUT OF BOX THINKING If you are an attorney, begin by listening to what the client says. Attorneys almost always cut off their client’s stories and miss important parts because they like to save time and pluck out only the essential law elements. [Note: Like the fat medicine man who served himself first, carefully picking out all the meat morsels from my lamb stew, leaving vegetables and gravy in the tureen. He thought he was deserving and superior to his Anglo-wife, other family members and me, his surprised hostess. Piggy isn’t a word reserved just for white men, or just for eating. It can involve listening, as well.] In normal company, this kind of selective greed is shocking (in eating or listening). And many attorneys don’t like to listen to these stories of clients. They already know the outcome, and billing is easier and more efficient without a client underfoot. But clients often inherently recognize devious handling and a manipulated outcome, but will describe it in terms of how it made them feel. Often they are traumatized. They will be accurate, but using a different language, and probably a more emotional style that includes lots of adjectives and opinions. If possible, listen to the transcript audios, read the court file, and read the client file to identify what’s missing from the court file, then read the transcript with the same idea to see what’s missing but should be there. You also are reviewing for what is verifiable on the surface. The timing, and who said what, also may be important. If the task is too big for one project, break it into smaller topical segments and do each one only as necessary. You may not have to review it all. Like active listening or active thinking, this is hard work and will make you hungry. Eat protein, not junk sugars and carbs that will call to you, but will make your brain fuzzy instead of clear and sharp. I also fondly rely on chocolate-covered express beans and recommend overnight sleeping on all early conclusions. The process you are engaging in is called ‘term of thought’. You are seeking results from a process of data collection, followed by thinking, with a conclusion or upshot that comes from following an entire train of consciousness. Ordinarily, judges do not utilize this process. This is a POV the court evades review. The insider-approach to review of a judge’s case handling comes at it from a different POV (one they are taught in law school). It’s not better, just different. The two case out-of-box deconstruction examples are included for readers to follow along in assessing a court experience — (what outsiders heard and saw) using an (alternative) outsider approach to what happened in court. What happened is not what gets written and recorded by judges in orders and appeals. And generally it’s not what’s written in briefs. If people are to figure out what really happened a case (in order to determine whether or not the judging function was legitimate) then they need to be able to figuratively back up to determine bare facts. What happened in court and behind the scenes that influenced the judge and therefore influenced the outcome? Those fluent in critical decision-making and logical reasoning, may find this alternative POV stage easier than other kinds of thinkers, (including those who are naturally more easygoing, emotional, or creative in their thinking processes.) But the first group frequently misses things — because they take thinking-shortcuts, and don’t go to deeper levels beneath a shallow surface. Also, it’s important to see what is missing — what should have been included in the outcome to insure fair process. In short, I hope to help reader learn how to cut through the mystique and babble of the courtroom. This POV is not illegitimate, as insiders would have the world believe. In fact, the results represent a far more legitimate and reliable form of justice than what the legal system currently delivers under its heavily-burdened incestuous system.

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USING MY OWN CASE AS AN EXAMPLE Despite what I anticipate critics might say, my case deconstruction is included not because I am obsessive about it — (in fact, it is reluctantly that I use it — this stuff is still

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personal. Sometimes people never fully recover from the pain, trauma, and invasion of

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privacy inflicted in a teaching case. I consider myself blessed. Judges definitely alter the people they govern by the pain they inflict. When it is done as a favor, or from spite, or illegitimately, it requires open review. Using parts my own life may help show a little of the progressive human impact caused by mis-use of judge authority. This is not well examined in law literature.) It is because I know this material and my case is a fairly good comprehensive example of tricks used repeatedly by judges across the country when they sit on ‘special-handling cases.’ Cases where there is an institutional-favor owed that affects the case outcome — but the judge can’t get to that illegitimate result by following established rules and law. So first, my case use is to demonstrate the basics of judicial over-reaching. The second reason is because first-hand is not how the legal system reviews itself, and my goal is to present a non-customary critique of the judge system. Judges use a system that tries to keep them a safe distance away from the pain and harm that judge-work creates. The theory is it makes them more objective. That theory is bunk. By removing the pain factor from the natural cause and effect cycle — the orders a judge creates for others to follow and endure, allows judges to evade responsibility for errors and harms they create from defective work — the human hurt they cause, and the lengths people must endure to try to correct bad judge work-mistakes. The objective-distance theory is as illegitimate as the special handling system that generally avoids judge discipline. The harm and pain caused by careless and inept or biased court work is a fundamental measure of a bad system design. Like a pill manufacturer who ignores deadly side-effects; or a company executive that makes a cover-up policy resulting in multiple deaths; or Presidents who avoids disclosure of an excessive number of war casualties caused by secret off-thebooks operations, this book might get reader hands a little dirty, because judging is another dirty business.

Almost anyone can learn how to study contempt of court cases, assuming life assigns a motivation to want to do so. Go first to the source material — the original case transcripts, records and exhibits — not the appeal decision, to understand what judges are doing to manipulate facts and outcomes at trial. Tip: Expect the problem areas to be clothed in obscuring legal sounding language, making the net bottom line difficult to discern. At first blush, an order may appear to be a nearly equal division of property, for example, but closer scrutiny may show that all the assets or funding to the one party are purely illusory. The property awarded to one side comes with debt liability, for example, while the other side takes assets that are free and clear. If the free and clear asset generates income (the family business) but the asset to the other side assets has no income and high cost of maintenance (the house)` that inequality crosses over two boundary lines in law — one for support; the other for distribution of assets. Each category requires not only separate handling by the judge, but balancing for fairness within the separate segments — not muddied together to avoid the legislative fairness and equality requirements.

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Without cooperation and help from the bench, scorched earth attorney tactics would not survive. However judges are inclined and pre-conditioned to give extreme deference to more powerful contacts, connections and fees. By nature, judges may enjoy uncivil, even emotionally brutal litigation tactics, and will cooperate and encourage a prosecutor (or a team of ol’boys) to pile courthouse abuses on a pro se or under-represented defendant. The combination of judicial and lawyer energy can be like a chemical addiction (and chain reaction) that focuses superior group force against a weaker single target.173 Remember the Stanford prison study? Tip: In a case with a known insider, scrutinize facts surrounding the judicial assignment; if nothing seems amiss, check again. The most important tool in these cases is to assign it to a compliant insider judge who understands how the case is supposed to turn out. After figuring out if it was a random assignment or not, we’ll analyze how active the judge is or becomes in management of the case, and which side the judge favors. Gut talk. I’d also like to suggest you check in with your gut. Does it feel anything suspicious? Don’t ignore or dismiss it as mere stress. Note it affirmatively, then slow down to be watchful. And careful. Remember to breathe. Deeply if necessary. Write your observations — don’t rely on memory. Latent bias is when small acts, (that occur over time) each have a negative effect directed at one side. They construct an unbalanced playing field in court. The term latent means the judge can’t recognize (or won’t acknowledge) his/her own pattern of favoritism, but objective reviewers can. My goal is not to make average citizens into lawyers, but to train them how to identify and quantify judicial abuse they see in court. Without quantifying the occurrence and relative weight of bad judging, and without a review process that assesses the cumulative effect of bias on a case outcome, the system will become even more corrupted. Successfully sinister people are those who can be charming on the surface but are capable of mind-boggling acts of deceit for control or personal gain.

EXAMPLE ONE — THE BONSER CASE(S)174 Mary Bonser succeeded her parents as a defendant-turned-activist in a zoning case involving her family’s business — vacation resort situated around the state’s largest spring-fed lake.175 The family ran a Christian family nudist camp. Initially, they were charged with a building code violation and defended against the charge, but were found in contempt and jailed off and on over a year with a daily ongoing fine. Meanwhile, the judge proposed calling out the National Guard to bulldoze the buildings. The legal battle lasted more than two decades. After the death of her parents, Mary filed a civil rights claim. I had no idea of this contempt of court case existed as the so-called role-model for contempt in New Hampshire, until Mary and I met at a legislative hearing on a bill about judge reform. Chuck had played a pivotal role in the JNad-Bonser contempt case, just as JNad later inserted himself into Chuck’s divorce from me.176 173 As I write this, it sounds like animal behavior. Yet I saw it once in a child-abuse charge against the State President of the Gun Owners Club (a financially, educationally, and intellectually high functioning Christian couple that home schooled their six children.) The family asked supporters to show up at the Courthouse, and a large crowd appeared on the sidewalk and court hallway (although none were allowed inside the court room.) A television crew also showed up. It was one of the quickest resolutions I have ever obtained in this type of case. It still was defense work — but the charges were manipulated, and the caseworker both lied and forged her department investigative reports. I had to first discover and secondly demonstrate that in court. But relatively speaking, the bogus child abuse charge was dismissed quickly, I suspect because a perceived ‘weak defendant’ demonstrated an impressive strategic show of force against the state agency/group. 174 The Bonser case was the seminal case in defining civil versus criminal contempt in New Hampshire. What made it more interesting was the ‘vacation jurisdiction’ involved in this case. Chuck, as a state Supreme Court judge took a week’s vacation from the highest court, and he vacationed while presiding over a lower court hearing on the Bonser civil disobedience matter. He crafted this interesting order. Of course, when the case went up on appeal, he had to recuse. This ‘vacation jurisdiction’ was apparently the brainchild of the chief administrative judge, after being forced to recuse. Twenty years later, the same two judges played together in my case. Like ol ‘times for them, but I was clueless at the time. 175 As a bill-drafter for the state legislature, I dealt with the state and federal regulations about water that was not-spring fed — so the element of a large body of water not subject to federal law made this property especially attractive to Nottingham Village. 176 Chuck had three prior divorces. One he went offshore so the press could not find his court records; the others were of interest to an investigative press, which he wanted to avoid in this, his fourth.

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I’m not proposing to legally analyze the entire complicated history and process of these two contempt cases, but they present facts and parallels and clues helpful to the overall search for judicial fairness and respect. Judges have manipulated contempt powers ever since the Magna Carta177 wrested the first civil rights (for noblemen) from the tyrannical King John in 1215. So these modern cases are offered to demonstrate a kind of manipulated ‘irregularity’ in procedure and handling that appears (unreported) in cases where there is often a flaming judicial ego and lack of respect for a non-dominant party. There are parallel judge abuses in both cases. This includes the judge’s initial failure to disclose actual conflicts of interest at the start of each case. The first focuses is how a contempt order (before studying the legitimacy of the FOF&ROL) can be used to transfer the value of the case over to the other side in advance of trial. Here, contempt fines represent an inside way to shortcut an established legal process (with built-in safeguards to protect civil rights), to obtain assets and title without trial on the merits. (A variation is for the judge to dismiss defendant claims or defenses by summary judgment of contempt of court.) 1. For each case, the judge had one or more undisclosed conflicts of interest. In Bonser, he was a second degree consanguinity (kinship relative) with the Nottingham town attorney. The dirty-hands aspect of concealing an improper influence (whether it’s sex, relatives, favors-owed, or a personal friendship) taints each of these cases from the start.178 2. A daily on-going fine gets ordered. (remember, the legitimacy of that order is reserved for study at a later stage.) 3. The money fine goes not to the court or state, but to the opposing party or their attorney. Assuming the targeted victim does not cave in, the judge may be able to transfer the underlying asset as payment of the penalty. That transfer will likely evade being overturned by appeal. And, with the asset gone, there may be no need for a final trial, a final order, or appeal. Sometimes, the court can take assets this way, and owner-victims just give up and limp away, not to be heard from again. 4. Next, the Bonser case gives a glimpse of how judges help each other. It was unique for a sitting Supreme Court judge to take a vacation to sit on a lower court judge. It’s not been done since. 5. Finally, these types of cases (where a recused judge takes on a personal interest) can turn into an endless pit of manipulating cover-up that consumes decades of time and money. Either way, fighting a weighed outcome is a lose-lose proposition for the outsider.

EXAMPLE TWO: MY ONGOING DAILY FINES FOR TRASH Twenty years after the beginning rounds of the Bonser cases, the same two judges were involved in another case that used the ongoing daily fines trick. JNad assigned himself to the case. Chuck had just filed for divorce. This time the ongoing daily fine ($500/day) was ordered against me. I refused to give up my trash.179 Because the divorce filing was by ambush, I had no information about what was happening at the start. I didn’t know Chuck was fire-selling off my interest in our firm, or about any outside relationships. The divorce didn’t make sense, so I did what wives and divorce attorneys do — I hired a group of private investigators. Of the four hired, one suggested recovering the trash. I paid people to harvest trash from common community dumpsters (Chuck’s new condo, plus our old office building.) 180 Then my staff and I reclaimed it. I spent some time researching trash law and abandonment law before I approved this collection, and concluded the trash converted to my property. JNad’s orders for me to give my trash to Chuck somehow implied trash was stolen. It was his way of protecting an insider by destroying potentially embarrassing evidence. The reclaimed documents

177 See the treatise by Sir John Fox, The History of Contempt of Court. 178 Maintaining a higher standard for judge behavior was his tune sung at multiple JCC meetings, where he hounded the JCC for subpoenas forcing the appearance and testimony of two Balsams judges for secret trysting. See § 22. 179 Although I researched the legality of trash collection before any pickup …I never had any opportunity to present the finer points of trash law to the judge, (who avoided hearings and the Rule of Law, but instead ruled from the tips of his clogs.) Both judges performed intellectual backflips to contort trash pick-up into an implied criminal action. The trash story is continued. 180 Even though I was a signor on the lease, I went to extra step of obtaining a permission-letter from Christian Mutual building manager Doug Noyes to remove trash from the C-M building dumpsters.

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demonstrated preplanning, asset usurpation, devaluation, and other criminal misconduct (although no one in court knew that.)181 Without due process, the same judge again crafted a cumulative daily fine sanction as coercion. My double bind: My impeachment evidence would be lost if I complied, or my court-held funds dissipated if I didn’t. The ongoing-cumulative-fine-trick doubles the chance of gaining an asset by contempt fines before trial, plus a bonus of destroying incriminating evidence. Taking my assets after trial would risk more and cost more, and the potential embarrassment factor was unknown. Plus, on appeal, orders can be reversed. If the asset can be transferred to the other side before trial, there are lots of insider advantages. It’s like getting a stipulation — there’s no record to overturn on appeal. Regardless, the contempt fine process provided two bites at the apple, and skipped over all the messiness of due process. My divorce also had another (separate) double-whammy component — JNad initiated an order for anticipatory contempt against me. He fashioned an unusual order that boxed me into a lose-lose situation. That is a homework deconstruction in Chapter 4.

28 EXPLOITING THE OFFICE

§

Collateral mis-use of office happens when judges use their judicial position for rewards and favors, or to threaten, punish, or influence in court & non-court matters. Bribes182 are the most common straight-forward form of exploitation of office. Although payment of money is still done, most of the payment practices are now a more sophisticated form of bribery. With money payments, a lawyer or bagman pays the judge or his bailiff, and all of the rulings will favor the payor. This Chicago-New York-Mafia style payoff is as crude as the other gangster techniques of these noted locals. Payoffs are still practiced today, as examples of how a stranger may buy or influence a judge’s decision.

MIS-USE OF THE POSITION TO INFLUENCE & POLITICAL POWER-TRADES More prevalent is power-trading, which acts can span decades. Since the implementation of the bar system, promotional and career favors are exchanged beyond local courts, and over lifetime careers, and the tally is largely mental acts of favor. The expansion in the favor-network is harder to trace. As in life, follow the money trail, because judges’ won’t be offering up information about their lifetime affiliations and unspoken legal-social obligations. A reverse trail is to follow lines of attorney discipline activity by state bar associations. For example, not only can insiders expect free passes, but bar lawyers can be punished through career-wrecking disciplinary actions. A judge may simply initiate a referral of attorney misconduct to the bar committee as part of the exchange of inside favors.183 It’s not hard to track the handling and results. This is an insider weapon with an incalculable harassment value.184 Even most frivolous bar complaints will keep an opponent stressed and pre-occupied defending himself. Diversion is a military strategy to keep opponents unfocused. Chuck drafted and diverted more than a dozen ethics complaints targeting me during our divorce. Even though filed by others, I recognized his language, writing style and litigation technique. The point is to throw quantities of mud, waste resources, and wear down and discredit an opponent. 181 Perjury, adultery, record and evidence spoliation, and collusion to devalue joint and separate assets. 182 See also § 23 on criminal acts of judges. 183 The professional conduct case against State Senator Sheila Roberge’s daughter appeared to me to be a retaliatory court process, pay-back for the Senator’s legislative activism in the investigation of state Supreme Court judges. 184 Fine conscientious attorneys have been stressed over this underhanded litigation tactic — I know of suicides, some who quit law, others who used mental health counseling and drugs to deal with the stress of peer-ethics attacks. This is a unique group of people lacking in many of the social qualities and virtues of most Americans.

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Tracing ties in the ol’boy network to demonstrate undisclosed relationships suggesting favoritism and bias involves detective work. For example:

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When trying to uncover personal connections between the judge and the attorney he appointed into my divorce case, I wasn’t sure where to start. Although I sensed bias at every hearing (in voice tones, the judge’s choice of adjectives, body language, congeniality (or the lack of it) and the economically biased pattern in rulings, my asking the judge if there was some undisclosed relationship only brought the judge’s denial. I do this sometimes at the beginning of the case — ask the judge to disclose if there are any undisclosed special relationships with any of the players — or not. When they get angry over the question, I maintain a level tone, do not give any opinions or examples, and maintain that I am only seeking a record that this court is a level playing field, which is true. It may take asking four times, but the judge should make a statement on the record in court that there are no special connections or undisclosed history. Then over the course of the case, the special relationships will sometimes drop down.

2

So how does a litigant discover a personal ol’boy connection that the judge has denied exists? When I asked Attorney McNeill how he got the appointment guardian ad litem in my divorce, he instantly replied “I’m the judge’s best friend.” 185 We were walking down the street to the courthouse and I remember his casual disclosure — as thought it was of no consequence. Later in court, the judge denied it. It took a full day of law library searching through state bar newspapers to find a news article about other significant financial and legal connections between these two men. The judge sold his law practice to this same attorney and received payments. The attorney also represented the judge’s wife in court cases, and there were indictors of not only a longtime fiduciary relationship between the two, but a series of personal, business and legal relationships that made this appointment in my case anything but arm’s length. But no one had brought up or even hinted at these connections. On the day the GAL appointment was proposed and ordered, it was sua sponte.186 But the selection of this particular Attorney didn’t jive. The judge had asked each of us to submit a list of 5 names before the close of business, so he could pick a name from our lists, starting with names in common.187 Malcolm wasn’t on either list. In fact, the judge made the appointment earlier in the day, before I even handed my list to the court clerk. Phone records (acquired years later in discovery for another case) indicated McNeill billed an hour for his first call with the judge. An hour-long call suggests not only was there no consideration of names submitted by the parties, (it was predetermined) but it suggests a lot of personal judicial input by the phone about this case handling and set-up.188

185 My theory about first dates is — you often can ask almost anything and get a truthful answer. After a first meeting, people start selectively filtering what they say. So it went with Attorney Malcolm McNeill, one of JNad’s many BFFs. 186 Sua sponte is the legal Latin term for a judge initiating some trial act, fact, finding, or idea. In other words, the judge just thinks it up. Here, the sua sponte idea of the judge was — to use a child protection legal concept (and law) of a “guardian ad litem” — (the appointment of an outside lawyer or trained expert, to protect the child’s best interest at trial) — to issue orders for his friend to function as a guardian ad litem for my (former) law business during divorce proceedings. 187 A guardian ad litem (GAL) is a statutory appointment in cases where it is necessary for the judge to appoint someone to represent the best interests of minor children. For example, a case involving a pregnant mother who stands to lose custody of the yet-unborn child to an abusive non-husband father. This type of in-court battle with a judge is frequently emotionally charged and often involves fundamental rights, so appointment of someone to represent an unprotected incompetent child makes legal and logical sense. It’s also a position passed and approved by the state legislature in a law. Here, there were no minor children, so the law authorizing the appointment of a guardian as litem— was twisted to create a paid position for the judge’s friend in this case. What happened to this non-legitimate appointment eventually grew into an entire private court process, with lots of extra state and judge powers assigned to this so-called ‘guardian.’ They included some really scary law enforcement,/hearing/contempt powers against me. 188 I lost my law partnership in a surprise order a few days after I found out about the libel for divorce. The court filing, hearing and ruling were all by ambush — both for divorce and for the loss of my law partnership. (Chuck proposed and the judge agreed in chambers that my interest should be sold immediately for $80,000 to four new young attorney associates and former law clerk associates.)

But bigger still was the huge transmogrification of an approved, established legal concept into a new unprecedented use in law. There’s no statutory authority allowing a judge to expand and transpose a specialized (but limited) ‘power-transfer’ from one area of law (child protection) to another (former property interest.) JNad just dreamed up this hybrid and plugged his BFF into the opening.

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STACKING AND PAYING THE COURT PLAYERS The hidden motivation of a judge to generate fee-income for the friend who bought his law practice — had a lot of appearances: it was a friend; it gave his friend court-appointed income for a year or more,189 and it provided a back-door for the judge to influence the case. The latent bias, churning client funds, and special new procedures — all generated outside attorney fees. I felt fleeced but couldn’t see clearly in the midst of emotional and legal confusion generated by these developments. In some cases, the depletion of my $100,000 trust fund represents chump change; in others it is significant. But the pattern of padding a case with unnecessary appointments helps the judge friends. The ability of a judge to manipulate to add ‘extra’ costs, means litigation costs are wildly unpredictable, without an ability to control them. This is one example of a financial technique used to fleece the parties, and enrich the profession. Who pays the bill? is a question often reserved to the end of trial, but insiders know bills can be largely dumped (one way or another) for payment by only one side. Cost-dumping can be on the flimsiest rationale. That determination is discretionary to the judge, so a huge suck-up factor is involved in cases where a judge appoints the players into a case, controls money and assets, and issues orders of payment.

NEPOTISM I became aware only years into the game of law of the problems arising from familial intertwining of several of New Hampshire’s state court judges. Brothers-in-law sat on the Supreme Court, father-daughters were appointed to various court judgeships, and former mistresses were appointed judges. At first, these involvements just seemed like the rest of the state, where several Governors’ sons were elected to Congress, and another followed Dad’s political ground-work through the Governor’s office to Congressional and Senate offices. Okay. So politics is like American royalty (namely, it’s inherited.) But passing down Insider power within a family involves mentoring, short-cuts, favors, and other talismans of power. For judges — those can be actual abuses. What might be passable behavior in politics or Hollywood is not acceptable for the judiciary. Nepotism provides an unbalanced accumulation of favoritism and insider-dealing outside of the fair functioning of courts. It’s an element of exploiting the office and is another type of quiet insider influence over cases — where judge-daughter consults with judge-father over the barbeque. Judge-wife discusses cases with senator-husband on the way to a dinner engagement. Appointments to the bench are father-favors, re-paid over time to sons or daughters. As lines of institutional power become crossed and muddled over generations (think of the tremendous expansion of presidential executive power evolving with secret government contracts (CIA and homeland security) during the twoBush Presidency and the two Clinton presidency/secretary of state roles.) Individual rights to basic elements of trial get lost in the inherited powers involved in the practice of nepotism.

OTHER FINANCIAL GOOD DEALS FOR JUDGES 1. College Scholarships as Unreported Judge Perks Tracing the pattern of educational grants, scholarships, and waivers awarded to the offspring of judges is one example of buying court influence by an intergenerational transfer, much like the nepotism problem. In the late 1990’s, I noticed how frequently the children of one of my state Supreme Court judges received full tuition rides at Dartmouth. Interesting, since the judge-father alone earned a good six-figure salary and paid nothing for his full-rate retirement pension, or his unlimited free health care, or other generous judicial perks. About the same time, the Times-Picayune also noted a similar trail down south in New Orleans, where money was paid by universities directly into the hands of politicians in lieu of taxes. Taxes were paid in a form of tuition waivers — which in turn were gifted to judges and their offspring for free college tuition. Schools providing insurance for themselves in court through these gifts — as the judges do not declare the children’s scholarships on annual financial disclosures, nor do they recuse from hearing cases involving the university. Hummm. Sounds like a conflict of interest. Looks like a conflict of interest. 189 The ‘guardian’ was assured prompt payment for his services, because the judge ordered his clerk of court to hold the ‘sale proceeds’ and those funds subsequently were used to pay legal fees, costs, and offsets for my support. How a judge can flip funds like this is detailed in the next chapter on financial tricks.

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2. Another “Good Will” Scheme is used by a variety of well-endowed institutions and corporations to provide resort vacations, conference/vacations, and ‘policy junkets’ where good-will gifts and offerings go directly to judges.190 Judge Anthony Scalia went on several well-publicized big-game hunting trips, one sponsored by a corporate party in a pending U.S. Supreme Court case. The vacation was widely reported because of the rank of the people involved. But this type of insider friendship, good-will act, or educational exchange (judge’s think of them as job perks) exists at all court levels, and they represent common forms of good-will buying — quiet rewards or non-cash remuneration to judges. They are as immoral as outright bribes, but to hear the judges argue, their explanations sound like thin rationalizations. 3. Loans to Judges from litigants, attorneys, and others, serve as insurance for future favors. Loans often go unpaid. A New Hampshire State Chief Judge stiffed one Concord attorney-lender of a $10,000 campaign loan, claiming afterwards it was a donation. When the lawyer pressed the Chief for repayment, his secretary claimed he got bullied — You want to sue me? Just try it, he was told. The $50,000 a state Supreme Court judge borrowed from his former Clerk of Court/ Attorney/Career Mentor got omitted from his financial reporting for years, while the judge sat and influenced cases with impunity.191 During a contentious public divorce, the omission surfaced along with exposure of (1) a urgent need to cover gambling debts and (2) how the judge tried to influence the Roberge disciplinary case outcome (during secret court deliberations) despite being disqualified because of the secret loan.192 Was it a loan? A gift? A trade for improper influence on appeal case outcomes that Attorney Bussiere had some indirect personal interest? No one bothered to ask any questions. 4. The Extra County Paycheck. Previously mentioned was the $300 million in county payments to district court judges in Los Angeles area. The bi-weekly county paychecks supplemented district court judge state paychecks, plus judges got extra county perks and reimbursements, bringing judge annual income up to $255,000 in some cases. All illegal, for over a decade. Attorney Richard Fine maintained that the 2nd paychecks bought favorable rulings in development and zoning and environmental county cases in district court. His incarceration in solitary confinement for contempt of court for 28 months is covered earlier in the chapter. The subsequent manipulation to convert and “legalize” the decade old practice is a lobbyist gold mine — as the judges stood back and watched Judge Jaffe punish Fine, while they brazenly manipulated to keep all the payments while extending the ‘county bonus’ extra monthly income.

MIS-USE OF STATIONERY On a lesser scale, a New Hampshire Supreme Court judge was charged with a disciplinary violation for using her court stationery to reply to an out-of-state (personal) lawsuit, and she received a sanction. The implication of using her high-ranking position to suggest some superior knowledge and possible influence in a family legal dispute is akin to a Congressman telling a traffic cop his status. It is a latent form of begging for favoritism and leniency based on rank of office. However, misuse of official stationery is worth mentioning largely because of a disparity in treatment. The same infraction (misuse of legal stationery) was found to more severe when done by a former attorney. A disbarred attorney who used his old law office stationery was further disciplined. (Kind of like stabbing a corpse.) This stationery case was the only example of ‘protecting the public’ that I uncovered during the several years I volunteered on the State Bar Committee on the Unauthorized Practice of Law.193 The newly formed committee194 simply had little to do because 190 Southern Hospitality, Tulane Style: diverting taxpayer money into the hand of legislators and judges, tulanelink.com; see also Ed Anderson, Tulane scholarships survive, Times-Picayune, May 30, 1996, and Legislative scholarship misuse revealed, by Larry Connelly and Dorothy Adams, The Tulane Hullabaloo, October 27, 1995. 191 Attorney Emile Bussiere $50,000 to Supreme Court Judge Stephen Thayer was not reported on the mandatory annual financial disclosure form for years, although late-filed amendment/corrections got filed after allegations surfaced during his divorce. 192 See Emile R. Bussiere v. Carolyn Roberge, Stephen Eric Feld, H.T. Management Corporation, Fifty-Five Associates, Ltd, Stephen Eric Feld P.A., Docket No 97-C-750, Hillsborough Superior Court, State of New Hampshire, and subsequent Attorney disciplinary hearings against defendants. These cases followed Attorney Emile Bussiere’s request that his opponents in the real estate transaction case — be referred to the Professional Conduct Committee. Presiding Judge Carol Ann Conboy complied with Bussiere’s request, and made a referral to the state bar PCC. The matter eventually was heard by the State Supreme Court, (on which Justice Stephen Thayer advised despite the disqualifying conflict of interest.) 193 See also § 5. 194 The Bar Association Committee on the Unauthorized Practice of law was formed in the late 1980’s to protect the bar and public from unlicensed lawyers. I understand it is now quite zealous in prosecuting and fining outsiders by charging them for the other side’s extensive attorney fees and costs run up during prosecution. Hummm. Under what theory in law? Another contempt of court? A criminal penalty — paying attorney fees? It sounds like the attorney ethics committee ruling that lets the state run up expensive and excessive charges, then fee-shifts at the end all the costs.

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there just weren’t any complaints to deal with. Members were reduced to dreaming up entities to sue (Nolo Press and storefront paralegals were the targets of choice.) There was much discussion about how much $ impact to attorneybusiness these entities represented, especially in matters of wills and estates and bankruptcy forms. People without lawyers in the courtroom are called pro se.195 Sometimes, they are poor. Other times they don’t want to pay over disproportionately large sums for lawyer fees, and are willing to learn the law and represent themselves. Often they want some help, and ask relatives, friends, and people who have been in court before for help. Some helpers are highly educated, sometimes in the law. In earlier times, they might have qualified to sit for lawyer exams or otherwise qualified to practice law.196 Most use self-help books, and diligently research at the local law library how to file papers, ask others for help, call witnesses, and put on their own defense. Often, I have found pro se people to be highly intelligent and willing to work to get educated enough to represent themselves. Sometimes, they need direction. They think court is about presenting the truth to a judge. Right? Judges often treat them disrespectfully and hint that the pro se must be a cheapskate or a fool for not hiring a lawyer. My experience is that pro se are, in virtually every single case, pressured by judges to hire an attorney. Judges always comment negatively about those who do not hire a lawyer. They often say, only a fool has himself for a lawyer.197 There is a hidden agenda in this — I call it the Full Employment Act for Attorneys, and secondly, a judge can control a lawyer in a way they cannot control a pro se. Attacking Gadfly Help. Courts largely consider the types of people unwilling to buy attorney services, at best as a nuisance and aggravation, and the other end as a threat to the system. Largely they are poor or middle class, but unable to afford lawyers. but more importantly, as knowledgeable law advocates they cannot regulate and control (like they can with lawyers.) For advocates like the notorious New Hampshire gadfly,198 Theodore Kamasinski, judges took aim to eliminate his help of poor people. Water-carrying members of the Bar attacked a longstanding practice of allowing nonlawyers to represent people at court. From 1995 to 2003, this gadfly moved from one case to another (the judges kept striking him from cases) because he identified and converted patterns of unfair judge tricks into media spectacles. They were embarrassed. The bar battened down and finally, the Unauthorized Practice of Law Committee had some real work to perform — gutting the 300 year old provincial practice of allowing non-lawyers to help ordinary citizens going to court. A large problem for the Courts in going after non-attorney helpers was the State Constitution and an old law permitting this kind of legal help. Together they imply any individual has a common law right to get help for and at court, without paying for a lawyer. Judges and Ol’boys unified to ban Theo from court. 199 At the same time, they began to lobby to change the law. Ironically, at the same time, the pro-bono bar had over a 6 month waiting list, and the only free-clinic at the law school narrowed it’s services to the poor, to handle only landlord-tenant issues. There was no free help. Like I said — the lawyer full-employment act. I like and admire gadflies. I have used two and couldn’t have remained standing without their help. We’ll pick up the assistance provided by gadflies (and the territorial responses of judges) and explore the gadfly role later. The most recent territorial development is to sanction lawyers who help pro se parties, (by reading drafts or having consultations with people who cannot afford to retain an attorney for the whole case.) The bar/judges can’t attack the pro se themselves, but they can terrorize lawyers and make them afraid to help poor people on the side. Judges already 195 Pro se is Latin meaning for oneself, or in his own behalf. Other terms include In Pro se and In Pro Per. 196 For 300 years, lawyers qualified in New Hampshire by individual or course study in law or by apprenticeship to an attorney, then by taking a state exam. Passing meant qualification. I thought the degree and the passing designation were a property right inherent in the individual to practice law. The bar says no, it is a privilege, like having a driver’s license. It moved from an individual right, to a state privilege granted to an individual. The difference is in uniform control. During the 1980’s change-over from legislature to courts, the historic system got quietly extinguished. The ability to practice law stopped being a right and became a “privilege.” The distinction has proven important to legally educated people who otherwise qualify, but may not comply or agree with Bar regulation practices. 197 I’ve never had the guts to respond to this insult in court — was that an insult, your Honor, or did it just come out that way? But if you do, I am interested in what the judge replies. 198 See The New Yorker gadfly article, The Judge Hunter, by Jeffrey Toobin June 12, 2000. 199 For one example, see In The Matter of Lisa A. Holmes and Ralph F. Holmes, Hillsborough–northern judicial district, No. 2002-664, and N.H. Supreme Court, Opinion Issued: October 2, 2003. He was also removed from my case, Judith Thayer’s case, Candice McMinn’s case, and others.

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have successfully closed out most corporate officers, insurance and other industry personnel from representing their company interests in court –judges now requiring corporations to hire licensed attorneys for court. These ‘rules’ act to protect attorney fees within the monopoly in the bogus guise of somehow protecting the public.200 The monopoly enforces scab lawyers and paralegals by “charging” them in court and making orders of five and six figures as re-payment of bar attorney fees, which can be a substantial ‘penalty’ for helping someone fill out a form. A legal fiction? The underlying question of whether the right to practice law, (related) the right to appear in pro se with or without the assistance of counsel of choice, is arguably an unalienable constitutional right. Under common law rights, “A state cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the 14th Amendment.” “The practice of law cannot be licensed by any state/State.” Schware v. Board of Examiners, 353 U.S. 238, 239, or Dent v. West Virginia 129 U.S 114. The judge made Restatement of the Law distinguishes between “commercial” law practice (pleading for hire) that is commercially subject to regulation, and the common law right to practice law (a right beyond legislation) Sims v. Aherns, 271.SW 720 (1925). Some states have enacted statutes making it a crime to practice law (the unauthorized practice of law) with criminal prosecution and penalties — but the argument that the pursuit of happiness includes the right to earn one’s living by labor, arts, business, a profession — involves a fundamental constitutional right — as are all occupations of common right.201 This is not an argument to not license, but to open licensing to qualified individuals with aptitude and qualifications not linked to an exclusive country club membership. An interesting parallel battle over state-exercised police-power prosecution against a Yale lawyer/physiologist in Texas about her right-to-work-rights, included this allegation of state over reaching, violation of First Amendment Speech rights, and 14th Amendment Equal Protection rights, right to earn a living, in state laws that were vague, overbroad, and exercised prior restraint of free speech. She won her appeal challenging Texas law regulating the practice of psychology. See Dr. Mary Louise Serafine, U.S. Court of Appeals Fifth Circuit, No. 14-51151 (2016) with amicus by the Center for Individual Rights, Washington, D.C.202

29 HOLODECK LAW

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BACKGROUND ON FORMER ATTORNEY LINDA KENNEDY About the time I was discovering what a wreckage my life as a lawyer-whistleblower was, I received a phone call from Virginia Attorney Linda Kennedy. A complete stranger, she called on the recommendation of mutual acquaintances in law, who recognized our common-interest whistleblower dilemmas. Soon we discovered that our professional careers as attorneys in different states and different areas of expertise had much in common. We were both whistleblowers, intent on exposing judicial abuses we experienced as attorney, but which appeared to be prevalent in our respective state courts. We both were acting and speaking from a place of conscience. We both recognized that judges and bar attorneys were retaliating against us — pretext for publicly talking about non-legal acts of bad judging (namely, judges throwing cases.) We both understood there was no criminal or civil law violated by speaking out, although we were being shamed, ridiculed, and treated like criminals.

200 The question about whether there is a common right to practice law (or any other occupation) in a manner or for reasons under the Due Process or Equal Protection Clause of the 14th Amendment, Schware v. Board of Examiners, 353 U.S. 238, 239, citing Dent v. West Virginia, 129 U.S. 114 (1889) 201 http://pacourtinjustices.com/constitution/unauthorized-practiceof-law-upl/ 202 https://222.cir-usa.org/cases/serafine-v-branaman/

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We both believed in a higher power, although neither of us called what we were doing a religious act. We knew it was a moral act and that we were acting out of conscience.203 We both were receiving direct and veiled threats — not just professional retaliation but physical warnings to be quiet. Professional bar complaints against me were flying fast and furious, but no one at that stage was threatening me with disbarment or deadly harm, (which came later.) Linda already experienced both those stages. We both were taking early steps for physical protection. We both went to law school as adult women — more than a decade after college and other life work. I found this last to be a common trait of whistleblowers from all industries — it is often those with a more mature sense of the world and their place in it — those who speak up. Linda and I had less need for conformity. It never dawned on me that not speaking about judge misconduct was a requirement for being a bar member. Peer acceptance was far less important than individual conscience. We each had a more mature sense of a personal duty as individuals, and a developed sense of what is for the common good.

My Dad (of whom I was a little afraid) especially encouraged this. Say what you have to say, he would command when I stammered or lisped or couldn’t get to the point. His lesson? Be concise, don’t waste his time, but spit it out. And he would listen. I could see him listening. That’s why I know when a judge chooses not to listen.

Linda had worked in the insurance industry as an adjuster before law school. Since graduation she had her own law practice as a plaintiff’s attorney for insurance claims. She worked in an area she knew well, but ‘on the other side of the aisle’ from her former allegiance. She had a greater knowledge of how insurance claims were processed (or denied) because that had been her profession for years. She was incensed over the antics of several Virginia judges, and like me, had called out and reported up the chain of command about a variety of judicial abuses when she experienced shenanigans firsthand in court. My complaint experience was similar, but in the area of divorce court and family law. I didn’t do any judge reporting until I experienced it in my own divorce case handling. Shortly after her phone call, Linda arrived for a weekend visit. Independently, we already had reached essentially identical conclusions about attorney reporting of judicial misconduct and the retaliation it brought. But meeting her in person made me feel less alone. Linda was the first lawyer who not only understood, but who experienced similar retaliation and threats. She no longer trusted judges. Some lawyers and legislators were angry about what was happening in court, but all were afraid. It appeared there was no protection from the court’s wrath. Linda acted consistently with what she had thoughtfully determined was both immoral and legally wrong. This 40-something woman had asked for an external investigation on internet radio. Her state bar, a judge and a clerk of court pointedly were reacting to fear of radio exposure. What Linda proposed to broadcast was viewed as heresy. Talking on the radio and taking listener phone calls about illegal acts by judges could promote a schism within the court/bar system (or much worse.) She planned to report about right and wrong (personal conscience moral issues.) Recall the old sin of apostacy when someone formulates and holds contrary religious ideas (here it is contrary to judge doctrine.) By broadcasting those ideas to others, Linda threatened a greater sin. (When the idea is disseminated, apostacy converts over to the sin of heresy.)

203 The inherent right of conscience is a religious and Constitutional function, exempt from civil jurisdiction. Judges don’t have authority to interfere. Among many presidential and Constitutional signer quotes asserting the fundamental right of conscience is beyond the province of the Courts, is one from James Madison, First Inaugural Address, March 4, 1809. He noted in part the requirement “to avoid the slightest interference with the right of conscience or the function of religion, so wisely exempted from civil jurisdiction.” See also The New Hampshire Constitution, The Bill of Rights, Article 4, Rights of Conscience Unalienable (1784) at Appendix A.

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Com’mon, you say. This is the 21st Century.

2

That male-domination religious/conscience/thought-control stuff is over 400 years old.

And yet, ‘that stuff’ threatens modern judges, not only about a potential loss of prestige and power, but represents a threat to judicial careers. Professional reputations. Public scrutiny. Humiliation. Personal embarrassment. And probably most important, public allegations of judge wrongdoing might jeopardize the lifetime flow of money — salaries, pensions, and perks. People could end up debating, as a result of Linda’s program. A critical discussion of judge behaviors might find – The judge should be excused from discipline because he merely committed a simple mistake. The act of abuse was a mere error in job performance, Or was it reckless and willful? Was it indifferent behavior? Or purposeful? (because a defendant was targeted?) If so, how many officials were involved? Was it obstruction of justice? Mercy!204 That debate and investigation would be a mess. Requiring plenty of media spin and maybe a dose of mercy for judges before it all got sorted out. And it might be stimulating — spreading ideas that it should be okay to ask for quality control, or transparency, or equal application of law to the people who weren’t judges or insiders. It could lead to unfettered thinking — ideas about retribution or victim compensation when a judge acts illegitimately. All currently controlled thoughts. By impersonating an invitation-only country club, judges assumed authority to implement a secret institutional rule, about the essential nature of maintaining the highest degree of decorum (they mean authority) by controlling member speech. What’s interesting is this private exception to rules established for others isn’t new, and has roots that are about 400 years old. But not in America, where the daily practice violates national principles of equality and fairness. So internal criticism has been eliminated. Undoubtedly potential embarrassment is a fearful idea to men used to being the law and therefore above the law. But leaders pretend lawyer regulation is an invitation-only private country club. And I stand for the experience that it is not. I was not invited. I was conscripted. My joining the bar was a government pre-requisite for practicing my education and profession. What extent might a wrongdoer-bully go to protect himself from exposure? To contain or discredit people like us, two attorneys who refused to be blindly obedient? Linda wrote a number of chapters for a book on Holodeck Law where nothing is as it appears. Linda gave permission to re-print her writing.205 Her articles are succinct and an alternative style to my voice.206 Included in Appendix B, they describe two stages of the court vortex.

204 The traditional exclamation is actually the phrase Goodness, mercy and justice! Justice is getting what you deserve, mercy is not getting what you deserve, and grace is getting what you don’t deserve. 205 Linda’s Holodeck series was also printed online in J.A.I.L news journal, February 22, 2002. 206 See Appendix 2-A&B, Linda Kennedy, In the Eye of the Judicial Storm, and The Double-B, Triple-C Play.

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CHAPTER THREE: TABLE OF CONTENTS

CHAPTER THREE — CLERK OF COURT AND ADMINISTRATIVE TRICKS §30

STAFFING THE COURTHOUSE — INSIDER PATRONAGE

§31

HIDDEN, SECRET AND LOST DOCKETS, AND COURT RECORDS

§32

COMPUTERIZED DOCKETING

§33

SECRET COURTS

§34

TRANSCRIPT TRICKS

§35

CLOSING PUBLIC COURTROOMS & HIDING THE HEARING

§36

CATTLE CALLS — OVER SCHEDULING FOR JUDICIAL PRODUCTIVITY

§37

PRO SE TREATMENT

§38

CLEARING THE BACKLOG

§39

CLOSING COURT LAW LIBRARIES TO PUBLIC ACCESS

§40

CONTROL OF COURT DATA, POLLS, AND COURT STATISTICS

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TABLE OF CONTENTS

INTRODUCTION

Chapter Three — Clerk of court and administrative tricks

INTRODUCTION TO CHAPTER THREE

CHAPTER

Making a government institution invulnerable to criticism is not only protective but stunting. It leads to internal abuse and corruption. Instead of running the fairest, most honest and reliable court model on the planet, American judges instead have established a highly authoritative fear-based administrative system, which diverts judge attention from justice and focuses on protecting themselves and their judicial acts from external assessment and oversight.

3

The system is unaware of how poorly its insider model functions, resulting in injustice to the people who use courts. Judges are unwilling to listen, so people who speak out are branded heretics and worse. Self-regulation has created a condition that judges are unable to see their own flaws.1 They have kept themselves apart and unaccountable for court abuses and individual corruption using principles, rules and self-made laws that are invalid and un-American. “Researchers have found a relationship between authoritarian values and a subjective sense of well-being.” So judges think they operate “steadily” but they lack external perspective and oversight. The myopic view of the court operation and how judges function, is a vested, impaired and unreliable one. The impact of authoritarianism in court has both an institutional and an emotional component. A court is a strong social hierarchy where every person’s place is clearly understood. All courts divide players into insiders and non-insiders. Judges at the top of the court hierarchy exercise the highest degree of authority over everyone else in the system: employees, associates, members, and public users (often defendants). Those at the top of this vertical hierarchy fear and restrict criticism. They feel threatened by external (objective) oversight from those who are not beholding to them. So the court system has avoided any qualitative assessment and review of how well the justice system is functioning in its mission statement.2 Where is the national report card on how well judges are upholding the principles underpinning American style justice?

The unanswered questions: Is the current judge/bar system of justice a good one? Do judges consistently administer fairness and justice in an acceptable quantity and procedure for every case? What percentage of cases? What about errors? Intentional abuse? All are questions not raised and not addressed.3

The fortress mentality means judges feel they are under siege, both personally and intellectually. They fear crazy litigants might retaliate, and they mistrust anyone who criticizes or objects, and outsiders who try to create discussion. They 1 ABAreport2013_legal_education_and_professoinal_development_McCrate_report.

For example, The American Bar Association Section on Legal Education and Admissions to the Bar (1982) and The American Bar Association Legal Education and Professional Development — An Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (2013) (online reference see fn 1) was charged with assessing a national report card for lawyers.

2

My view is the court’s mission statement is found in the Declaration of Independence and the United States Constitution — not in the internal judgewritten rules of conduct, which I find self-vested and unreliable.

3

The second group in fn 1 issued a 341 page report acknowledging problems, which acknowledges industry problems, but found solutions only inside the box of unification and judge control. All task force members were lawyers, judges or deans. They recognized the issues in Chapters One and Eight (the Chris Columbus Langdel ‘scientific’ model of law school teaching) and other professional and systemic deficiencies. They noted in passing “poor quality law school results” and the overall exploitative nature of lawyering. The smug review called ‘the problem’ “a gap between expectation and reality.” (McCrate Report page 3.)

The failure to acknowledge the missing role of the Rule of Law and stare decisis and how they are unevenly applied or omitted from modern cases — results in narrow self-serving recommendations (within the four corners of the bar box.) They free-throw a recommendation calling for more lawyer training, a large external bricks and mortar institution to teach post-law school lawyering, and much more money to fill in “the “gap” by training for those already in the profession. The free throw misses the basket entirely.

All of those proposals seem misdirected to me, and not likely to resolve the systemic abuses caused by a poor institutional bar/state court foundation. There are easier and better solutions, but they involve an external and different path in the ‘search for excellence’ in law than the narrow self-interested remedies proposed by court insider-leaders.

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want to function solely in a cocoon without oversight. So courts want more money for guards and security — fueling the us versus them thinking. On another front, judges have unified with bar leaders to shore up and reinforce up the intellectual side of bad judging, to avoid exposure of insider treatment and cronyism, and to seal off the area of judge discipline. There is no effective public oversight. Those within the system are by necessity, made a part of the hierarchy that demands loyalty and protection its leaders from the enemy of public review. It’s hard to be a good judge all the time, especially when no one is watching. Those inside cannot report judges as a matter of loyalty and job security. The ambiguity between providing justice to society at large, while operating under a private elite system of privilege, is a paradox and a management problem. External reporting is not only difficult, but comes with career-threatening implications.

30 STAFFING THE COURTHOUSE — INSIDER PATRONAGE

§

Administrative employees control the court and zealously reflect attitudes and values of judges who hire and supervise them. Judges stand guard over those who work in their system it operates through control and fear. Court employment is a patronage system, so allegiance and loyalty are not only highly valued, they are required. Employees are like a closeknit, extended tribe, with patriarchal leaders controlling small fiefdoms of power. Employees are chosen for conformity, and learn to value a highly authoritative management style or develop an ability to feign an attitude of respect and subservience. Those who remain long on the job (the benefits are great) often practice extreme loyalty to judges. Often they will mimic the air of petty authority over courthouse customers and mundane document functions. The job comes with stability and good benefits. Like most patronage jobs, the implication is ‘financial remuneration’ for those loyal to the lord is granted by private benefaction, in return for liege protection of the superior in charge. (translated = no protection service, no job.) Webster’s Dictionary suggests patronage includes defending, vindicating, and justifying in protection of the benefactor when necessary. Former Wall Street Journalist Max Boot referring to Cuban history in the early 1900s, wrote that traditional political patronage came with the benefit “stealing from the public purse.”4 It’s much less blatant and more sophisticated now, yet still carries the tawdry element of group allegiance and service in exchange for payment. The Pioneer Institute issued a report on legislatively created new court positions in Massachusetts that added $48.3 million dollars in hundreds of patronage jobs in state courts over four years.5 The “excess … jobs were traditional ones that legislators seek to fill with their own politically connected candidates” including assistant clerks and registrars, probation and assistant probation officers — jobs paying an average of $69,000 annually. A court career attracts employees with traits that include a natural high degree of deference to authority, loyalty and obedience. Studies indicate such a strong belief in absolute obedience to authority is often grounded in fear.6 So in a messy and threatening world, the atmosphere (of court) is most comfortable for those with a high need-to-know-with-certainty,

4

Max Boot, The Savage Wars of Peace, Basic Books, (2002) at 138. Both Max Boot books are highly recommended reading. His first book was stunning. Out of Order: Arrogance, Corruption and Incompetence on the Bench.

5

Frank Phillips, Boston Globe, Study Says Lawmakers Added Unneeded [Court] Jobs, December 6, 2001.

6

See FiveThirtyEight, Tom Schaller, Authoritarianism in American Politics, October 12, 2009, at http://fivethirtyeight.com/features/authoritarianism-inamerican-pol… See also Marc Hetherington and Jonathan Weiler, Authoritarianism & Polarization in American Politics, Cambridge University Press (2009).

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the black and white of life. Rules are very important.7 The ability of insiders to manipulate rules and law is a sign of high achievement and it garners respect, while the rest of the world sees it as bending the rules and outright cheating.

3

The ol’boy patronage system in every state comes with financial benefits and the aura of affiliation with the elite and powerful. Staff tendencies are to create a formal mystique over records, filings, schedules, and paperwork. The lack of outside accountability, feedback, competition or public review, encourages clerks to adopt the court attitude of elitism. They may vent personal pique or derive personal power from handling repetitive documents and tasks. Clerks may make access to public records difficult or impossible, as a way of exaggerating reflected personal importance, or to demonstrate intense loyalty to a legal system that is criticized, but never accountable. The public is perceived as not as a customer, but as a more ignorant caste, causing inconvenience, work, and asking annoying questions about legal or filing advice — extra work that could be avoided if they just used a lawyer. The following examples are ways staff at the courthouse can keep the lesser caste from accessing their rights. What customers? There is no incentive to be consumer service oriented, helpful or even pleasant to non-insider court users. In fact, the opposite. There is however a distinct implied benefit to insiders (who rely on court personnel to provide favors, special services, handling and helpful information in their routine use of the court facility.) That leads to a perceivable suck-up factor, which clerks relish. Without the occasional helpful phone call or other small service from a clerk of court, most attorneys and law firms would experience some run-in or snarl over the rigid and numerous requirements of filing and law. Clerks often play favorites and forge pseudo-bond with Ol’Boy associates, who can seem like minor celebrities with court staff. Staff are selected (and survive best) when everyone understands they work for (and are beholding to) an Ol’Boy caste system. Judges rule from the top of the hierarchy and rule absolutely at court, not only for matters of distribution of patronage (staffing and case appointment decisions) but by maintaining control over all daily operations and matters affecting judges and lawyers.8 The requirement of loyalty is absolute, even if you never signed up for it. This universe functions in an atmosphere of absolutes — thinking and processing come in black or white. Court is not a place that appreciates shades of gray or bursts of color. Other personality types, (with more creativity, daring or caring attributes) can value rainbows, give way to impulses and emotion, or value non-conformity, but court thinking is normally restricted to a highly authoritarian world of black or white absolutes. It is a cerebral universe with no use for heart or belly values. This means absolute obedience to authority is not just the value of this organizational system, but the operating standard is an outgrowth of the highest need for control and order in order for its leaders to feel safe. Subordinate thinking mimics that of leaders, and loyalty is the virtue of choice, with apostasy, heresy, and individualism its mortal sins.9 This theater for providing legal services to the nation had led to a rigid decorum across the institution — a pious mask worn at all court public levels. That atmosphere establishes an overall absence of ordinary kindness and respect. (People certainly don’t go to court to find compassion.) There is a chilly imbalance in the atmosphere of courts, with a sense of entitlement for insiders and a cool formal tolerance and slight mistrust of everyone else. Although I have found nice court clerks, kindness is definitely not a job requirement. The requirement for long-lasting job security is the ability to assume and mimic the energy of its leaders. The overall atmosphere among staff is a combination of natural suspicion and self-doubt. This conveys several messages to the public, each with an implied warning.

7

Even vague and ambivalent rules become reassuring. The kind of rule that can be manipulated to cover whatever the person in charge wants the rule to represent. So the presence of a rule represents authority and power over others.

8

See example of a description of one such legislative battle over employment, see Associated Press (Concord Monitor) August 23, 1998, B1.

9

Four classic cardinal virtues are temperance, prudence, courage, and justice. Christian virtues are faith, hope and love. Existentialist Nietzsche added truthfulness. A list of virtues can be found at http://www.virtuesforlife.com/virtues-list

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Don’t trust yourself — trust us instead. • We don’t really trust you. Always respect authority (meaning all of us in the courthouse.) It’s not nice to question authority.

Black and white. That value of respecting those who manipulate well — also incorporates an inherent tendency to avoid the messy gray-colored areas of life, or the painful uncertainty involved in self-determination. People most comfortable with the black and white arrangement are those most comfortable with clear authority, top down, no questions. The profile also includes a combination of natural suspicion and self-doubt. There is no room for hard-tocontrol individualism and or contrary moral beliefs. [Hold the thought that this institutional personality snapshot is diametrically opposite the traits of rugged historic American character.] The courthouse operates as a small patriarchal family governed by a titular head — who would be the highest-ranking supervising judge, presiding over a hamlet of lesser judges and other patronage positions. The occasional court user might be surprised to find out how close and incestuous a courthouse can be. Gossip and information are currency. Any perceived slight or lack of deference to one member of the court family, (whether judge or bailiff at the door, or clerk at the public counter) means the entire court family responds. Think of it as dropping into an isolated backward region with a cult mentality in black robes. That’s because the culture of the court values the absolute. It’s not that there aren’t any gray or pink shades — but the work of judges is to make absolute answers. Second-guessing and indecision suggest — error? Fallibility?? Sympathy? Weakness? Something much more human than authoritarian control. Prison Shopping. Chuck and I visited the prison store in Boscawen New Hampshire where woodworking projects made by prisoners are offered for sale to the public. As he wandered through rooms of furniture, he flipped over the manila price tags reading aloud the names of men whose cases he recognized. He began searching to find names he tried and sentenced, or denied on appeal. He commented about each case and the man’s sentence, with the kind of memory and irreverent smart-ass commentary that is his signature. Chuck always had a good memory. (Or else he made things up with little pieces of truth holding his story together. Sandwiched between fingers of actual truth.) Because he was my teacher before he was my husband, I didn’t understand that last part for a long time. I was surprised at his detachment — the matter-of-fact way he described his job of deciding people’s prison sentences. Death or life in prison? Thirty years or eighteen? Possibility of release on parole or never? He knew many of those who had furniture for sale. (I still have two pieces. They are thoughtful pieces, sturdy, unique, and well made.) He efficiently stripped down the substance of their lives to the number of years sentenced to prison and his later-day mind re-calculated their lives in furniture. Interested, but oddly detached. Listening made me think of a man describing a decision whether or not to buy a pair of shoes. Less even. Only it was people’s lives. I realized how easy it had always been for him to make decisions — for everything in life. Big or small. When we went shopping, he was quick to decide. Yes. No. (Never maybe.) Efficient, mostly because he really didn’t care. Like flipping a switch. White or black? Flipping a coin. Heads or tails? It was the act of deciding that mattered to him. Make a decision and move to the next. No backwards thinking. No shades of gray. No equivocation. I don’t know if all judges work with such a detached mind, but many do. Made a decision. Move to the next one. Quit work. Start anew. Check off a box and make a decision. Do it again. And again. I thought about that ability (if that’s the term for it.) The detachment and non-involvement with the messy living that both preceded and followed Chuck’s participation in something. His bare-bones assessments. His work of deciding fate of others. It’s an unusual way of thinking. Of living. I’ve reflected back many times about his detached-pattern thinking — studied its facets and tried to determine if it was good or bad. I finally decided — it’s efficient (and therefore good) for the system, but bad for individuals. It’s not a system I would care to be tried under. I think it leads to a lot of mistakes. Mistakes charged over to others for their payment and the messy work of 157

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trying to correct them. Judges don’t have to fix or pay for their own mistakes or even acknowledge them. It’s all very cool and compartmentalized thinking, without accountability.

CHAPTER

The so-called certainty of law works to keep away pervasive fear of those making the decisions — by keeping control not only of what is ‘the law’ but of everyone connected to the case. Court-culture simplistically (some would say efficiently) views outsiders as messy, potentially dangerous people in need of control. And it sees itself as the controller. Simple black and white. A mentality of not trusting most of the rest of society, (who are viewed as a lesser class.) The safe people are within the curtilage — the four-corners of judge-defined authority. Those are people a judge controls, therefore the ones trustworthy.

3

KILL THE BILL When the state legislature passed and signed a bill into law that moved court security guards from the payroll of the Administrative Office of Courts to the county sheriff departments, it represented about a 50% annual savings. But the Supreme Court then initiated a case and trial on the constitutionality of the newly enacted law. Justice William Johnson persistently asked Constitutional Lawyer Eugene Van Loan about court’s constitutional power, and Van Loan replied that judges were granted authority to hire their own law clerks. Johnson persisted, arguing that there was a messenger clause in the state constitution, allowing judges to appoint messengers. To the audience, it was a scary proposition that a judge at the highest level in the state did not know his own state constitution well enough to know there is no messenger clause. Not to be bothered by inaccurate facts, Johnson doggedly analogized that if judges can appoint law clerks and can appoint messengers, then they can appoint security guards. He ruled the new law (passed by the legislature) was unconstitutional because public safety mandated county sheriffs be replaced by an internal court security team.10 This is another example of intellectual dishonesty. And a genre of cases that readers can learn to recognize as judicial power grabs. Note some patterns in the security guard example: First, the court manipulated a new state law (and budget) issue into a “law case” so the judges could overturn the law. The court had a conflict of interest, but who’s calling them out? Why manipulate to open a court case at all? The judges were setting up another bogus political power grab. At oral argument, the judge manipulated to create a constitutional reason at law. His questioning about the constitution was fishing to get a particular answer to justify a pre-determined result. His thinking was flawed, but in this forum, no one dares accuse a judge of bogus reasoning. Public safety, as a reason, is a recognized rationale for particular circumstances, but arguably not this one. The logic doesn’t flow that one professionally trained law enforcement branch was unsafe for work at court. Because the answer Judge Johnson wanted about the constitution authority wasn’t forthcoming, he threw out another phrase. He looked foolish and had to improvise. Badly. [These exercise are to help readers learn to pick out examples of judge activism in cases with an institutional self-interest and conflict of interest.] Control over law clerks, counter clerks, court clerks — even security guards — are all authority issues going to the process of expanding court authority and protecting its insider practices. It’s not about threat from external, as much as an internal security issue. The actual issues the judges have literally ‘gone to court over’ seem relatively petty, but they frequently are. [In my own case, the blow-up issue was about trash.] In the lawyer regulation and the security guard

10

This example of intellectual dishonesty follows a pattern in judicial-power-grab cases. It’s a genre of case that readers can learn to recognize. Note two judge patterns in this example.

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cases, the issues were disputed and wrangled in the legislature, and decided. [In one, it was not made into law, and in the other, it was enacted into law.] But in each, the judges opposed the legislative outcome,11 but not for valid constitutionalinterpretation reasons, (the ones J. Johnson argued and used to justify the case outcome.) It is for a much darker reason. To protect the vestiges of church and kingly power that allows judges to abuse with impunity — those who appear in court.12 So for employees, this can never be just a job because the job comes with unspoken requirements (and a duty) to avoid outside loyalties.

THE COURT’S POLITICAL WAR ZONE In these so-called inherent constitutional power cases, we will discover (by deconstruction) that it is not a bonafide issue about what authority is provided in the constitution or even an issue of what is constitutionally correct. The bottom line is a matter of judicial bullying for power — with a vested outcome that expands the court’s territory and authority..

Judges across the country hotly assert they should have complete control over gross state funding for the court branch13 (and all people and activities coming into contact with the court.) This covers a wide range of topics. New construction? New tiers of judges? Pay raises? Control of security guards? Control of the four corners of the courtroom? The building? The edge of the parking lot? All have been hotly debated in the legislature, and when the judges lost there, they embraced the issue contrived as a court case. It’s a political court tool to pursue and protect illegitimate uses of judicial power. They are lockstep with the fervor of battle. The pattern is thus: Judges identify an issue they really care about or have an interest in, and identify which high court judges will carry water. The issue is raised or presented in the legislature, debated and voted. If the outcome is not what the judges’ want, they initiate a court case to ‘raise’ and then decide the ‘constitutional question’ behind the issue. The handling is outcome based. What if there is no constitutional question? No matter what the constitution provides, (or doesn’t) the judges manufacture some legal-sounding phrase (bogus or not) to justify the pre-determined desired outcome. They always win by ruling for themselves. Of course, judges claim they always have the last word14 against legislative or executive powers. Sometimes they claim it is an overlooked ‘inherent’ power. When there is outcry, judges just assert an inherent or implied ‘right’ to have the last word in law. (But, but, but…. their process is corrupted….) For now, just remind yourself — whose doing the encroaching? Whose power is it anyway? 11

Judicial conduct rules provide the term “judges” also means masters, referees, clerks, deputy clerks, registrars, deputy registrars, court stenographers and reporters. Howard Zibel, Presentation on Judicial and Professional Conduct Committees before [N.H.] Senate Judiciary Committee re SB 412-FN, January 12, 2000.

12

Definition: With impunity means without pain; or with exemption and freedom from punishment, harm or loss. Historic grounds and presentday examples are presented to support my claim that judges still act with impunity

13

Court budgets, salaries, and building funds must be approved by the legislature; judges resist legislative oversight of their budgets, and often maintain they are not accountable to legislators for expenditure breakdown — only gross sums (for example — they will provided a lump-sum total of all salaries, combined, but not individual salary breakdowns, for example. That’s because most high level judges are paid considerably more than the Governor.)

14

Marbury v. Madison, 5 U.S. 137 (1803) is the first case in U.S. history defining Article III powers of the then newly-formed U.S. Supreme Court in the first judicial/political power-grab. The confusion about following this precedent comes from several prongs. It is judge-made law. Stare decisis is out of favor, as judicial discretion often replaces the Rule of Law in modern case outcomes. So Marbury v. Madison gets pulled out when convenient (like a joker in a poker game) but overall judges find not all stare decisis cases are so convenient. For example, contemporary appeals use splintering to avoid stare decisis, or they just avoid Rule of Law altogether to decide cases only by judicial discretion.

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Third-branch government domination over what constitutes valid American law is a big question, worthy of a multifaceted investigation before each reader decides the answer. It’s big thinking — requiring more effort than debating the next president or the super bowl. Like death penalty, or belief in God, the right-or-wrongness of political power-grabbing (and the subsequent effect on society) takes time to work through, understand and process. I believe power-grabbing is also a moral issue. So that’s part the final evaluation about who you trust with your life.

CHAPTER

This book is the first of its genre of presenting anecdotal results and long-term unanticipated consequences, case-by-case, with reflection about the overall social damage judicial power-grabbing without oversight has caused to our unique system of American justice. The book represents my judge experiences, research, and opinions, all of which are hard-earned. Remember, democracy was a unique social experiment — born out of the anti-slavery movement, and memorialized in the Declaration of Independence, and later the national Constitution. Maybe, like Communism and the Roman Empire, the social experiment will just fail — collapse from corruption from within. But I want readers to know this part of who and how that failure occurred, even the aspects that are inside a secret operating branch of government. As a citizen, you deserve to be able to read about those institutional secrets, just as I deserve to be able to write about them. It’s not a national secret, and it is am American birthright.

3

A basic difference in naturally occurring human attitudes and personalities — (between judges and everyone else) — has led to problems of self-dealing and unreliable outcomes and law as a result of insider dealing. The problem developed hand-in-hand with the tremendous institutional explosion over the last half-century. To the extent other social problems are created as a result of judicial power grabbling from the legislative branch, everyone is left in the dark to figure out what went wrong in court? Courts amass more power; but citizens bear the burdens of judge mistakes. Investigative journalist write and expose shocking problems and lack of oversight in other government branches and business, but Third Branch abuse of social and bureaucratic power is virtually unexplored. Author Note: I understand only too well the threats and economic harm that accompany public protest of judges, so if readers decide in the end to accept the status quo and to live with judge abuse, (by ignoring court usurpations of political power and individual case abuses) I believe non-action should come from an informed place. But not because the information is suppressed. More than individual loss and disparagement that occurs in individual cases, it is the systematic squelching of national discussion about the efficacy of judges and courts that spurs me.

SUMMARY: THE US VERSUS THEM MENTALITY OF THE COUNTRY CLUB COURT SYSTEM — Courts have an authoritative masculine personality that leads to inequalities, delays, and disrespect towards others, not only in court outcomes, but in daily administration. [Another (second) negative impact flows from teaching prospective lawyers using only a limited (and flawed) but lucrative economic model.]15 That model is conspicuously lacking in morality, ethics, and any economic incentive to avoid delay. Taken together, they create a high level of disrespect toward ordinary people in court. These two factors combined to alter the traditional national collective idea of justice. It has led to an exponential growth of über-judging the rest of society. Together, these developments represent an economic and political windfall for the legal profession, but the public has not been well served under this trend.

15

For models of law school training, including the Christopher Columbus Langdel/Harvard model see Chs. 1 & 8. McGeorge Law School, University of the Pacific, class of 1987.

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There is no room for individuals in law — Court is an idealized fear-based, authoritarian social structure that inherently fears those who question authority or make dissention. If they don’t trust themselves to deviate from the country-club group decisions, they sure as heck are not going to trust you.

The take-away lesson of this introduction to the patronage system is the judge’s ‘court family’ may do mean acts against legal consumers as a form of privilege. It’s a form of elitism — insider authority directed against outsiders. Standard clerk-of-court practices often work to keep the public at arm’s length and ignorant. From the website to the clerks’ counter, there is little that is citizen user friendly in law-country. Judges view this as protection court authority and power. Clerks may have a personal style service that flows from an attitude of superiority over ‘customers.’ Court clerks have a tendency to inflate their authority to gain favor and approval of judge-bosses. It’s the nature of patronage-hires for staffing the courthouse. This results in routinely hindering outsiders and restricting public information. Both work to heighten control and insider authority, and avoid oversight and exposure of abuse. Providing information sparingly or not at all also reflects a stingy attitude. Each piece of information doled out to the public operates to establish court superiority and protects insiders from outsiders. No one has to decide what is good or bad; lawful or abusive. To maintain absolute control, information gets parsed out — sometimes curtly, so an outsider feels ignorant and humiliated for not knowing what the clerk knows. It’s the first line of defense from public encroachment — for court clerks to stay in control of court authority. This fear-based use of power is the opposite of acting through love or help-based compassion. It also denies a variety of citizen rights to court access.

31 HIDDEN, SECRET AND LOST DOCKETS, AND COURT RECORDS

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A docket is a list of cases with enough identifying information to allow the public to find and review cases at law in that courthouse. Generally, court clerks arrange lawsuits in numerical order, with some indicator of which court, county, state, and year the named parties engaged in legal confrontation. These are public records.

HANDLING THE DOCKET LIST For one of my earliest jobs as a law clerk in the 1980s, I was required to go to the County Courthouse in Sacramento and review docket lists and pull cases to make copies. The docket lists were large computer printouts, bound into oversized hardcover books, left out on an oversized countertop, and available to all who walked into the clerk’s office. Anyone could walk in and without question look up information in the docket books. If I wanted to pull a court record, I filled out a slip of paper with the case name and docket number and then waited my turn to hand the printed request over to a clerk behind the counter-along with my photo ID. The clerk would go get the file; I got my photo-ID back when I returned the file. The entire transaction could be done without actually speaking.

No groveling required, it was a simple, routine business-like transaction.

I am fortunate to have gone to law school in Sacramento,16 before moving northeast and later the southwest. I’ve had a chance to experience court clerks from sea to shinning sea. I started my study of the spectrum of clerk treatment

16

McGeorge Law School, University of the Pacific, 1987. Tough, practical and highly recommended. McGeorge has both day and evening programs — same courses and professors for both, including U.S. Supreme Court Justice Anthony Kennedy, who was my constitutional law professor.

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CHAPTER

toward the public with sane, ordinary, civilized and mutually respectful treatment. (As I think most people expect to be treated in court. I’m not extraordinary.) Having come to law school later in life, I was not awed by the authority of power. Having married a former Supreme Court judge, I overcame my blind awe of clerks (and judges). I still feel clerks of court and judges should be servants of the people. Through anecdotes and studies, it appears my expectation is unrecognized in any court or clerk’s office in America.

3

I am always touched to be treated with kindness and courtesy, even over the phone, when talking to court clerks. Kindness is rare, as the court environment is not conducive to simple acts of compassion or courage, even for those who inherently possess those character traits. Simple acts of kindness to strangers are not valued, and are interpreted as weakness — possibly disloyalty to the institution — due to the nature of the institution. This mistrust is an alarming development when pervasively practiced all across the “business of justice” — from law enforcement, to prosecution, to trial judges, and of course, their clerks. Mistrust means “domination by suspicion” and “usually fear.”17 It is Outsiders who use and pay for courts, yet universally, Outsiders are seen as a source of fear, a nuisance, and an impediment to a smooth functioning court system that needs rigid controls over outside dangers.

When I moved to New Hampshire, it was the total antithesis of my California court experience. When I tried to access court records in the little state of New Hampshire, I found docket information was treated like a state secret and the private property of the court clerks. Clerks acted as though regular counter services were special favors — even accepting papers or stamping them or pulling and handing over a file for a customer’s inspection — totally public service work that now had become a privilege for the worthy. And each county court had only the docket for that county. If you wanted — say Coos County — up by the Canadian border, and you happened to be in Nashua, down by the Massachusetts border — tough luck. You had to drive or hire a service to go to the clerk’s office at the courthouse. A routine public right turned into a clerk of court favor. And basic case information was kept locked away behind glass barriers — names of people, businesses, case names and docket numbers. Sometimes, the judges established a “clearance” process — an administrative exercise designed to slow the flow of press-related inquiries. Sometimes, I was required to know the docket number of a case in advance of asking for it, because the clerks claimed there was no way for them to look up cases. Without a docket number, I was not allowed to look at court records. The clerk’s alphabetical index was restricted. Circular non-logical reason was standard thinking. The clerks sometimes acted as though it was a huge favor to give, in-hand, the actual case files. They parsed them across the counter one at a time. If the case had three manila folders, I might be handed only one. Often the files were not available at all—ostensibly they were with the judge, or sealed, or restricted, or lost, or in storage (and unable to be retrieved until another day or sometimes days later). These were all recent public records! In New Hampshire, there was no composite card file or computer list — not even a Dewey decimal type index system to research all public cases.18 It is impossible to get a list of all cases assigned to or ruled upon by a particular judge. If you want a list of cases a judge had been recused from — that was not available. Nor was a list of all court matters involving a particular person as a plaintiff or defendant. What I noted also was the proprietary attitude of the clerks — a smug judgmental attitude that permeated most of the court and bar system that looked down and suffered as fools ordinary folks who came to court to conduct business. Clerk attitudes reflect those of the judges’ they work for.

17

Webster’s New Dictionary of Synonyms, C. & C. Merriam Company, Publishers, (1973)

18

This has been referred to as the “alphabetical index impound scheme”.

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Oh, New Hampshire courts had computers. This was the 1990s and the New Hampshire docket list (the index of all cases) was maintained on a computerized state-wide system called “Sustain”, which was not available to the public, was kept behind glassed-walled counters, and was available only for clerk viewing. Clerks made up their own rules that varied from courthouse to courthouse. People were only allowed to see paper case files at each of the ten separate courthouses;19 and there was no state-wide public index. Different clerks established different arbitrary and capricious limits, for example, on the number of court records a person could ask to view each day.

THE RULE OF 10 New Hampshire has ten counties and each maintained separate county court records. If one wanted to ask for records covering the entire state, the clerks insisted it was necessary to physically travel to each of the ten county courthouses to ask at the court counter (during specified hours only) for case docket information. Then, members of the public were limited to a fluctuating number of requests per day. The court counter clerk may or may not have been able to meet the request, depending on how many case files were requested and their other workload at the time. So a clerk could refuse. Some people got limited to one or none, depending on the age and size of the case file requested, and the attitude of the clerk. Reporters, for example, sometimes got none. Trace through this book to see how many times I write that the Associated Press or some newspaper filed to intervene in a case to look at the record. So, technically speaking, a person could request ten. A maximum of ten per day — or less — or none — if that’s how the clerk feels that day.20 A clerk would simply say, “I’m too busy to pull any records for you today.” Favored attorneys could call in and get information over the phone, or request files that would be pulled and waiting when they arrived. Non-favored attorneys and the public were not allowed this privilege. I experienced both sides — when I was married, my husband’s reflected status meant I received lots of so-called favors and clerk kiss-ups, and I thought that was routine clerk of court practice; during my divorce, I was treated differently. As the divorce progressed, it became clear I had somehow become the court’s enemy by the evasive behavior of clerks. One early morning at dawn, (during my divorce case) a clerk of court arrived at my front porch with tears streaming down her face. I invited her inside and made coffee while she begged me not to talk to her at court. I wasn’t chatty, but had greeted clerks by name, and my familiarity frightened her. She felt that she was being identified with me by her coworkers, and that she might be fired. She disclosed many secrets that morning, including that my filings were being faxed to the judge’s house by secret order, and that nothing in my case handling was ordinary, from the date the petition was delivered but not filed in the court. Instead Chuck’s Libel for Divorce went into a locked drawer, where it sat a week awaiting special handling. She had good personal reasons for needing her job at the courthouse, including the extraordinary health benefits, so I was dismayed that my friendliness was jeopardizing that for her. She believed it, enough to make the drive to my remote house on the river. I hugged and thanked her and we never spoke again. The closed-off New Hampshire style system tightly guards everything related to judges, and perhaps that indicates some great need to protect judges from the hardboiled Yankees who appear in their courts. It’s hard to know because court data is deliberately hidden. So personal experiences, anecdotal stories, and unreliable self-reporting by court administrators is all that’s available.21 The first two suggest a widespread problem. At first I thought it might be some eastern elitist attitude at work (or perhaps a provincial practice.) And early on, I thought some states had none of the

19

Letter from Donald D. Goodnow, Director, Administrative Office of the Courts, dated April 3, 1998.

20

The limitations on files made it impossible to assess a judge’s performance. One had to be physically present at each county courthouse to request records, requiring long diving to each county, with the possibility of being denied records capriciously after arrival.

21

Internal whistleblowing by some employees is sometimes protected under federal law, but the Supreme Court has been narrowing and avoiding protection for them in many cases. See Attorney Stephen Kohn’s unique book The Whistleblower’s Handbook, A Step-by-Step Guide to Doing What’s Right and Protecting Yourself, Lyons Press, Guilford, Connecticut (2011).

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petty controls experienced in New Hampshire. Except it kind-of happened in New Mexico, and a few times in Arizona and Virginia. And then people wrote about Florida, North Carolina, Hawaii, Maryland, Virginia, Oklahoma, California. In the end, practically every state. It’s capricious. Maybe court clerks could take standardized national training in human courtesy from the post office or better yet, from Sacramento court clerks.

SEALED FILES

CHAPTER

Every state has some rule controlling sealing court records. In New Mexico, the court rule reads:

3

The court’s policy is to allow public access to official court files and other records. Accordingly no court file or other record shall be sealed from public inspection, with the exception of records containing matters made confidential by law and the court clinic records. In extraordinary cases the court may seal a file or other record upon a party’s written motion or the court’s own motion, and showing of good cause. The sealed records shall remain part of the court file or other records. (emphasis added) Virtually every one of fourteen of the ex-wives of judges’ divorce cases was somehow sealed. Most women had no idea how or why this occurred. The insider trick is to feign or trick an “agreement” to seal with the “consent” of the wife. Sealing was done to facilitate and hide later abuses in case handling. Here’s a sample of how it’s done: Standard insider operating procedure was the judge would offer to seal the file to the wife at the first hearing as a ‘courtesy’ and she would accept (or not object). For the divorce of the Attorney General, his wife was informed that her court file would be under an anonymous name. If a wife resists the judge’s suggestion/favor, she is pressured by the judge to avoid “embarrassment” that will come from a “public” divorce. The issue of privacy sounds reasonable, right? But whose privacy was at stake? In each of these cases, the special order sealing was a set-up to hide later judicial abuses that the judges did not want exposed to public scrutiny or media inquiry. Some wives went public and the presiding judges threatened them (and reporters) with contempt of court sanctions, fines and jail if they disclosed anything in the sealed record, or if they told anyone what happened in court hearings.22 Reporters generally weren’t allowed in (unless they formally filed to intervene) but if they managed to get in, their lips were sealed. Some ex-wives were not even told their file was sealed, and years later when they tried to see it, were refused access by the Clerk of Court for a variety of excuses. Sensitive files are sometimes transferred to other court jurisdictions, where the docket number changes splintering the record. (Sometimes this happened several times — as in the case involving Judge Coffey’s husband’s handing of an Alzheimer’s estate, where John Coffey ended up owning her oceanfront house as ‘his attorney fee’.) That case moved to so many different district courts, after the third time I couldn’t find it. “Lawyers and court employees” say that “judges routinely seal divorce files when both sides agree.”23 That avoids looking at the so-called ‘agreement.’ And it circumvents state law on open court records.

IS CRONYISM A LICENSE TO LIE? The Associated Press moved to unseal my divorce case records seeking financial valuations and appraisals of home and business, “and how the practice was structured (as a partnership or sole proprietorship) in order to review evidence of the truth or falsity of claims made…and the process by which the court reached its rulings.”24

22

In both Thayer and Douglas New Hampshire divorce cases, the wives eventually sought the exposure and pressure that comes with widespread media coverage. They acted despite threats and acts employing court contempt powers. Of all the ex-wife-of-judge cases, these two sacrificed personal privacy, and suffered judicial abuse and retaliation — to expose acts which can be found in all other types of cases at all levels of state and federal court.

23

Katherine Webster, Associated Press, “Lawyer says keep divorce records private”, Union Leader, Nov. 13, 2002. NH Supreme Court In the Matter of Nixon and Nixon, No. 2002-0544 (November, 2002) Docket 02-E-234 and 02-E-359.

24

Rockingham Superior Court, Douglas v. Douglas, 97-M-0019, Jan. 30, 1998, AP Intervention, March 31, 1998.

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This same issue of truth or falsity (and lying) showed up in the divorce of another powerful insider-attorney, whose wife “tearfully” told the judge she “agreed to sealing at her husband’s request but now wants everything disclosed because the sealing order has allowed him to get away with lying to the court.”25 My conclusion is that the tricks against judge’s wives represent a body of illegitimate manipulations that judges use in other cases. If you want to study improper manipulation of judicial authority, (including lying) study the lower court cases of judges’ divorce trials — if you can find the records.

SOMETIMES, JUDGES SEAL CASES JUST BECAUSE —

1. The parties are seriously rich, as in the divorce of General Electric CEO/Chairman Jack Welch, and Xerox CEO Paul Allaire, both men who are used to being accorded special ‘privacy’ as a privileged member of society. 2. Other times, sealing is a perk of political honchos, bar elite, and politically influential attorneys, including those who represent Supreme Court judges, just because they can (same privileged attitude).26 This includes judges, hotshot attorneys, rock stars, Celtics centers and other rich and famous.27 3. The Justice Department requested sealing evidence that might have helped parents of autistic children bring more lawsuits against the pharmaceutical company that makes mercury-based vaccines with a thimerosal preservative.28 4. Still other times, the judge needs to seal the case early to cover-up their own institutional abuse that is programmed to happen for certain types of cases.29

COURTS DON’T LIKE AFTER-THE-FACT PRESS SCRUTINY OF CASE HANDLING In Massachusetts, a state law seals all criminal cases that end in acquittal; however not only is this is sealing contrary to federal case law,30 but serves to thwart review of judicial abuse in the underlying case handling. While the victim’s family can’t appeal an acquittal, they had a judicial conduct complaint about trial handling of the judge.31 Judges don’t believe in public accountability. They especially don’t like legislative, Congressional, or disciplinary reviews (or investigations.) The trouble is, once the case is sealed, how can anyone determine if it was some extraordinary case, or merely an insider favor, or whether the case is one of those abuse-of-justice cases requiring internal cover-up to protect the cheaters? They can’t. The little woman standing alone (and often unable to get a comparable insider lawyer) may feel cheated, but probably isn’t able to deconstruct what was ‘legally manipulated’ in her own case. Standing alone, she can be disparaged, discredited, and discounted. But soon-to-be ex-wives are a problem that generally can be ‘handled’ by the court — often by mere judicial intimidation. The threats and humiliation the trial judge heaps on a ex-judge’s wife are usually enough to silence her. Ergo the sealing orders in each of these cases, later can be the basis to threaten contempt of court, or to otherwise intimidate a noisy wife into silence. However, the press and (heaven’s forbid) true external oversight of judge handling — represent a threat against the rampant cronyism in courts across the national state systems.

25 Id. 26

David Nixon, Manchester attorney, former bar president and former president of the state senate, and defense attorney to three state Supreme Court judges. See Concord Moitor, November 11, 2002.

27 AP, Special Treatment for Politicians, Rich, and the Famous, February 9, 2003. 28

Stephen Gillers, “Why Judges Should Make Court Documents Public”, NYTimes, November 30, 2002 at 17.

29

The Ex-Wives of Judges divorce cases all qualify as “other” types of cases.

30

Boston Globe lawsuit establishing automatic sealing in acquittals violated constitutionality of public right to know, unless judge provides a compelling reason.

31

In a shooting involving a close relative of former Massachusetts State Police Commissioner Cleveland Fuessenich ended in acquittal, however Judge David Fineberg denied standing to the murdered man’s family at trial, and evaded judicial review/discipline process by keeping the files sealed. See Rachael Gottlelb, “Second Lawsuit Challenges Sealing of Fuessenich file”, Hartford Courtant, May 29, 1996, B1-B3.

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It’s not just a judge-divorce case anymore, Toto.

CHAPTER

The federal court pattern is sealing criminal case dockets and court documents after the conclusion of trial — even decades after defendants were sentenced and cases closed. It appears to be a misuse of extensive sealing for drug cases, especially cases involving drug snitches32 or gang murders where a known criminal testifies to convict another. The court electronic docket annotates these cases as “no such case.”

3

The Associate Press Reporters Committee for Freedom of the Press found in their investigation that the U.S. District court in Washington, D.C. alone is running about 1,000 to 2,400 secret cases a year, doubling the number of secret files every three years.33 The rationale given for “protecting witnesses” refers to snitches who testify against other gangs, but this hardly explains growing tens of thousands of cases being sealed in the war on drugs and the anti-terrorism campaigns. Apparently courts think there is some distinction: secret court proceedings, such as arraignment, hearing, trial and sentencing, require Washington pre-approval, while filing secret papers in court apparently do not. (But that’s secret.) “If you can’t see it, you can’t really criticize it,” said Loyola law professor Laurie Levenson. Both the DOJ and the federal court administrative office secretly avoided comment for the D.C. investigation about the growing number of secret federal cases.

SEALED RECORD PATTERN — INCLUDING OFFERS TO ‘PROTECT YOUR PRIVACY’ At some level it is hoped that judges who manipulate the power of office begin to recognize that what they are doing is wrong. Overtly, they appear to know because the first rule of protection for a sneaky judge is to minimize exposure — close off access to dirty deeds and eliminate any record that could come back to bite them later. In the early stages of preferential case handling, the judge may appear solicitous — of you — the target (i.e., the noninsider) — your comfort — your privacy. It may be an early hint that more special treatment will occur. Ex-wives of judges complained about sealed court records more than any other sneaky judge trick. No judge followed the rule for sealing — they just did it as a discretionary act. The wives’ records were so tightly sealed that two ex-wives were not allowed to see their own court records. The clerks simply refused to let them see any files. Another discovered her case file had been transferred to a different county, and then secretly sealed. Reporters34 were given “a yellow post-it note with a docket number, but no names of the parties or the judges or the lawyers, who sued whom …or whether it was granted or not.” Several wives were told to hire an attorney to see their files. When I (the newly retained attorney) went to court, I was told to file a motion; after a hearing, file was unsealed one time only so I could make a one copy of the records I wanted.

32

Jail-house informants, inherently unreliable, are often willing to lie for prosecutors in trade for prison favors. Sealing snitch names prevents investigation of repeated prosecutorial abuses in getting convictions with the same snitches.

33

The figures were collected for the first time by the Administrative Office of the U.S. Court in 2006, showing that 5,116 defendant cases were secret from 2003-2005 in D.C. For AP by Michael Sniffin and John Solomon, Thousands of Federal Cases Kept Secret, March 5, 2006, http://www.rcfp.org.

34

Tom Kearney, editor of the Keene Sentinel, as reported by Sarah Vos, Concord Monitor, November 18, 2002.

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My staff member was NOT allowed to do this task, and the clerk stood behind me to make sure I did not take the metal prongs out when I copied the file. The file was re-sealed. It happened in two ex-wife cases. This kind of treatment by court and judge staff is unacceptable. Under the Sixth Amendment constitutional presumption for openness in the courts, it reeks. Often people who find their court records sealed have no idea of how the file came to be sealed. Or they recall that the idea of sealing was one suggested by the judge as a courtesy to them — a favor offered to ‘protect your privacy.’

‘Your privacy’ is a euphemism.

Sealing actually sets the case up to hide the ‘special handling’ that will hurt you later. In hindsight, some of these high-powered insider divorce cases demonstrate that non-club members have much more to fear than lack of privacy. Sealing the case means hiding the paperwork. It is collateral, in case a judge’s spouse later claims the judge is biased, she can be discredited as acting in contempt of court. Sealing sets the stage for sanctions, if the spouse later decides to publicly question how the case is handled. That sounds extreme — but these cronyism cases get extreme fast, if a victim eventually decides to stop lying down or rolling over. Sealing orders become weapons. The victim of sealing orders discovers there is no place to go to complain about biased judge treatment. If the hearings are held in private, chances are much greater that the later stages of abuse will not be noticed, disclosed, reported, or investigated. So, it’s a nice touch for a judge to appear solicitous at the first hearing and ask the non-insider party if it’s okay to seal the case? This establishes some basis for the judge to conducted the case in secret — because the judge wants to pretend he is accommodating a request, or is acting ‘with the permission’ of both parties ‘who want to avoid embarrassment and protect their privacy.’

LOOK AT THE LANGUAGE OF SEALING If you can get access to the sealing order, the language, rationale, and circumstances often don’t fit: one divorce case was subject to overbroad sealing: The rationale/language for sealing was about “trade secrets.” There were no trade secrets, but the underlying authority (covering trade secret law.) The judge ‘borrowed’ authority from another area of law (intellectual property law) to make his act appear legitimate. The words were overbroad: such as “all information with respect to the law firm” — that phrase is so vague — it could mean sealing anything and everything. The appeals court approved ‘in camera hearings’ but overlooked the judge’s ex parte exclusion of one party from the hearing. (This exclusion happens more than anyone would guess.) Anything anyone deemed “confidential” was not only sealed, but the parties were supposed to separate it and lock it away, and had to return everything (including discovery) to the other side at the close of trial. These were all special orders, contravening normal court practices. But the insider joke was that only one side controlled all the critical documents.35 35

NH Supreme Court Docket 98-476, March 29, 2001.

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So, if a judge can make a sealing order appear to be merely giving both parties what they ask for, the judge can circumvent public policy (that requires openness in court cases and records,) but is able to provide a preferential handling to one side later. Then there is the weapon of contempt of court if the victim later tries to fight back against lying and special treatment. When Judge McGuire granted Attorney Nixon’s divorce sealing request, she initially sealed the whole divorce. As challenges from the wife arose, parts were opened. This sealing trick occurs in many other types of special VIP embarrassment cases:

CHAPTER

DIU dropped to speeding. When the former U.S. Senator’s son, Alan Rudman was arrested for drunken driving, the local police department claimed police department privacy rights and the local judge sealed the police and court files. Police privacy rights? Really? The records were opened after appeal.36

3

Embarrassment. Florida State Attorney Katherine Fernandez Rundle, charged with sexual harassment cover-up and retaliatory firing, got U.S. District Court Judge Shelby Highsmith to issue gag orders because her former secretary’s allegations were “embarrassing.”37 Take heart: A jury later awarded secretary Sherry Rossback $235,000 after finding the prosecutor/boss fired her in retaliation for whistle blowing about sexual harassment of the Chief of Major Crimes Unit Michael Band.38 Prominent embarrassment. The state bar association web site publishes some court decisions, and printed but redacted an order of Judge Robert Lynn regarding a prominent bar member, saying deletions were “to protect privacy of the litigants.” A side-by-side comparison suggests the deletions, relating to 10,000 porn photographs a father put on his children’s computer, (several uncharged felonies) related not to “the parties” but only to the Ol’Boy insider. Accidental sealing. In an interesting twist, the judge claimed she accidentally sealed a civil lawsuit where Sharon Stone’s attorneys sued the actress for $107,000 in attorney fees, which Stone disputed. It took over a month of repeated reporter requests over the missing court record before Judge Maureen Duffy-Lewis unsealed the files. No doubt — sealing a case or record is special treatment often reserved for VIPs. But probably not you, if you are reading this book. It’s your spouse — or his attorney — or some other insider that is receiving the courtesy. So don’t get roped into the special treatment routine. By design, the purpose of cronyism is to illegitimately favor one side, while dorking the other. It’s always a nice finesse if the judge can get a target to go along willingly.

LOST AND REMOVED FILES In lieu of sealing a file, the judge may simply remove it from the court — sometimes for weeks and months. When a judge takes a file, Clerks of Court claim it prevents anyone (including the parties) from seeing it. You can ask for an appointment to view your own file, but the excuses are limitless. The clerk may simply say, ‘the judge has the file” meaning no one can see it or can’t make an appointment to see it. When Associate Press reporters start asking for New Hampshire insider-preference files, this de facto sealing trick stood out as a privilege for insider-cronies: In a Coos County probate case involving a former judge’s alleged mishandling of money of his elderly client, the judge took all the case files home with him indefinitely so reporters could never see it. AP traveled to a remote courthouse at the northernmost part of the state only to be told repeatedly “the judge has the file.” Associated 36

Richard Lessner, Sr. Editor, Union Leader, When Newspapers Sue.

37

Miami Herald, http://www.herald.com, July 20, 2000. The allegations included “phone sex with an imprisioned hit man; a female prosecutor describing the killers erection; groping; sexual assault; extramarital sex at the States Attorneys Office; sex with government witnesses, and drunken office parties.”

38

AP, “Secret’ Sharon Stone lawsuit unsealed, Yahoo News!”, April 26, 2009.

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Press finally threatened a lawsuit, and the file was returned to court and transferred to a new, less protective judge.39 A second round of “privacy” arguments to seal the proceedings went up to the state Supreme Court — the former judge’s old stomping grounds, where he lost — I suspect because the AP had intervened and used a bigger Ol’Boy firm as their counsel. A variation was when the judge ordered court clerks to promptly fax all court-filed pleadings in an Insider divorce case to his home for his immediate attention.40 Other times, it seems to be more judicial disorganization that caused lost files: A Merrimack County marital master was notorious for putting court records in the trunk of her car. One case, the entire court file was lost for six months, and a search of the master’s car trunk failed to locate it. The clerk kept telling me it ‘was lost’. Eventually the record was located at the home of ‘Dizzy Debbie’, and the final order for divorce was finally entered. In the meantime, my client could not get any recognition of her divorce. I attended monthly meetings of the National Coalition for Family Justice headquartered in Tarrytown, where an attorney related that the opposing attorney somehow mysteriously ended up with boxes of confidential court files. The attorney took the records back to court and left them. The pro se mother filed in court to find out how the opposing attorney came into possession of confidential court records in the first place. She was ignored, even after she asked for a hearing to investigate how confidential court records were given to one side. No attempt was made to index, account for, or certify the completeness of the boxes returned to court. Other times, within the case file, pleadings are simply missing.41 A party reviewing the file discovers that their pleadings, objections, exhibits, are simply gone. It is not unusual for clerks to lose files. You ask to view the file (a public record), but are told it is not available and no one has any idea where it might be. I usually ask the clerk to look in the file drawer immediately before and after the after missing number. And it can be judicial misconduct because judges don’t have to follow the rules: Judge Coffey — a judge with a multitude of rulings favorable to the insiders, accepted an ex parte filing of my husband’s financial affidavit. He wrote on the service of process signature line, ‘I will not give a copy to my wife because she is a liar and can’t be trusted.’ He mailed me a blank copy. The judge kept Chuck’s financial affidavit on her desk for two weeks, while Clerk of Court Bryan Kenyon claimed every day he was unable to give me a copy. Finally the judge wrote an order that the financial affidavit was true and accurate and she denied support — all without my knowledge or input.42 The mandatory court rule is for parties exchange financial affidavits at least ten days before a financial hearing to prevent ambush and provide a minimum 10 days time to prepare for defense.43

39

Bertha M. Chapman, as Administratrix of the Estate of Mary H. Chapman v. Charles G. Douglas III, Coos County Probate Court No 99487; NH Supreme Court Docket 99-487.

40

Secret memo of Judge J. Nadeau, Merrimack Superior Court, Douglas v. Douglas, Docket 96-M-1150.

41

It is highly recommended that parties suspecting judicial abuse periodically review their court files for what is missing, altered, and or the surprise document in the judge’s or clerk’s handwriting. Make sure to take a photo on the spot with your camera phone or copier — because it may go missing later. Oh, I forgot — often only attorneys are allowed to take a camera phone into the courthouse.

42

The Associate Press hired NH Ol’Boy law firm Orr & Reno to intervene to uphold state open-court-file-law, established in one of Chuck’s earlier divorces (Petition of Keene Sentinel). See Petition of Intervenor AP, NH Supreme Court No. 98-476.

43

Not only is the exchange of verified sworn financial disclosures required by court rule, it was identified more fully as a 10-day period before any hearing. See N.H. Supreme Court case in Shafmaster, 138 N.H. 460 (1994).

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DISAPPEARING FILES TRICK — THE CASE TRANSFER

CHAPTER

In a controversial case involving attorney misappropriation of assets of the estate of an incompetent elderly woman44 the case was docketed originally in one county, but was mysteriously transferred three times to other counties, each time getting a new docket/case title and number.

3

I wanted to attend the hearings to see for myself if the attorney had gifted himself with his client’s oceanfront home. (He charged the Alzheimer’s widow $20,000 for simple trust/estate-planning, and took the half-million dollar estate as payment.) I found I had trouble locating the court records or viewing them, and finding the hearings. I located one hearing (it had been moved across state), entered the courtroom to sat in the front row. When Judge Linda Dalianis entered (‘specially appointed to hear the case), she did a double take seeing me. She called the case to announce she was continuing the hearing. Then the case got transferred to yet another county (3rd), and assigned a third number. After that, the case sort-of evaporated from public view, as the file zigzagged around the state. Still, one end result was Attorney John Coffey was disbarred. I don’t know if the woman’s distant heirs eventually received her Hampton Beach oceanfront home, but know the matter came to light only because the woman’s long-time gardener complained publicly for years about the Coffey lawyer dishonesty before anything happened.

DISAPPEARING AFTER TRIAL Another example comes from Idaho Falls where Seventh District Judge W.H. Woodland prevented the press from accessing information in court records after a Boy Scout Leader was convicted of molesting four boys. All of the case documents just disappeared at court.45 Hon. Leroy Runtree Hassell, Sr. Senior Chief Justice of Virginia noted his concern about the widespread Virginia practice of cases being placed under seal inappropriately — he opined it was perhaps to avoid embarrassment to the law firm involved or to avoid public discussion of the cases.46

ANONYMOUS PSEUDONYMS Sometimes, the judge suggests or approves the use of pseudonyms for the parties, as in the divorce of New Hampshire Attorney General John Doe and his wife Jane.47 Other times, as in the Northern District of Indiana, a wealthy party will ask the court to grant a motion to use another name to keep the case secret. In that matter, the real name may stay on the public docket, but the case disappears. When the judge initiates pseudonyms, the case never shows up anywhere.

EXPUNGING THE RECORD Ostensibly court cases have ordinary safeguards to prevent unfairness and abuse. One safeguard is the integrity of the court record because documents filed in court, evidence received in hearings, and documentation of what occurred in the courtroom- are maintained by the clerks of court under controlled conditions. If a judge is corrupted, the official record may be altered or obliterated by staff — then there is nothing to support potential charges of unfair manipulation or unprofessional behavior.

44

Attorney John Coffey, husband of my judge Patricia Coffey, referenced in several examples in this book. Both subsequently (years later) were disbarred and or removed from office. The Bar/Court sometimes responds to a compound, cumulative public outcry.

45

Idaho Falls Post-Register sought court records of Brad Stowell, December 1997.

46

Writ Panel, Moseley v. Plofohan & Associates, (Virginia) July 8, 2007.

47

“Jane” was told the pseudonym was to avoid her embarrassment, although allegations that surfaced against the state’s highest law enforcement officer in their divorce case proved to be much more embarrassing and criminal regarding him (not the wife).

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Hand in hand with this trick is to avoid making any record at all. (See Transcript Tricks). That prevents a record from being made, but if it is too late, and the records is created, then a second method of damage control is to expunge the record.

Expunging means the court record is shredded and erased — there is no evidence the case ever existed. It’s not in the computer or the record room.

There are times where this may be an appropriate or desirable action — expunging a juvenile record, for example, or some unfairness in the allegations. I also believe in reform — where embarrassing early life mistakes may unfairly affect more mature life in an age of electronic snooping. I believe paroles and felons should be able to vote in elections, and that long sentences should be reviewed periodically as a social function of the virtues of forgiveness and redemption. Not as a right necessarily — but a mercy. There are, undoubtedly, times when expungement is appropriate or compassionate for a second chance. However, as a judge favor-technique, it is often utilized to cleanse the part or all of records as an insider favor to ol’boys over their dalliances and peccadilloes that reach the level of law enforcement in society. Expungement — quietly and without notice and hearing — gets ordered as a favor to avoid embarrassment or prevent an investigation of criminal charges or abuse of authority or acting improperly. It is an especially suspect when it relates to some allegation of improper judicial conduct in the underlying proceedings. Abuse means the judge uses his ‘court-given-power’ to protect him or other insiders from investigation. Expungement may occur before, during or after trial.

32 COMPUTERIZED DOCKETING

§

48

The New Hampshire court’s computerized docketing information (either at the county or state level) during the 15+ years I went to court was never generally-available either on-line or in-person to the public.49 The court administrator50 claimed there was no central repository for docketing data51 because it was impossible to electronically filter the public cases from the non-public cases. So if anyone wanted to search the state superior court records, for example to look for all the cases heard by one particular judge, that person would need to drive around to all ten county courthouses and confront ten separate court clerks and make ten or more request record searches, and all in person. Court clerk time is apparently precious, so the clerks say they cannot (or do not) allow public access to their computer docket screens (as you stand in front of their bulletproof glassed at public counters.) Especially if for some unfathomable reason, (since you have never seen the clerk before) they don’t like you. If I wanted data (such as all the cases decided by a particular judge or maybe all the plea-bargain cases within the last two years) that kind of data is not available from the court. To the extent that private companies, such as Lexis or Westlaw have data on-line, it does not include this kind of lower court docket/case data. So, no way to search my judge’s special handling techniques in other cases. 48

This section does not reflect the warp speed of new technologies in electronic document handling and distance data transmission in federal and state court in 2016. The last decade judges embraced the electronic practice of law because attorneys and judges invested in updated proprietary electronic data access (for insiders, without equal provision for adequate or comparable public access.)

49

This is not the practice in some states — even little New Mexico, where I moved, has computerized case docketing. It has lots of errors and case omissions, is tedious, but the public can key-in “nm court-lookup.com” and ostensibly search all state court docket lists online. It’s not easy or complete, but it’s something.

50

Donald Goodnow, director of the Administrative Office of the Courts; working with Judges David Brock and JNad.

51

There is no public index.

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CHAPTER

Computerized docket searches were made impossible in New Hampshire, because the court’s computer specialist reprogrammed the Sustain program system to incorporate confidential case information into the public general database. This allowed the clerks to claim that because private information is mixed with pubic information, the public cannot see any of it. The Gadfly, Theodore Kamasinski (who was a computer programmer as well as extraordinary legal researcher) began digging out why New Hampshire’s court docketing system was so secret. He called and talked to the software designer and the company that sold Sustain to several other state court systems. No one except New Hampshire had public access issues. Theo filed a case for court public data and took a deposition of the state court IT expert Donald Goodnow.52

3

The legislature provides certain types of cases should be confidential — such as juvenile cases and trade secrets.53 Because the administrator re-programmed the mix of confidential data with public data, court clerks cannot produce only public data. (Remember those oversized counter-books that sat on the public counter in California courts?) So the state court programmer mixed the 99.5% public cases with the 0.50% confidential records. The software was initially designed to keep separate those confidential dockets, but in a subpoenaed deposition,54 the court administrator admitted his alteration to the original programming. The state Gadfly instituted a class action lawsuit to open the electronic alphabetical index of public court documents (called the case index.) Why, you ask, would the court want to mix in confidential dockets to avoid disclosing or making readily public docket numbers and names? Clerk Goodnow said it was a matter of “a compelling right to privacy” while J. Nadeau said, “there’s a right to privacy and we’re certainly going to go slowly.”55 Aren’t they acting in defiance of what the legislature passed as public policy? But the logical answer is that information is power — and the court needs to prevent any uncontrollable external review of its data. Especially by meddling gadflies, the Associated Press, or heavens forbid, any ex wives of judges. Access to information — especially information necessary to research and analyze the institution — is available only to the court — and their very proprietary control of all data prevents any other branch of government or private entity from accessing it. All analysis, interpretation, and reporting about court functioning therefore comes only from court personnel and staff. It is a means of controlling information which otherwise may not be flattering to the court or could lead to demand for accountability — for example, from the legislature or the Department of Justice. Or more likely, from one of the few reporters willing to report judge abuse. Judge image as arbiters of justice and integrity requires that all judge accountability to remain internal. Not part of any other branch of government,56 or the general public and press. That’s the court’s reasoning (it’s flawed logic.) But it’s justification for controlling the raw data of court functioning. Courts avoid dissemination of unregulated and uncensored information, they prevent data searches, cross-referencing, and higher applied forms of data analysis. They prefer to appear impeccable and without problem.

52

He subsequently served as a chairman of a national court-data administrative committee. Knowing how bar committees work, that probably represents free trips and a closed national forum to share his unique policy ideas about “a compelling right to privacy” that allowed him to mix public and private court data, to make an all private state wide data base.

53

A misapplied Trade Secret Privacy argument was the reason for super-sealing my own business records in discovery in my divorce. Chuck argued, and JNad jumped on this misguided excuse to prevent me from viewing, storing, copying, and letting my expert witnesses see and process former Douglas & Douglas business records even though JNad has dissolved the firm at the first ex parte hearing without notice.

54

Theodore Kamasinski v. Judge Brock, Goodnow, J. Nadeau, U.S. District Court for District NH, 98-CV-269-SD (April, 1998).

55 (Like a glacier, I might add.) See http://www.boston.com/dailynews/wirehtml….Legal-reform_advocate_sues_N-H-court. April 28, 1998. Also see Union Leader, A4, April 28, 1998; Fosters, “Open Means Access,” May 2, 1998. 56

Kudos to Senator Grassley of the U.S. Senate Judiciary Committee — Oversight for his understanding and efforts.

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Howard Zibel, Clerk of the State Supreme Court, testified to a legislative study committee,57 “you can trust us. They don’t need oversight” — just weeks before he blew the whistle to the state attorney general about Supreme Court judge insider self-dealing.58 This trust-us-theme is the sacred expression of judges, often repeated by rote, when judges seek to reassure outsiders to butt-out.

It implies — Don’t trust yourself. Trust us. We will tell you. We are law.

The Judicial Conference of the United States has been framing policy guidelines since 1922. They say there is no public right of access to electronic court data. However their assignment was to make advisory recommendations and annual reports at a big expense-paid judges conference, which then makes recommendations to the U.S. Supreme Court who adopts and interprets its own rules. In 2007, the same Judicial Conference “urged all federal courts to end the practice whereby some cases under seal “vanish” from electronic dockets and databases”59 after “media organizations…reported as many as 18% of criminal cases filed in D.C. federal court were missing or “undocketed.” Other allegedly ‘external audits’ of courts are done periodically by bar associations or organizations like the American Judicature Society — all appear to be self-interested internal organizations — vested in maintaining the appearance of integrity, but designed to preserve the essential aspects of status quo power of the court system. Especially when it is abusive. The distinction is none of these groups find a public right to the court’s compilation of electronic data.60 When JNad stood for Executive Council confirmation hearings, The Gadfly and others tried to obtain a list of cases he had presided over. At hearing, the judge claimed there was no list, and he had no record and couldn’t remember but a few — (D&D and the Bonser cases being two he remembered.) By hiding electronic data from the public, or storing it so it cannot be accessed, judges hide from comprehensive (outside) review of their individual and institutional practices. They evade quality review, oversight, and analysis of judge behaviors — individually and collectively. The lack of transparency alone is indicia of a need to hide data that could prove (or disprove) how unreliably and inefficiently the institution functions.

SECRET DOCKET Secret dockets provide judges with a method to remove public information from public view. Secret handling of secret cases creates two-tiers of record-keeping — public cases and secret cases. By now, if you are new to the court system, all this secrecy in court administration begins to get confusing — and wearing. These are public records for gosh sake! But bear with me for the almost-last of the hiding court public records tricks courts practice. This one is at the top level of state court power.

57

Zibel testimony to NH Senate Study Committee on Judicial Conduct, January 12, 2000, supra.

58

Zibel avoided the direct institutional retaliation to attorneys who blow the whistle on judges. He was instead transferred for the Chief Clerk position at the courthouse, to a newly created position as Legislative Liaison at the Statehouse. He was installed into a newly created position as General Counsel to the Supreme Court. His duties included being liason to the legislature, and all he knew about the corruption in the court was attorneyclient privileged. See https:..das.nh.gov/directory/prosSearch_dept.asp?ela=div&deptList=541

59

Tony Mauro, Judicial Conference Urges End to ‘Secret’ Dockets, Law.com, April 5, 2007.

60

In court there is no open government. The press, pro se, and the gadfly are all that stand between a well-funded elite power-grabbing government entity and American concepts of open government and accountability. The latter is losing.

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The first time I heard about a secret docket occurred when I was trying to read the original material in one of my complaints. I didn’t recognize the docket number — SMC 97-001. It sounded like James Bond — double-oh-seven. The clerk at the Supreme Court said, “Oh, you have a secret docket number!” She said I was not allowed to see my file. Eventually, I insisted and got a future appointment.61 Days later I was led to an unmarked room on another floor behind the library stacks where state’s secret court files were kept in an unmarked, locked room.

CHAPTER

At the 2000 New Hampshire legislative impeachment hearings, several Supreme Court judges testified they knew nothing about the secret state docket. As it turns out, numerous states use secret dockets to hide prominent divorces and cases the court considers ‘super-secret.’

3

For secret dockets, all information, the parties names, the type of case and all court filings are excluded from public data records and court dockets. As far as the public is concerned, the case doesn’t exist.

This secret docketing system had been in place for several decades in New Hampshire — but at the impeachment hearings, no one could remember how it came about. One thought it was largely to docket professional conduct complaints on appeal, or other cases with “embarrassing information” which a party or prosecutor might want keep secret. Unfortunately, if you ask to see the list of secret docket cases, almost all the names are redacted so all you see is docket numbers. It’s still secret — (when it’s not at the home of the court’s ethics lawyer) — and still unavailable. Some judges claimed it was set up and decided solely by the court clerk. That would be likely Attorney Howard Zibel, the N.H. whistle-blowing clerk of court.62 He also testified “[t]here are times when human decency mandates secrecy,” and “[t]here are things that should just be confidential.” He further explained that he was referring largely to personal problems of judges — not to the many criminal defendants and ordinary beings who use the courts and are put into public dockets.63 I have to admit, I’m not crazy about having my personal life exposed, but sometimes in life, that is the lesser of two evils, and there is little alternative.

Just shut up, close your eyes, keep your license.

At one point, Mr. Zibel told me, “Caroline, we’re not evil; we’re not all that bad.” That’s how the judges and staff perceive themselves — what they want to believe. From up in the judge-tower, they look down at what they do as just a series of small quiet favors — covering for each other out of human decency.

As ever for me, it’s those people who don’t get covered, who miss out on the human decency being passed out at court — those on the down side of the small favors, those who wind up losing, broke, incarcerated, and all the unfavorable outcomes that come from passing out insider process. Howie sees it his boss’s way; I see it mine. Same picture. Different point-of-view.

61

I have learned to develop my tendency to be persistent with authority when denied what I have a right to/for. This requires a certain amount of bulldog tenaciousness. Forensic handwriting expert Dacia Weist in Albuquerque said that trait is obvious in my handwriting.

62

Or his predecessor, attorney/Clerk of the Supreme Court Emile Bussiere (the unreported lender in the Stephen Thayer case, and the complainant in the Roberge PCC case.) Both sophisticated political attorneys who see and understand the underpinning of court.

63

Nancy West, staff reporter on courts, Secret Court Docket Revealed, Union Leader, September 3, 2000.

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Legislator Stretch Kennedy said this secret docket was disclosed in the Judge Fairbanks scandal a decade before, but judges and legislators ignored or overlooked it. I suspect it was judges who wanted to keep secret all information about how the cases were charged and administered. No one, parties included, were aware some cases were in a secret docket. The labeling of these cases is confusing enough that new initials in the numbering system attracted no noticeable attention — even from this author. Secret docket cases apparently were personal cases of ol’boys with embarrassing professional conduct issues before the court or alternatively, cases where the ol’boys applied professional retaliation or were otherwise misusing the legal system, but wanted to avoid media scrutiny. In 2000, after ‘special matters confidential’ got disclosed at legislative impeachment hearings, the court released a list of 192 pending cases, but all but six have no names. It had no plans to stop the secret system.64

BURYING THE BODIES It appears a whole group of cases where the state acted in excess of jurisdiction in child abuse and termination of parental rights areas — were included for special secret docket handling. Sometimes, marital masters had conducted the trials (instead of judges) or the state lacked jurisdiction over an out-of-state party,65 but orders issued anyway. These unconstitutional mistakes ended up in the special secret docket. Two years after the Secret Docket was exposed during impeachment hearings, one attorney who works almost exclusively in the area of constitutional challenges to the state’s termination of parental rights/child abuse handling66 asked to see the former secret docket list. She was not allowed to copy the list. It is still quasi-secret. But she was allowed to view the secret list for the years 1998 and 2001. Lists for the years 1999 and 2000 “are currently missing,” but the personal ethics lawyer for the Supreme Court judges took at least one year of cases to her home. “Eileen Fox says she has 2000 at home right now, but she’ll obviously bring it back.” Best guess is that at least some cases involve judge-jurisdictional impropriety — where a marital master assumed a degree of authority reserved only for judges (such as termination of parental rights, or removing children from parents who were said unfit.)67 This is not a minor mistake.

So someone without authority took a child and terminated the parent’s rights? Then someone else recognized the error and hid the file?

In other words, when there were clear court constitutional level screw-ups by judges, the files went dark? Some cases were not published and were put in secret dockets; also the names of all parties and the names of attorneys were omitted; (the cases also had an anonymous title, such as “Peter L.”). This included a case that went up to the U.S. Supreme Court on appeal. Another involved “one poor guy [who] signed [a] consent decree stating that his wife neglected [the] kids, and they [the state agency] proceeded to terminate his rights!”

64

Katheryn Marchocki, Supreme Court Acknowledges Confidential Case Handling, Union Leader, September 8, 2000.

65

UCCJA is the Uniform Child Custody Jurisdiction Act; some version of this national model act, or the UCCJEA is in every state. They cover interstate custody disputes. The PKPA (Parental Kidnapping Prevention Act) is federal law.

66

See nhdcyf.info/rsa/169-c.html

67

Author’s note: I thought the same thing when a judge appointed an attorney-friend and ended up giving him law enforcement power to enter anytime and search my home without a warrant. See, § Acting in Excess of Jurisdiction.

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States that hide cases in secret dockets, (including hiding the secret docket from their own judiciary) include Connecticut, California, New Hampshire, Georgia, Arkansas, Wisconsin, Hawaii, Florida and the federal courts.68

“THOUSANDS OF CASES OVER A 38-YEAR PERIOD”

CHAPTER

The Hartford Courant69 sued to get dockets opened in Connecticut despite decades of state court sealing as favors to prominent people. Some cases the court would not “acknowledge the cases even existed.70

3

The Eleventh Circuit however ruled “the maintenance of a public and a sealed docket is inconsistent with affording the various interests of the public and the press meaningful access to criminal proceedings.”71 This doesn’t help in the civil and matrimonial cases. It appears one has to be a criminal to be afforded constitutional protection. But what if the judge is acting criminally? Would that count?

CONSTITUTIONAL LEVEL ABUSE There are First Amendment, Due Process, Civil Rights, and other Constitutional arguments relating to abuses created by courts with secret court dockets. Let’s not call it “courts”. It’s human beings who established the system and who operate it. Somewhere, some judge thought this up, set it up, and other individuals followed, using the secret system to help some peers and friends deserving of ‘simple human decency’, or to cover over retaliatory prosecution of attorneys, or egregious Constitutional errors of courts. Over the last decade, Homeland Security and an abundance of Presidential Executive Orders [called E.O.s] have resulted in severe abuse of rights of both foreign and American citizens — concealed by the governmental use of sealed records and secret dockets. Secret means not even judges at the highest levels of administration — no one outside of the elite ‘makers’ know the secret cases exist. To be clear, courts have no authority to make secret dockets. By (mis)using the internal administrative authority of courts, judges create need-to-know circles of insiders. They have not followed standardized protocol for sealing, such as filing a motion, and they systemically remove a select body of cases from public view and oversight. Simply put, they have created an abusive, patently unconstitutional process for hiding whatever case they unilaterally decide to hide.72 But, as the ex-wives-of-judges cases demonstrate, denial of due process is not limited to cases of alleged terrorist and court whistleblowers. The courts use secret dockets to bury the bodies of judicial and government abusers. Secret court dockets apparently began in the 1980s to protect court-insiders from public scrutiny, but the practice is now systematically used to cover-up the court’s own dirty laundry.

68

See report of the Reporters Committee for Freedom of the Press, Secret Justice: Secret Dockets, Summer 2003.

69

One of three top court-reporting news sources in the country: the other two are Times-Picayune and the Associated Press national news source. This case was The Hartford Courtant Company v. Pellegrino, 03-9141. The story first appeared in the Connecticut Law Tribune, an affiliate of the New York Law Journal.

70

Mark Hamblett, “Papers Wins [sic] Right to Inspect Court Dockets”, New York Lawyer, June 9, 2004.

71

The criminal case of Columbian drug trafficker Fabio Ochao-Vasquez in Florida.

72

The Reporter’s Series for Freedom of the Press publishes a legal-fellows series called the Secret Justice Series, the McCormick-Tribune.

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33 SECRET COURTS

§

When I first began writing, the idea of secret courts in America was unthinkable and un-American. Sadly, all the way around, I am still writing and secret courts are no longer shocking, or even unthinkable. Here’s a list of entities that just sprung into being and took over — they set up shop as an internal administrative practice — claiming a Constitutional Article III function to set up ‘private’ courts and judging others secretly:

1. FISA COURTS (FOREIGN INTELLIGENCE SERVICE ACT OF 1978)

a. These handpicked FISA judges are selected by the Chief Justice73 and are not confirmed or vetted by Congress or the Executive or anyone. b. From 1978 until 2013, the names of the 71 FISA judges (past and present) were secret.74 c. FBI and NSA use FISA courts most for secret warrants and secret trials. d. Edward Snowdon leaked an FISA court order ordering Verizon to report citizen call information;75 Yahoo also tried to appeal a secret FISA court order. e. FISA judges have granted over 34,000 secret phone warrants (about 99% of warrants requested are granted). f. The power of FISA judges has been called ‘almost parallel in power to the U.S. Supreme Court’. g. The dockets, records, hearings and trials are all closed to the public. In fact, trials and hearings are ex parte — with only the FISA judges and the prosecution present. h. FISA courts operate for the benefit of two secret government agencies: i. The National Security Agency — conducts secret surveillance, arrests and detainment, trials, and executions of U.S. citizens; j. The Central Intelligence Agency — a four-year, forty-million-dollar top-secret detention and interrogation program being investigated by the Department of Justice and a U.S. Senate subcommittee in 2014. The CIA continues to monitor and redact its own reports provided to investigations in 2014.76

2. ARBITRATION COURTS Another form of secret court is the state court practice of ordering “arbitration programs”, special extra-court “assignments”, and other litigant-paid court processes that generate fees for judging functions, and that serve to remove the case handling from trial and appeal processes, and provide for certain types of litigation in secret.77 It is popular with big business, to avoid public records in cases involving tort liability, for example, where other similar cases are pending, and for extremely wealthy, to avoid exposure of discomforting claims that might crush a defendant’s public image.

3. IMMIGRATION AND MILITARY TRIBUNALS REGULARLY HOLD CLOSED AND SECRET HEARINGS. The legendary abuses of INS show capricious political railroading people without due process. For in depth examples of INS illegal behavior78 including DOJ deputies lying in court for a decade, read the bio of Soviet immigrant/super capitalist 73

U.S. Supreme Court Chief Justice John Roberts hand picks FISA judges without oversight.

74

Brian Albert, from Eastern Virginia, operated as the only secret FISA judge from January 1, 1978 until four others were appointed five months later. There have been 7 women and 64 men appointed without outside oversight.

75

Reported by the NY Times.

76

President George Bush authorized this extra-judicial, secret surveillance/detention program. These actions are political but non-partisan. If readers try to divide sneaky court processes into one or the other political party, they will miss the bigger picture.

77

See Brett Snyder, Esquire, Delaware ‘Secret Courts” Case Denied Supreme Court Review, Findlaw, Thompson Reuters, March 24, 2014.

78

INS (Immigration and Naturalization Services) since 2003 is part of Homeland Security and is called USCIS (Citizenship and Immigration Services); and ICE (Immigration and Customs Enforcement); and CBP (Customs and Border Protection). INS is the investigative and enforcement arm of ICE. see https://en.wikipedia.org/wiki/Immigration-and-Naturalization-Service.

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Alex Konanykhin.79 The DOJ internal investigation was nothing more than an effort to “take the heat off and deflect an embarrassing situation” of trying to please Soviets by illegally jailing and railroading an American émigré and his wife.80

CHAPTER

4. CHILD PROTECTION ACT

3

Child Protection Act calls for secret trials in juvenile proceedings about child abuse and termination of parental rights, (which often include pro se parties.) The public impression is parental rights are protected by state-appointed attorneys in criminal and juvenile cases. Unfortunately — this is another class of cases notorious for ignoring constitutional rights of parents, including fit but non-custodial parents. They often don’t get notice or a free lawyer, and can lose parental rights without even a charge, much less evidence they abused or neglected their child. Innocent parents also get charged with the costs of ‘services’ including foster care, even when the state denied them parents’ rights. Courts automatically seal and use secret dockets to hide these unconstitutional practices, providing plenty of reasons to mistrust the sealing policy.

5. MANY REGULATORY AGENCIES Many regulatory agencies, such as the FAA (Federal Aviation Agency) issue legal notices, hold hearings, make rulings and issue orders, fines and sanctions in matters without authority at law. These administrative law judges conduct private administrative hearings that evade court-protections, at least until challenged later on appeal in a court of law. To the extent administrators act illegally, it is up to the defendant to bear the burdens and the costs to challenge. Drones. For example, see the $10,000 fine assessed by the FAA against ‘Trappy’ Piker for allegedly violating voluntary compliance model-airplane operating standards by taking video while flying a four-pound RiteWing model plane at the University of Virginia.81 Voluntary Compliance Violation. FAA authority? A 1981 advisory circular for modelers.82

6. OTHER FEDERAL AGENCIES Other federal agencies do a blanket removal of citizen from the ordinary constitutional process, to handle cases internally in a manner that is highly flawed. a. For example, internal processes often involve self-insured, self-interested government programs, that limit damages, have excessively long waits, are understaffed, and have internal administrative process, are usually closed to the public, with questionable constitutional protection.

79

Alex Konanykhin, Defiance. How to Succeed in Business Despite Being Hounded by the KGB, The INS, The Department of Homeland Security, The Department of Justice, Interpol, and Mafia Hit Men, A True Story, Renaissance Publishing (2006).

80

Attorneys from Arent Fox called an internal affairs investigation of this misconduct by the DOJ Office of Professional Responsibility, “the Department of Cover-Up,” Id at 94.

81

Huerta v. FAA Director Parker, National Transportation Safety Board, Docket No. CP-217, March 6, 2014; United State of American National Transportation Safety Board Office of Administrative Law Judges.

USA Patriot Act, Title II: Enhanced Surveillance Procedures, (extending the Foreign Intelligence Surveillance Act of 1978 to cover in-country and American citizen; and the Communications Privacy Act of 1986) (Note: this is an oxymoron). Title II has a sunset clause first slated to expire 2005, then 2006 all the way up to 2015. It just doesn’t die. Larry Klayman of the Freedom Foundation brought a successful 4th Amendment lawsuit seeking to stop NSA mass cell phone metadata collection and storage as unconstitutional. Klayman et al v. Obama et al, U.S. District Court for the District of Columbia, Civil Action No 13-851, also Klayman v. Obama, 957 F.Supp. 2d 1 (D.D.C. 2013), vacated and remanded, 800 F.3d 559 (D.C. Cir 2015). Although due to expire in 2015/2016, the USA Patriot Act was replaced by the USA Freedom Act, enacted June 2, 2015, which allows FISC courts to require telecommunications service providers to run targeted queries from their metatdata bases and produce them to the NSA.

See Jason Ditz, @ http://news.antiwar.com/2014/04/07 supreme-court-ducks-nsa-surveillance-case/

The UK Guardian, “White House seeks Legal Immunity for Firms that Hand Over Customer Data”, May 2, 2014.

82

See hobbyking.com; also Kelsey Atherton, Judge Strikes Down FAA Ban on Commercial Drones, Popular Science, March 7, 2014.

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b. The Longshore and Harbor Worker’s Compensation Act (creating a Department of Labor court) is seriously under staffed, resulting in claimants who wait years (and have even died) all while being squeezed from receiving benefits.83 They get forced by time into accepting inadequate lump-sum payments, with denial of claims that can lead to bankruptcy and foreclosure while waiting for a hearing. It follows a classic insuranceindustry litigation model. It sounds about as effective as the VA veteran’s health-care management system. c. Immigration Law d. Whistleblower Law e. Workman’s Compensation f. Native American Indian tribes — Under current law in 2014, Washington tribes must assert an opt-out provision if they want to use their Native American tribal rights jurisdiction conferred by the Federal Indian Child Welfare Act. State laws treat Indian tribes like wards of the state. g. The infamous winner for denial of citizen civil rights is the west-coast large scale Japanese-American Interment during WWII at Manzanar, Camp Minidoka, Puyallup, and other locked barb wire interment camps for American citizens based on their heritage.84 h. Guantanamo lockup/U.S. Citizen killing under unspecified claims of terrorism i. Prisoner (non) release upon orders of exoneration

7. COURT/BAR DISCIPLINARY PROCEEDINGS. Judicial conduct investigations administer internal and informal discipline of judges; with a much harsher attorney discipline process/system with internal trials (that mimic a Constitutional trial.)

8. TERRORISM AUTHORITY. Legal justification for some secret surveillance and secret trials stems out of §215 of the Patriot Act85 (and it’s afterborn sibling) which continues to have apparently unlimited powers, unchecked by Congress, to deal with “terrorism” — an undefined catch-all phrase that applies extreme acts of criminal prosecution without authority under existing laws. It’s all very amorphous and easy for unnamed ‘government agents’ to label someone a terrorist or worse yet, ‘a potential terrorist,’ based on a person’s political, religious, nationalistic, and life-style affinities. Dangerous stuff, which has been removed from the normal constitutional court processes by purely administrative acts and executive Presidential orders that extend and inflate questionable law and law-enforcement practices against citizens. We cited how corrupted the DOJ Office of Professional Responsibility was with its internal affairs investigation at INS. Here’s a second opinion:

83

Jim Morris, Rising Caseload Fewer Labor Judges Triggers a Painful Mix for Suffering Laborers, Center for Public Integrity website, December 19, 2013.

84

Monica Sone, Nisei Daughter, University of Washington Press, (1953).

85

USA Patriot Act, Title II: Enhanced Surveillance Procedures, (extending the Foreign Intelligence Surveillance Act of 1978 to cover in-country and American citizen; and the Communications Privacy Act of 1986) (Note: this is an oxymoron). Title II has a sunset clause first slated to expire 2005, then 2006 all the way up to 2015. It just doesn’t die. Civil Rights Attorney Larry Klayman of the Freedom Foundation brought a successful 4th Amendment lawsuit seeking to stop NSA mass cell phone metadata collection and storage as unconstitutional. Klayman et al v. Obama et al, U.S. District Court for the District of Columbia, Civil Action No 13-851, also Klayman v. Obama, 957 F.Supp. 2d 1 (D.D.C. 2013), vacated and remanded, 800 F.3d 559 (D.C. Cir 2015). Although due to expire in 2015/2016, the USA Patriot Act was replaced by the USA Freedom Act, enacted June 2, 2015, which allows FISC courts to require telecommunications service providers to run targeted queries from their metatdata bases and produce them to the NSA.

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The Justice Department’s efforts to keep the [NSA and FBI] scandal out of the courts, arguing the lower courts don’t have jurisdiction and the higher courts shouldn’t touch it so soon.86

“VOIDING THE LAWSUITS”

CHAPTER

President Obama in 2014 proposed NSA ‘reforms’ to include retroactive expungement and full immunity for Verizon and other telecommunications companies who turn over customer data under secret FISA court orders. His Congressional proposal called for “voiding lawsuits against them.”87

3

We’re not talking exoneration, or presidential pardon — powers the President holds. We’re not talking the Dr. ElizabethMorgan-get-out-of-jail private law passed by Congress. He’s talking about erasing citizen/customer privacy lawsuit rights against the phone company. A Congressional blanket erasure of a citizen’s right to sue. Retroactively. They’re calling it “legal immunity.” Let’s reframe the issue to clarify a murky and sensitive area/”terrorist”/safety/issue: Is that voiding a secret court order, in a secret court case, in a secret court, made by a secret judge, appointed by Chief Justice Roberts? Or is that voiding all the customer lawsuits against the secret order, secret case, secret court, secret judge that breached their privacy? Aren’t both unconstitutional? Could the President in calling for ‘legal immunity’ here — be considered an example of the Josephson Institute Doctrine of Relative Filth? I never had an actual concrete example of that until now.

If I’m lying. If you know that I’m lying. If I know that you know that I’m lying. Does that make it true?

I’m also wondering about jurisdiction here, and maybe to ask not only the question about legal precedent, but the constitutionality of a President stimulating Congress to forgive and forget by telling the judges what to do — namely to prevent all citizens from suing in court when a private corporation violates their privacy. Study Question: … if Congress can void a whole mess of court lawsuits, why can’t Congress for example, void all those cases where the judges have usurped Congressional authority — like, for example, the presidential election case? Humm. Notice also how this story was covered in the British press, not American media? That happens a lot.

86

See Jason Ditz, @ http://news.antiwar.com/2014/04/07 supreme-court-ducks-nsa-surveillance-case/

87

The UK Guardian, “White House seeks Legal Immunity for Firms that Hand Over Customer Data”, May 2, 2014.

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34 TRANSCRIPT TRICKS

§

The Official Record The first-line of protection against abusive behavior is an accurate reliable written transcript of what occurred in the courtroom. Monkeying around with the production of the transcript or preventing it from being made is a way to cover-up and protect a misbehaving judge. A transcript is the official version of court. The court goes to great lengths to assure there are no other versions of what occurs, so an accurate transcript is critical to trusting the document of what happened in the courtroom to preserve a party’s rights for the post-trial review processes. Transcription tricks generally fall into four categories — 1. Avoid making a transcript 2. Excessive price and cost 3. Cleaning the transcript for cover-up — altered and inaccurate recordings 4. Prohibition on secondary and cross-check recordings

1. THE COURT’S FIRST LINE OF DEFENSE AGAINST REVIEW IS TO AVOID MAKING A RECORD. A long-time practicing attorney waited in the Laconia District courtroom for her case to be called and observed the judge ‘going off’ in uncontrollable anger (cursing and at an attorney and his client.) The female transcriptionist had been manually keying the record and put her hands in her lap during the tirade. This was obviously not new to her, and she avoided making the record for several minutes. The lawyer was shocked at the judge’s language and loss of control, and reported it to the judge to the Chief Administrative Judge. JNad called from his cell phone in his car and told her not to file officially. But she did, and was punished when Chief JNad removed her name from the court appointment list statewide.88 The lower court judge’s behavior was a basis for judicial discipline or even more importantly, it was the basis of a client civil rights in that case. By not making the record because her boss went ballistic, the transcriptionist’s omission meant that the litigant involved was precluded from — Moving and proving grounds for a mistrial, Filing and proving a judicial conduct complaint, and Making a record for appeal.

WHY WOULD A COURT EMPLOYEE RISK HER JOB AND HER INTEGRITY TO FALSIFY AN OFFICIAL RECORD? The Wall Street Journal found “‘often’ [judges] have formed friendships with their stenographers and rely on them to keep any intemperate remarks off the record, something electronic or video record can’t do.”89 88

This observing attorney is no patsy, and can give as well as the next guy; so for Attorney Joanne Bamberger to be shocked by the judges tirade suggests to me it was obnoxious and inappropriate.

89

Margaret Jacobs, staff reporter, Wall Street Journal, Stenographers Fight for the Day (Jobs) in Court, April 30, 1999.

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CHAPTER

Many transcriptionist are female and develop feelings of loyalty (increased when judges insist on their service by name.) A kind of moral confusion can develop that leads to “a worshipful attitude toward powerful men” by confusing the force of high authority with virility and a misplaced “sort of courage.”90 The myth surrounding high authority encourages a kind of reverence that condones quiet acts of complacency to fix official records, conceal wrongdoing, and please and protect the judge. It is also a matter of job security in a $40 billion market threatened by new advances in technology that can perform the work more accurately at considerably less expense than a transcriptionist can. Their livelihoods depend on pleasing and protecting a judge. Some recorders or transcribers are actually private contractors paid by the court. In New Hampshire, it appeared the special case positions frequently went to super-attractive flirty blonde women with their own businesses; whose livelihood depended on the judge’s selection of a transcriptionist. Even if employees and not independent contractors, there often is a visible camaraderie between judges and a favorite transcriptionist, especially in the ‘special courts’ of which I became an unwilling and too-frequent patron. Case transcription can be very extended repeat business — sometimes two years or more for each case. In exchange, the women are allowed exclusive rights to produce the transcripts, and “own them” as ‘personal property’ because local rules forbid any other recording device in court.

3

Litigants and witnesses are simply not allowed any independent or corroborating record of what occurred. The only record — good, bad, or altered — is the one by the court transcriptionist. In Texas, it was estimated that court reporter error accounted for 25% of reversed convictions with retrial in death penalty cases in the early 1990s.91 In other courts, even if the recorder is a court employee, she has the same patronage pressure to keep her job — and that means proving loyalty to her boss and making him happy. Another way to avoid making a transcript is to order everyone or some people into chambers. Other times, the judge may cover the mike. It was rumored but unsubstantiated that at the Concord District Court, the judge could push a red button on the judge’s console and suppress the recording.

2. PRICE/COST OF TRANSCRIPTS IS OFTEN PROHIBITIVE FOR OUTSIDERS. Another unfair element of transcript work is the method of computing costs of transcripts at an inflated highly lucrative rate. The cost is especially significant for the losing party, a pro se party, and anyone not able to pass the cost through to a client. Attorneys certainly don’t care, so judge’s don’t care. In fact, there is an incentive to generate the largest most expensive transcript possible, especially if there is a disparity in the wealth of the sides. For appeal, the loser pays. When the loser has been on the wrong end of Insider favors during the case, the run up of transcript time, can make an appeal unaffordable. Judge could control, these costs, but rarely do, and sometimes they act in unnecessary ways to extend the length of trial and cost of both audio and transcripts. Wasteful. Transcript pages are printed with a nominal number of lines, enlarged margins, few words, and expansive spacing. This spacing increases the cost by about one-third. For example, a State House Legislative transcript contains approximately 309 words per page; a court transcript less than 199 words. For comparison, this page contains approximately 592 words. So a typical transcript is roughly about one-third of the words on this page. Courts establish different cost per page — such as $3.75 for appeals to $5.75 per page for expedited orders from a party, with costs to the losing side. Estimate $1,000 a day for a transcript for appeal. Generally you have 10 days or less to pay

90

Alice Kaplan, The Collaborator, The Trial and Execution of Robert Brascillach, The University of Chicago Press (2000).

91

Texas state court Judge John Delaney estimate, supra WSJ at B4.

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for the copy or the appeal is deemed to be waived. Clerks of court insist they can have variable rates for the same page, depending upon what use the ordering party states. An appeal costs double per page. Cost/price calculation errors. I have also found that the clerks of court do not add the costs accurately, and have overcharged me 50 to 100 pages extra in their calculations (which I must pay in advance.) No one ever offers an overcharge refund, even when it represents thousands of dollars. $1 a page — Not! When pages routinely ranged starting from $4 up to $6.60 per page, NH Chief Justice Brock testified to the legislative study committee against HB 1338 (to modernize courts with voice-activated transcription.)92 Brock said “a dollar a page may still be accurate”, and he pronounced “I consider a $1 a page excessive.” He was $3 to $5 a page in error in his testimony.

COPYRIGHT AND COPY ISSUES The courts find that transcripts may not be copied, and each party must buy the transcript or not utilize it. However the Judicial Conference of the United States says, not so. “Transcripts produced from record of proceedings in United States Courts are not protected by copyright, whether the record was produced by a court employee, a contractor, or a transcriber.”93 “They may be used, reproduced and sold by attorneys and the general public without additional compensation to the court reporter, contractor or transcriber.”

Still, all courts ignore that not-copyright-protectable determination as though it didn’t exist.

Bootlegged copies. Except when the judge sometimes gets around this by ordering the losing side to pay for the winning side’s copies, or JNad made a point of ordering a free copy for his specially appointed friend in the case. Judges will look away if an insider shares or uses a bootlegged copy, while allowing a pro se to be demeaned as a thief or cheapskate for not ordering a copy. With electronic review by attaching an email document that erases itself after 30 days, even deponent review of deposition copies for accuracy easily is abused. In one case, only one of eight depositions was electronically emailed and attached, yet the court ignored the non-delivery and review issue, and accepted all deposition transcripts into the record on appeal.

“EXTRA” PERMISSION REQUIRED Some clerks and judges refuse to allow transcripts to be ordered, claiming a party must “request” and “justify” why they are ordering copies of a record or they deny the person trying to order it. The want written permission from all the parties before they will accept a paid request. A dilatory practice? Certainly arbitrary. Some clerks and judges claim they have authority to refuse to let someone order a transcript. Explain yourself. The state gadfly was told by court clerks he had to “state the reason” he wanted a transcript before being allowed to order. He was also told that he had to “notify all the parties in the case” implying everyone

92

Many thanks to William Cushman, a former court-watcher/videographer, Director of the Great Island Research Institute, Department of Obfuscology, who gathered legislative hearing transcripts and provided judge-hearing videos of Committee Hearings, Executive Council Hearings and Impeachment videos to the author. Thanks also to Representative Phyllis Woods for legislative transcripts.

93 “Attorney Says Federal Judge is Punishing Him” New Mexico Business Weekly, May 2, 2000. http://www.bixjournals.com/Albuquerque/ stories/2003/05/05/story4.htm

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has to ‘approve’.94 New Hampshire requires a reason and discretionary permission from the judge to allow only a party or their attorney to order either audio or transcript. No press orders allowed.

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Judges simply assert that they have the authority to control any and all records created at court — and when there is some potential to discredit or discipline a judge, the judges will refused to approve a transcript request.95 These are government public records, and no other state has the kind of restrictions New Hampshire has, preventing public and others from ordering court transcripts.96 There are numerous account of expunging transcripts, and like President Nixon’s secretary Rose Wood, some civil servants, acting under false feelings of loyalty, financial allegiance, or blatant self-interest, can and do alter, omit and fail to transcribe critical elements of the record.

3

The technology of multiple-track recording further permits a loyal transcriptionist to fail to include, or deliberately omit sounds, statements and other critical parts of a transcript if so motivated. Whether by error, laziness, sloppiness, or wanting to protect her boss, the one and only transcript of proceedings is entirely controlled by the court and may not be reliable, complete, or accurate. Another trick of judges is to drag-out a proceeding unnecessarily — days and weeks even. By putting no controls on one party’s presentation, the cost of the written record for appeal becomes prohibitively expensive because the losing party pays. For example, The Supreme Court remanded for new trial before the same biased judge. The re-hearing was scheduled for 3 but went 9 days. The outcome was about same, but slightly worse. (The judge had increased her trial hostility against me from the first trial where she defaulted me.) The cost of the second trial transcript was $17,000 — making the threshold cost of another appeal prohibitive. There was also the cost of copying the entire court record — also prohibitive. A private recording or court-ordered videotape (the judge ordered a video of the first trial), fact/rulings could have been determined without transcript expense.

3. TRANSCRIPT CLEANING — ALTERED AND INACCURATE RECORDING EXAMPLE — COURT ERASES THE RECORD In the Rockingham Superior Court case97 where Mike R. (the pro-se husband who we will officially meet two chapters from now) forgot to stand up when he answered the judge and he was hammered verbally. He ordered a trial transcript for his appeal. That official transcript simply omitted critical trial testimony about — a. The judge’s verbal hammering; b. The valuation and ownership of his business; c. Impeachment testimony about his payment of bills; d. Testimony confirming his proof and production of discovery. Mike had been effectively ‘defaulted’ overall in the case by the exercise of judicial discretion (it was a winner-take-all case that avoided the statutory equitable division of property in divorce) based on judicial ‘findings’ that Mike was uncooperative. He later researched, regrouped, and alleged the opposing counsel was known in the legal community as 94

AP/Boston Globe, (Theodore Kamasinski) Legal Reform Advocate Sues N.H. Courts for Case Index, Transcripts, April 28, 1998.

95

Case examples of these clerk/transcriptionist tricks are detailed later in practical application sections of this book.

96

Jane Kirtley, Reporters Committee for Freedom of the Press, 4/28/98, supra.

97

Mike R., New Hampshire Superior Court, Brentwood Family Division, Docket No. 2000-M-0212.

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that judge’s “PET” and the attorney had a known reputation with five lawyers in the Rockingham District Court for never losing with this particular marital master. He coined this phrase:

P.E.T. stands for Preferred Exclusive Treatment

Mike ordered the trial audio and found two critically timed three and six-minute gaps98 — where the machine continued to run but the tape was blank — deleting testimony that disproved the master’s findings.

EXAMPLE — OPPOSING COUNSEL ALTERED THE COURT TRANSCRIPT FOR APPEAL — HARMLESS ERROR Tommy D. was serving fourteen years in prison for crimes related to an incident of alleged domestic violence. He discovered three months after his incarceration that the trial transcript submitted on appeal by the prosecuting attorney was missing exculpatory testimony. Three exculpatory sentences he vividly recalled saying at trial were missing in the transcript. It took months for him to obtain copies of the trial tape recording used for the transcript. From that audio, he was able use it to successfully demonstrate that opposing counsel altered the official transcript by deleting important testimony, and adjusting the page margins on two consecutive pages, before submitting the altered transcript as part of her appeal record. The court ignored the prisoner complaint and called the record alteration ‘harmless error’.99 Other kinds of transcript manipulations include a six month wait; free copies for friends of the judge, run-up of costs — and audio tapes that don’t match the official written transcripts.

4. AUDIO RECORDING PROHIBITIONS Court rules prohibit any recording devices in court, to prevent question about discrepancies with the “authentic” record. So there is no easy way to disprove shenanigans in the transcripts. I always recommend taking a smart person to court to observe and take detailed notes. My mother knew shorthand. What a priceless lost art. You also may request audio copies of any hearing. The price ranges from $25 or more in New Hampshire, to $4 in New Mexico. Other capricious court limitations: NH only allows parties or their attorneys to order audio; in NM anyone including the press may order. NH the judge has to pre-approve all requests; NM, people just fill out and pay in advance. The range of cooperation and approval varies widely. Some courts don’t allow or make audio records. Or you may need to request it days in advance. Be warned, the court is not consumer-oriented, and doesn’t care if you can actually play the court recordings. For example this is one clerk’s note —

“Please note: The standard court recording speed is 2.4, whereas we understand the speed for play on the average noncommercial lower speed tape player is 4.8.”

98

Id., Tape 1, Side B, 25 minute, and Tape 2, side B, 24 minutes, each blank had referred to critical evidence, direct testimony and impeachment of opposing testimony. Whether or not Mike should have won, the official trial record was so flawed by erasures, it was unreliable at best, and suspicious at worst.

99

Petition of Thomas D., New Hampshire Supreme Court, original docket No. 97-547; See court record of 17 page letter Theodore Kamasinski to the Clerk of Court Zibel, dated April 4, 1997. See also District Court case, State v. Thomas D., Merrimack County Franklin District Court, No. 95-CR-01709-01714.

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and this one —

“You can download a listening program for pc; there is no listening program for Mac.”

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Even before widespread cell phone use, courts prohibited any alternate recording of what occurred in the courtroom. I used to recommend to pro se parties they never go alone to court, and to have someone take extensive notes, “with quotations marks around the exact language” of what occurs, because the court record is so often unreliable on important rulings and facts.

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My mother proved instrumental when a judge months after issuing an order, mis-remembered the order backwards. Good ol’ Mom, with her beautifully handwritten notes, helped me order the transcript that demonstrated the judge at trial had a flawed recollection of a material trial issue — namely that the State had been ordered produce a material exculpatory defense witness for trial — Yavapai Sheriff’s Deputy Ramon Rivera. Judges are human, and they forget things. They just don’t acknowledge it. And of course, earlier orders can be inconvenient to a prosecutorial outcome. So in the above case, the judge flared in anger, ordered no more transcripts could be ordered, and just issued a new order reversing her earlier orders made nine months before. Detrimental Reliance? No one cared. Her earlier order proved highly inconvenient to the judge, so on the last day of trial, she reversed it. For criminal defendants who rely on Constitutional rights and fair judging for their defense, trial can be an enormous shock to the human system. Now, courts generally allow attorneys to have cell phones, but not parties or the public. With tiny plastic MP3s that look like key-fobs, this may be a moot point, but judges have established rules that avoid challenge by a party on whether the court operates reliably (including whether official transcripts have been tampered and altered.) Judges are human, and sometimes they forget things. But they don’t acknowledge it.

35 CLOSING PUBLIC COURTROOMS & HIDING THE HEARING

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One of the goals of this book is to empower ordinary people to rely on common sense and their own moral judgment about what are acceptable and standardized practices in court functioning. (An what behavior doesn’t meet the standard.) It may involve questioning authority. Courtrooms are public places by constitutional authority — which is a higher authority than any judge. Often in courthouses, people assume incorrectly that because official people in uniform say something, it must be legal and proper. Decent people are taught that good citizens comply with the law, so if someone in authority tells them that they are breaking the law, they will stop and obey. Closing a courtroom is usually an act carried out by a court bailiff or security guard and abuse comes in two general forms: 1. Expulsion of particular individuals based in a particular case where the judge wants no supporters for the outsider/ party present in the courtroom, or 2. General eviction of the public at large for all cases during certain stages of trial which are suppose to be open. The motivation for why a judge orders a courtroom closed can often be determined whether it is a general or specific expulsion.

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I saw the first type occur when bailiffs stood at the door of the courtroom and asked visitors attempting to enter what is your business with the court? He physically blocked the entrance of one elderly couple who did not know anyone and could not name any case they were there to see. He roughly told them they had no business there. And they turned around and left. I went after them and found out that they came to court as amusement — like going to the movies. I assured them they could enter that courtroom, where my client was resisting a closed chambers meeting. I assured them as an attorney that they could stay throughout the day, as a matter of right and that my client and I were happy to have them there. My client wanted the press at her hearing that day, and I thought the extra eyes and ears might be helpful to her cause. The client feared she would not be treated fairly and might be arrested. We were happy there were witnesses and spectators as judges sometimes exercise more restraint and think twice when there are strangers in court. In this case, the judge caught wind that reporters (plus the senior citizen couple) were present in the courthouse, and he ordered the parties and lawyers into his chambers. My client declined, so I respectfully informed the clerk that my client wanted to have the hearing conducted in open court with a record. That the judge was displeased is a gross understatement. The judge complied but took a very few minutes to threatened to incarcerate my client. Clearly he was pissed that the hearing would not go down the way he expected, and that the press was present. Having rights and being able to exercise them are two different things in court. Judges don’t care about your rights or about the Constitution. That’s not how the legal system operates, (often the Constitution doesn’t count in court.) Winning a right that the judge does not want to honor can translate into losing with increased levels of judge hostility and intimidation. There is no way to effectively win any argument with a judge like this. However, notwithstanding the intimidation my client experienced, it is still appropriate to conduct trials in open courtrooms. Judges behave differently when spectators are present — reporters in particular.

OTHER EXAMPLES OF WAYS COURTS CLOSE PUBLIC COURTROOMS

The court bailiff will approach people in the courtroom and demand identification; He writes down their names, or He requires them to step outside and produce a photo id. In general, when done by a uniformed guard, people are intimidated. These are techniques to try to get spectators to leave the courtroom before a certain case is called.

CLOSING A COURTROOM — TECHNIQUE TWO A second type of improper closing — equally illegal — is the blanket exclusion of any spectator from certain aspects of trial, such as jury selection. In courtrooms from coast to coast, federal and local bailiffs rope off all the seats or stand at the courtroom doors turning away spectators during jury selection (or other public parts of trial). The typical excuse is there is not be enough room to accommodate both the jury pool and spectators. One judge announced there was not enough room in the courtroom for public to watch jury selection, and ordered all defendant’s family members and friends to be turned away. If the judge makes no accommodation for any public attendance — (not withstanding a defendant’s fundamental right to a public trial) — in all phases, not just when the court expects spectators are convenient — the judge has made a major fundamental error. Reversible error.

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HIDING THE HEARING Hiding the hearing is a more juvenile tactic to avoid an audience. These are not super-sophisticated tricks. The court staff is instructed to keep public enemies out of the courtroom. This is how regular staff comply — On-site information about the hearing is deleted or not included in the regular court list. The case is not on any docket list, the lobby TV monitor, or the bulletin board.

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The hearing is moved at the last moment — from the assigned courtroom to another inconvenient or inaccessible room, with no notice except to the attorneys and parties involved. Sometimes the bailiffs just take them in hand and lead them to a new room quietly without telling them why.

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All of the court staff claim to not know where the hearing is being held. Bailiff may be instructed to prevent people from attending; court bailiffs will make up their own techniques. The location will be switched at the last moment, so if it is listed on the lobby monitor, that room may empty. Several times, I experienced hearings where the last-minute shuffle was to a remote inconspicuous room on a different floor or building; once it was to a makeshift temporary courtroom behind a storage room. I had previously refused special acts designed to close my case, raised objections, and refused an anonymous Doe-name. When it is a high profile case involving a court insider or high-ranking bar member, a politician or another judge, anticipate this trick and meet your court-watchers outside in the parking lot where cell phones will work. Then enter the building together. If reporters arrive to attend the hearing and ask where to go for the hearing, they are told the hearing was canceled or postponed. If you have invited a reporter, get a cell number and also plan to find the reporter in the lobby. Remember, reporter cell phones are not allowed in the courthouse. Example: At federal court, bailiffs announced a new local rule that prevented anyone from viewing the jury selection. Theo, the gadfly challenged the action. He argued that hundreds of incarcerated prisoner each deserved a new trial because the rule had been applied for an unknown time. Theo didn’t file in the local court where the rule was being applied, but in a higher court out of state. The rule was changed, but only one prisoner was granted a re-hearing.100 Once you become aware to look for these tactics, friends or court watchers or supporters can be stationed at the building entrance to try to tell people where the new hearing room is located. Gag Orders. Judges who want private proceedings but discover reporters or witnesses have somehow managed to get access to the hearing room, will then initiate the issuance of gag orders on everyone in the room at the close of hearing — warning all not to discuss the case and sealing all the court files, exhibits, even the out-of-court discovery.101 In such cases, the press can be your new best friend — and sometimes the Associated Press102 has commenced expensive litigation to intervene to unseal the records and files. In several of the judge divorce cases, the First Amendment (or Freedom of Information Act suits) are the only means of forcing the case open, at considerable time and expense. It takes a concerted effort to involve a newspaper or the wire service to spend tens of thousands of dollars (and often 100 Theodore Kamasinski, supra. 101 Douglas v. Douglas, different docket numbers in both Merrimack County and Rockingham County Superior Courts 102 Miami Daily Business Review, Newsweek, and the Keene Sentinel have also been know to intervene.

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much more) to open your case to public scrutiny. So, most often, judges are able to seal or close off public access, then manipulate to keep out the most number of spectators or witnesses when the case is a special favor case of cronyism or targeting.

36 CATTLE CALLS — OVER SCHEDULING FOR JUDICIAL PRODUCTIVITY

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One of the ways that courts ‘prove’ to the public that they function well is to demonstrate a rapid turnover of cases per judge capita. Fewer judges — more cases. It’s a ratio of numbers game. Cattle calls help judges keep up high numbers. This data gets collected by administrators to justify what they consider apparently efficient case handling or a need for more staff or more building construction or whatever data the court’s political agenda requires.

IT IS A PRODUCTIVITY STATISTIC — WITHOUT RELEVANCE TO — Quality of judging

A just product or result Fairness Measurement of the cost-benefits to parties waiting at court in order that the judge can appear “efficient.”103 Those factors are not quantified. What courts evaluate and what they leave out of those annual statistical reporting for state and national level is telling. This is not a consumer-oriented or cost-efficient industry. And yet it could be. It lacks motivation, and as we’ll see, the incentive is to drag out a case indefinitely — even adding years of delay that increase attorney billing. Cattle calls are the process where the clerk of court mails out notices for many parties to appear at the courthouse at a specific time for hearing. When many people are noticed to come at the same time and place, far more people show up than the judge can hear easily. But clerks know that some will no-show, some will settle, others may be late; and everyone else can be rescheduled for another day. So they stack lots of bodies in the gallery to wait. This way, the judge always has ‘customers’ waiting. In some courts, the time spent waiting can be significant. When people pay attorneys to wait cattle in calls, those on the inside track sometimes check in, then return to their offices but get one of the court clerks to phone a five-minute warning, so he can avoid waste and double bill the time. Phone calls are perks court clerks can arrange. This service is definitely NOT available to all attorneys, or to pro se parties.

In my personal experience, courthouse waits may be hours, half-days, full-days or multiple days.

Cattle calls appear wasteful on the surface, but they serve an institutional function of rewarding attorneys, while fleecing consumers. The disparity between the two classes is a one-way economic system and institutional ‘good’ practices that insures full-employment for lawyers. 103 The National Center for State Court is supposed to educate judges. It collects and releases state court caseload statistical comparisons, does surveys and generally promotes the political agenda of activist judges at the state level; the federal level is similarly helped by the Federal Court Center. NCSC helps judges to partner with prosecutors and other in-box activist roles.

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An out-of-pocket paying client pays his lawyer to stand around waiting for the case to be heard. The attorney checks in with the clerk and waits. Bottom line: the meter is running. If a party is a lawyer, he pays no out-of-pocket legal fees for waiting. And he may even work on and bill another client while waiting for his own case to be called. His opponent is likely paying a lawyer.

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Bottom line: no out-of-pocket cost.

3

When one side pays hourly attorney fees and the other side does not, it encourages running the clock, increases cost of litigation; disfavors the outsider and rewards the insiders. Bottom line: rich get richer; poor get poorer. For cases with state-paid attorneys but involving at least one privately paid attorney (by a party), the wait has no effect on the state’s case, but financially hurts the non-insider. Bottom line: financially, the deck is stacked for the state. Pro se people without an attorney will be cattle called with the rest of the cases, but almost always pro se are the last cases called to hearing — (and listed on the dockets last). This is because court culture is biased against people who come to court without an attorney. It is assumed pro se will be slow, won’t know what they are doing, might be difficult to handle, and certainly a pro se’s time isn’t as valuable as attorney time. Therefore pro se get scheduled last on the list so the courtroom will be less crowded and cleared of the most important people. Bottom line: Pro se count less and will lose the most time at cattle calls. One mental exercise I did when standing around the Nashua District Court was to calculate the wasted resource-cost of a lobby full of attorneys waiting to be cattle called. It was a calculation of wasted resources planned to make judges look productive for internal statistics and court performance reports. To do this exercise yourself and calculate how many legal resources are wasted waiting for judges, look around the hall and courtrooms (or check the docket listing), then multiply attorney names by their respective wait time and multiply by an hourly billing rate. Even a small courtroom with only four or five cases waiting (there are frequently a dozen times that number waiting), the calculation easily can be $20,000 an hour wasted by attorneys (but billed). This means either the clients or the state are paying for attorneys to wait around at the courthouse. In one case, the total attorney wait time billed for one hearing came to $21,000. One case in my career was outstanding for being poorly managed. It involved state social services and the Nashua District Court, I was the only privately paid attorney with seven court-appointed-state-paid attorneys. The cumulative hourly waiting time was $600 an hour.104 Together with our clients, we waited over 35 hours over 4 days for one hearing to be called. I also had over 8 hours of travel time — because three days in a row the judge postponed calling the hearing, but only after everyone arrived at the appointed time at the courthouse. The total lost time cost-of-waiting in the Nashua District Court was $21,000 for one hearing in one case.

104 Calculate 7 attorneys @ $60 state hourly rate, + my $130 private attorney hourly rate; this was in the late ’90s — contemporaneous billing rates would double the total or more.

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Remember, this calculation does not include the time actually in the hearing. That case dragged on years, and there were countless hearings altogether. It is no wonder legal services are prohibitively expensive for private clients. Appointed attorneys are state-paid, so only the outsider with a private lawyer gets dorked. All lawyers get paid anyway, regardless of how unbelievably incompetent and inefficient a judge’s administrative practices are. While conscientious lawyers may work on the case or prep the client during this hallway waiting time, it isn’t required. Some attorneys bring other client matter to work on, and double bill the court waiting time. I suspect attorneys rarely pro rate either the waiting time (between the client’s case and the other cases work on while waiting) or the travel time to court.

UNDER SCHEDULING AND EXCESS COURTS AND FEES On the other hand, here’s the alternate side argument — Time magazine named the “congested” state of “clogged state courts” a national problem as far back as 1966, and reported the length of time to get to jury trial in Boston was then twenty-one years, in Chicago, five years; with a national average of twenty-one months.105

I BELIEVE COURTS ARE UNNECESSARILY ‘CLOGGED’ FOR TWO HIDDEN REASONS:

1. There is institutional pressure for judges to extend litigation indefinitely to increase financial payments/fees for many institutional players; and 2. The quality of justice is so poor that some cases stimulate years of appeals, rehearing, and consumer attempts to correct or remedy a poor and unjust outcome.

This section however deals with the administrative aspects of scheduling cases that ignore any sensible cost-benefit analysis of the functioning of the American court system. As a class, judges lack sensibility and financial practicality about costs of case management. There is no oversight of careless or arrogant scheduling demands. Judges generally are free to disregard any excessive cost, difficulty or unnecessary expenditures they chose to create in a case. They order people and attorneys to appear at court, make them wait around hours, and then cancel or reschedule hearings with impunity. Courts are not marketing conscious and have no compulsion about providing any customer service or competitive treatment.106 Examples abound of local judges and court administrators whose scheduling is inefficient, unproductive, or downright abusive to parties in the courtroom. The people who gain most from bad scheduling are often state attorneys (salaried) and private lawyers who bill clients hourly for extended waiting time that accrues from these poor court scheduling practices, delays, and continuances. There is no cost-benefit or cost-efficiency factor at play here. Client pay tens of thousands for waiting — due to inefficiently in scheduling. It’s a great job-perk-program for lawyers. That isn’t to say that court administrators don’t mouth opposite concepts to legislators when they seek to restructure and add more courts, buildings, and judges paid by state funds. But the facts underlying administrative practices of judges are not carried out routinely in actual court practices. The court system is in no way concerned about providing user-friendly or efficient customer service or user

105 Time for jury trial in personal injury suits, “Court Computerized Dockets” Time, July 29, 1966. 106 There is little but lip service to alternative mediation and other low-cost problem solving.

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efficiency. The thrust of administrative rules and practices is to engage the greatest number of attorneys for the longest periods of time. And because people are dissuaded from effectively utilizing the courts and appeal processes without hiring lawyers, the present models perpetuate increased income and power to the legal system. Appeals by design/practice eliminate most ordinary people/non-lawyers from utilizing the process. So the chances of having a lower court judge reviewed on appeal is institutionally weighted by cost, process, and procedure to prevent ordinary people from carrying through in all but the most extraordinary or dedicated of circumstances.107

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DELAY CAN INCREASE ATTORNEY YIELD BY 50%

3

However, the propensity of judges to be arbitrary and selfish in scheduling almost always has a propensity to insure the legal profession earns disproportionately higher fees for the overall services provided. If each hearing, which would ordinarily consume $1,000.00 of legal time in research, prep and arguing, can be stretched to $1,500.00 through additional court waiting time, an attorney’s effective yield is increased 50% on each event. This is a modest example, and can run far higher. Court consumers are fodder — financial fodder without recourse for ineffective case handling by judges and lawyers. The system denies poor and average people affordable court access, except in criminal matters, where prosecutors grind through plea bargains, coercing even those that want a trial but cannot afford it. Courts are the providence of the rich or insiders with connections to trade, barter, or profit from courtroom inefficiencies. One of my many personal examples of a judge who blatantly disregarded the client’s increased costs of litigation is Judge Peter Smith, who waited until the attorneys and parties were standing in front of him at court to postpone a hearing. He did this three days in a row. Because the motion hearing involved two attorneys traveling from Concord and Nashua — three hours drive (each way) to the remote Canadian border-town courthouse at Coos County, each rescheduled hearing involved extensive attorney travel time. I took a motel room and stayed overnight both nights. Day one: Judge Smith thought he had the flu and rescheduled after the case was called. Day two: The next day, Judge Smith called the case but almost immediately recessed for an impending ice storm. Day three: Judge Smith held a fifteen-minute hearing, abruptly lost his temper, walked off the bench, in effect closing the hearing. He never returned.108 The judge’s treatment was beginning to make a pattern — not only of arrogance and temper, but overall disrespect. The judge was afraid and as a result — became belligerent and rude even. As to the client’s cost/benefit — (even without hotel, travel, and meal costs of waiting three days) Judge Smith’s behavior warranted special analysis for signs of poorquality behavior. It is remarkable that Americans, with a strong sense of “value received” in other areas of social performance, fail to demand or take active complaint of this pattern of financial abuse by judges. My guess is the public doesn’t know how to demand value for their legal dollars spent — because the air of extreme authority the institution works so hard to project. The public gets intimidated, one case at a time. In this case, my client was not intimidated, but justifiably angry. The judge had a reputation for disrespecting not only parties, but attorneys in court.

107 The review process labors under the same weighed process of generating legal fees and avoiding correction of judicial tricks. It’s a self-perpetuating shake down of the public. 108 Rancloes v. Rancloes, Coos County Superior Court, Docket No. 99-M-257.

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EFFECT ON THE ECONOMY Under any rate of return calculation or definition of value in other social interactions, this monopolistic consumer abuse would incite a public outcry — and competition. Any other American business including government service, likely would result in some challenge or demand for accountability over administrative behavior which routinely causes such unnecessary cost and crass waste. Even Ma Bell’s monopoly eventually give way. And (like the old post office system before private mail delivery companies began providing quick national overnight delivery) service is often poor quality and disrespectful. Inverse Cost/Benefit ratio. But in the legal system — insiders financially benefit inversely to the ineffectiveness of the process. And judges get and stay rude and angry to stonewall challenges and dissention. Another way to view it — greater judicial inefficiency leads to richer lawyers; greater judicial inefficiency means clients pay correspondingly more. A fond courtroom saying is if you can’t stand the heat, get out of the kitchen. This is insider talk for pay or lose. The joke is consumers often do both. An inefficient legal system is inversely proportional to gross revenues received by the industry. This money is taken out of the general economy, produces no product or job creation, and almost always represents a consumer loss — even if the consumer wins.

System inefficiency rating x attorney $/rate = consumer cost/loss

Judges are not accountable (in any concrete or effective way) for how much a case costs. There is no inherent incentive for a judge to keep costs down for clients or relevant to the dispute. Instead, the institutional economic incentive is to even greater inefficiency, institute more delay, drag out resolution, while encouraging excessive costs charged to the consumer. The Coos County judge, when challenged on the record for the excessive delay and continuances, wrote an order making erroneous findings that the attorneys and the parties were responsible for two years of delay and procrastination in completing this case. He used his ability to have the last word to twist and exclude pertinent facts in order to direct away any potential criticism of his judicial handling — to blame someone else. He made an official record, which shifted all blame away from him and the court. Judges always get the last word. He retired shortly thereafter.109

DEVELOPING AN ATTITUDE OF PUBLIC SERVICE? The IRS, the U.S. Post Office and other bureaucratic organizations are light years ahead of the court system, in public service attitude. Because ‘customer’ participation is required under penalty of law in court, there is no incentive nor recourse for poor service and case handling. The mandatory nature of court makes consumers sitting ducks for legal fees and a total expenditure not worth the investment. If the case is inefficiently handled, (or the judge compromised) the economic impact can be untold. Overpay, with poor service and bad attitude. That’s consistent with the ABA consumer polling results reported in Chapter One.

109 Rancloes Id.

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37 PRO SE TREATMENT

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The latent bias against people representing themselves (or helping others) in court is widespread and discriminatory. Judges systematically disfavor those who do not use an attorney.

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Courts have become more complex and the law impossibly stratified. It’s not as difficult for lay people to understand the law, as it is tedious to ascertain the procedures required. I sympathize because rarely have I been able to afford an attorney in court, and my position has always been an underdog. I’ve had two quasi-volunteer attorneys and two gadflies help me. I appreciate their help greatly as it can be terrifying to be alone in a hostile courtroom where the judge favors the Insiders. For me, it’s a Biblical event. People stand alone in court because they lack resources to hire an attorney, and because they can. But the bias and hostility against pro se and alternative court helpers runs far deeper. Informal rules limiting pro se filings. Local courts at all levels — federal, state, and local courts can establish informal rules of court. Courts use this power to make rules to limit filings by pro se classes of people. Even without ad hoc rules, just observing a courtroom demonstrates the closed society bias that disadvantages outsiders. The bias favors licensed attorneys — this is a closed shop. The need to have everyone who appears in court be represented by a bar member goes way beyond people who don’t know or understand the rules.

People who represent themselves thwart the smooth operation of an insider system. The smarter they are, the larger the potential for exposure of special operations.

Pro se may be a one—time court user. They cannot be controlled by insider incentives such as the prospect of earning additional or extended fees, nor can they be threatened with in-house ethics complaints. They have no incentive to ignore a judge’s bad behavior, or to remain silent about atypical treatment and operations. Pro se represent a class of people that need to be controlled, yet at the same time, require additional handling to function in the exaggerated world of court formality and practice. They are an anathema to the system,110 and yet dang it, courts exist to handle cases for everyone, not just those in the club. Judges and clerks make informal rules for pro se, sometimes ad hoc (on-the-fly) that discourage or prohibit ordinary people from receiving the same treatment lawyers do. Routinely, they get verbally harassed to seem inferior or ignorant (both by lawyers and by judges who engage or tolerate it.) In addition to the complexity of rules and procedures (altered and modified daily for lawyers), there is also the judge’s harassment, where every judge reminds every pro se of the adage about only a fool represents herself.” That included me — who was not only an experienced litigator, but during the whole debacle could not find nor (largely) could not afford an attorney.111 The adage has become conventional club wisdom, that falls into the Solomon class of advice — it avoids the disparity in wealth, overlooks education, suggests representing oneself is both (a) emotionally destructive and (b) a character flaw, while doing nothing to balance the platform. The biased manipulation of processes — happens at both the hands of the judge and ‘other’ lawyers, so that no matter what the lawyers do or don’t do, any pro se is made to feel he is inferior or acting wrongly. It’s a form of screwing with your mind, but more importantly, it is discriminatory and institutional coercion. Pro se people who go to court without an attorney are not the ordinary user for whom this court system is established. Pro se are thought to slow things down, they don’t understand the court culture, and they don’t play the game. Increasingly courts are patently hostile to those who enter without an attorney. 110 Anathema or more generally understood, curse, loathing, abomination, denunciation or abhorrence. 111 I employed several law firms, who doubled up the number of attorneys to keep up with Chuck’s voluminous filings, at no cost to him with new kidteam at my old office. The bills were prohibitive even for only a few weeks law work (each). It’s detailed later.

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EXAMPLE ONE. FEDERAL COURT PRE-APPROVAL For years, the First Circuit Federal Court followed an informal self-created rule, which required fee-paying people without a lawyer to submit their lawsuits to the clerk’s office, which refused to stamp them into the docket until after the paperwork had been reviewed first by a magistrate to see if it correctly invoked subject-matter jurisdiction.112 Then the clerk was to issue summons immediately. Ostensibly, the magistrate would read the pleading to see if the work was legally sufficient to withstand being dismissed. At first, this pre-approval filing process seemed like a courtesy to people who did not have lawyers. Counter clerks suggested as much. It would save pro se’s the problems of having to amend or redraft their complaints. And it takes about one to five minutes of magistrate time. “Let me help you,” said the spider to the fly.

But pro se cases always had to wait an extra waiting period, sometimes months for this explicit ‘permission’ while they waited to file their case(s). On average, the wait was four months. And in the meantime, the pro se was unable to obtain a signed subpoena.113 One magistrate routinely took 30 to 90 days or more to make this review.114 Meanwhile, attorneys filed and immediately got as many signed subpoena/summons as they wanted. The experience of going to the clerk’s window and handing over a filing/fee and having the clerk put it down and walk away, (or otherwise makes some excuse and hands it back) is a frustrating one. Everyday, clerks refuse to accept, file or date stamp. Arguing with them only results the in the clerk calling security, and the would-be filer gets escorted out the building with stern warnings about being a troublemaker and threats of jail. It happens everyday all over the country in state and federal courts.115 So, okay, if you are a not an attorney, maybe you mail or fax it in?116 Same result. Electronic? Pro se may not be permitted to electronically file — it’s a state-by-state court insider rule that only insiders get the benefit of the new age. On the surface, this type of federal and state court special treatment is of the same type of false solicitude as the feigned offers to protect a party’s privacy by sealing all their records. It is deprives a party of a right, and the deprivation and the process are not justified. It is a category of judicial bias and unsolicited favoritism that acts against the person purported to be ‘helped’, while at the same time procuring ‘special treatment’ for the State or insider that otherwise could not be justified at law.” In the First Circuit, the judges claimed there were too many faulty pleadings being filed in court by pro se, which wasted time when they were later dismissed or needed amending. The economy of the court was claimed to be an adequate basis for making a special informal, but hard-fast rule against pro se litigants as a class.

SELECTIVE DISCRIMINATION Law does not allow clerks to refuse to docket cases for an entire category of party, or to make assumptions that an entire class of people are deficient in their filings. Initially the clerks argued that the delay would be ‘slight’ — although petitions 112 The flaw in this argument is the court applied a local rule in conflict with itself, which required the application of Rule 12(b)(1) of the Federal Rules of Civil Procedure for dismissal. This informal clerk of court process is not covered under 12(b)(1). 113 There is no provision in federal rules allowing clerks to restrict pro se subpoenas, especially based on a clerk of court general presumption that pro se filings are deficient. 114 For an example, see case of Katz filed in the U.S. First Circuit on October 17, 2001; summons were never issued and the case was dismissed four months later on February 8, 2002 after the Magistrate recommended failure to state a claim, January 17, 2002. 115 The New Hampshire Rubens case/rehearing had different versions of these clerk non-cooperation tactics. My brother experienced it in Arizona. I’ve experienced versions of it in New Mexico. 116 See later chapters on mail abuses and prisoner filing by mail — abuses judges almost never notice.

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took 44 days or more before being reviewed. But if attorneys do not need to have their briefs reviewed and analyzed before they file them in court, this ‘help’ toward non-attorneys is discriminatory.

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Initially, the federal magistrate ‘review’ for sufficiency was a delay of a day or two up to a week. Only after it appeared that one magistrate was taking more that a month, and the well-known gadfly complained — repeatedly — up and down the federal court system about the abusive rule. The First Circuit Federal District Court indicated it would speed up the process to avoid missing statutes of limitations or other fatal results from the informal process, but it refused to acknowledge that it was not allowed to discriminate in favor of attorneys in case handling. By jumping over local administrators and complaining to supervisory court administrators in Washington, D.C. the court was required to give up the local pro se review practice.117

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HIGH VOLUME PRO SE FILERS. There are similar sounding restrictions in certain cases involving highly litigious people or those who appear to be harassing others by their multiple filings — cases which established limits on the number of case filings certain people may make — or barring them from court filings altogether. These sometimes focus on a prisoner who will generate multiple lawsuits as an avocation. It is also a burning focus of those who are innocent but wrongly imprisoned without recourse, for much or all of their lives. These issues are similar, but not the same principle for several reasons: this is a blanket restriction on all people within a class — not specific individuals. This trick limits everyone who doesn’t have an attorney from filing papers necessary to begin even one lawsuit. It discriminates against people without attorneys. This is a further example of another trick of using an established legal concept out-of-place, so it sounds familiar and legal, but often is misapplied and taken out-of-context. In this particular case, the legal gadfly118 finally created enough commotion at the federal level (he was ignored, placated, and whitewashed by both judges and clerks for months at the local federal level in both New Hampshire and Boston) that he found higher placed officials in Washington who insisted the local boys stop this practice. After years of federal clerks and judges harassing pro se litigants in filing, the practice disappeared overnight.119

PRO SE REQUIREMENTS FOR FILING — AND REJECTION My ex bragged at cocktail parties that he wrote the rules of court in the 1980s when he was the junior judge on the state Supreme Court.120 These included fines for everything filed “wrong.” $50 fine for failing to put scotch tape over the back of staples. $50 fine for using the wrong color paper for the appeal brief cover. $50 each fines for the wrong font size, the wrong font-type, the wrong margin size, and the wrong footnote size. Wrong number of copies? Refused. Tedious overpriced stuff. 117 Theodore Kamasinski v. Hon. P. Barbadoro, Diclerico, McAuliff, Muirhead, Starr, U.S. District Court for N.H. Docket C2-285-B (2002). 118 Theodore Kamasinski is New Hampshire’s legal gadfly. See Jeffrey Toobin, ‘The Judge-Hater’, the New Yorker, June 12, 2000. 119 But, what begins as an opening skirmish with a clerk of court can escalate into war with a bureaucracy. Best you be informed before starting across a field of land mines. 120 Most rules of court are relatively infantile — they have not been around hundreds of years, and are capriciously drafted to satisfy petty power precepts. Judges consider rules to be their exclusive purview, but constitutionally, the legislature has co-equal or greater powers to do initiate court rules. Judges fight turf-wars with legislators, and seem to be winning. Judges apparently are insistent and intimidating in political power grabs with state legislators.

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The difference between being a lawyer and not isn’t just staff however, it is the disturbing lack of respect and tolerance in court culture that is a result of a elite movement to close off reasonable access to the courts to outsiders. Courts now have an almost zero tolerance for outsiders who don’t employ lawyers. It’s a highly rejecting system for outsiders. Institutional tactics, including these clerk of court tactics, are used to wear down or blockade filings by outsiders.

SPECIAL SURCHARGE FOR OPENING SEALED RECORDS FILINGS The Gadfly, Theodore sued so many times to open sealed divorce and other insider records, that former chief justice of the superior court Judge Walter Murphy issued a memo making a special Gadfly fee — an order that Theo had to pay $125 filing fee for each case.121 The courts also put on a $20 surcharge ($145) for the press to file to open records that were presumptively public records anyway. After four years, the court quietly dropped the gadfly-filing fee, and Theo said “I only filed a half-dozen or so, and I never lost a one. I’d like my money back.”

RANKISM For high-ranking insiders, there is an inverse institutional disregard for the same handling issues. They abuse, ignore, and twist the rules and procedures that apply to everyone else. And in their alternate court-universe, that’s considered admirable or at least tolerable. (Right up until it’s not.) Middle and low ranking attorneys may find they cannot get courtesy phone calls from court staff or files pulled. Clerk know the minutia of filing, and respond to requests for information according to rank. I have been on different sides of clerk favoritism, and see an active hostility that permits staff at most courthouses to disrespect outsiders by grinding on details, switching rules and requirements, and disrupting ordinary counter services. It is more than elevating procedure over reason — but seems to be a blind and misplaced form of loyalty to institutional elitism reflected top/down.

SWITCHING RULES Clerks are good at changing or making up new rules depending on who the customer is: the written court rule or standardized court practice gets avoided by some informal new process, especially if the party is a pro se. What last week was free (notary services), this week has a cost, and next week has a limit (only for pending court cases). I discovered the local court has a stream of “new” ad hoc rules based on a change in personnel — limited notary services; charging for notary seals; limiting copying; limiting fax pages received; limited docket-research; and instituting a revolving-door of new charges and fees, all announced orally only — at the last minute, in a curt and churlish voice — at the counter.

REFUSING TO ACCEPT A PLEADING FOR FILING Although some lay people may recognize that they are entitled to file cases the same manner as any attorney, when their efforts are frustrated because a counter clerk refuses to accept a document, or refuses to docket stamp a filing and return a stamped copy to them, or the clerk walks away from the counter and doesn’t return, then lay people have no real recourse.122

121 Katherine Webster, Associated Press Writer, No fee required to try to unseal court records, March 27, 2007. 122 See Rubin v. Rubin, Brentwood Family Division, Rockingham Superior Court, Docket No. 2000-M-0212, for a formal complaint regarding two clerk refusals to notarize or machine stamp or accept docket pleadings unless the party’s attorney was physically present at the counter. (September 3, 2001). I call Rockingham the Hermit Kingdom. There are hundreds of similar examples in this book.

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If a pro se complains about clerk treatment, it is ineffective or ignored. Multiple or strenuous complaints will result in the pro se being marginalized or harassed by court security, (as well as frustrated when the clerk refuses to accept their case filings or refuses to docket filings in the ordinary course of business).123 Often bureaucratic arrogance fuels the clerks handling — especially if a layperson questions the practice. The clerk’s fixed response to any request they want to withhold is, “I’m not allowed to practice law.” Nor, as it turns out, do they provide most forms, a reference copy of court rules, or omnibus or other help, or referrals for assistance.

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Bringing the problem to the judge’s attention in court may simply aggravate it — one refused to accept the filing in court, because the clerk refused to stamp it in at the counter. Yet inconsistently the judge at hearing ruled that all motions are filed with the court, not the clerk. These pissing matches can become very Kafkaesque. Courts provide no omnibus person to intervene. Pro se complaints get simply ignored because, clerks, like judges, have the last word. It’s more than lack of respect — but an insider system where perceived slights can become a disproportionate hostility.124 The indifference to service for those supposed to be the court’s customers, is astonishing to me.

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38 CLEARING THE BACKLOG

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Judges are creative when it comes to closing cases and increasing their ratings. Here are a few examples —

VACATIONING IN LAS VEGAS New Mexico Judge J. Wayne Griego got delayed in Nevada. “[He] called his secretary and had her sign off on more than 100 prosecutor filed plea agreements in traffic arraignment cases.” As a result of complaints about this handling, the state court is deciding what to do with …. the judge’s secretary! The court decided to begin a program to “educate employees on what their role is.”125

IMPEACHMENT CLEANUP For almost a year, Supreme Court judges worried about their own criminal fates — as they defended themselves in the New Hampshire Impeachment proceedings in 2000. In the meantime, they let appeal cases back up, until the backlog got handled in a month with one-word dismissals. Interesting that the dismissal statistics for those two years are not reported online, with prominent case-clearing and reporting charts beginning instead in 2004. It would be helpful to me to find out just how many State Supreme Court decisions were dismissals with one word orders [“denied”] after the 2000 impeachment fiasco? I really want to know. Was it thousands, as I suspect? Or merely hundreds? 123 There is a separate distinguishable class of nutty litigants who makes bizarre allegations about everyone, file incessantly, and write offensive nonsense requesting billions (or at least millions) in damages, against everyone from movie stars to public officials, and of course, judges. Several notables include Jonathan Lee Riches and Deborah Frisch, Ph.D. Some have been ordered not to file in court without pre-approval or are no longer permitted to file at all. 124 The N.H. Superior Court chief distributed a three page ‘satisfaction’ evaluation form for a short time in 1998 — that apparently went to select people — none of the court users interviewed for this book ever heard of it, were not polled, and when they specifically asked the clerks for a copy, were not even acknowledged. 125 Jeff Proctor, “Judge Had Secretary Rubber-Stamp Plea Deals”, Albuquerque Journal, May 13, 2005. A1, A12.

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State judges were very busy in 2000 defending themselves against House and Senate investigations and impeachment, and they were distracted from the day to day work of appeals. It created a mighty backlog from that year, the year before, and the year before that. And then, poof! The backlog disappeared. What dates were they dismissed? [Kind of a national in-house auditor came in two years later and issued a report, but it was unclear and picked up reporting a year after the dust settled.] What impact did the blanket-dismissal have on his report? And why couldn’t poor JNad come up with a list of cases he presided over in his career at his conformation hearings?

OOPS, I FORGOT THE MOTHER This anecdote just doesn’t fit well anywhere, so clearing the courthouse backlog will include the experience of Mrs. Adriana Torres-Flores in a Fayetteville, Arkansas court. She had been arrested for selling pirated DVDs at a flea market and had been released on bond. Mrs. Torres-Flores then changed her mind and went to the next court hearing to change her plea. At hearing this 38-year old mother of three pled not guilty, and as a consequence was to be transferred to the county jail. But an unnamed court bailiff put her in a holding cell and forgot her for 4 days. The cell was 9 by 10 feet, with concrete walls and steel door. No water, toilet or food. She used her shoe as a pillow. Sheriffs said a weekend “snowstorm meant there were far fewer people than usual working Friday at the courthouse.”126 That means not even a blanket in an unheated cement cell in a snowstorm. My sincere condolences, Mrs. Torres-Flores.

DRESS FOR ARREST My own experience with illegal arrest has taught me to think ahead, layer, and overdress when going to court — even for a civil or divorce hearing. Warm wool socks are worth their weight in precious minerals overnight in jail. You will have no shoes. There are no pillows, but if lucky, there might be a roll of toilet paper for a pillow. A blanket is a thin towel-sized piece of fabric. The wooden-slat bench is bolted to the wall and is about 12 inches wide — not enough to safely fall asleep. Water is in the toilet. The lights never go out. Food is scant, tasteless, and at odd hours. About 3 am I got a drunken cellmate, so I shared the TP pillow and she took over the bench snoring loudly. You can always sleep or sit on the floor.

39 CLOSING COURT LAW LIBRARIES TO PUBLIC ACCESS

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Closing public access to law libraries was not a function of increased internet access but a means to deter outsider interference. Effectively, judges asserted ownership over law by erecting deterrents to pesky public participation, especially by the poor. It started with library access. For more than a hundred years one New Hampshire courthouse maintained two rooms adjacent to the courtroom — one as a law library, the other an attorney lounge. While courthouses are public state buildings, court law libraries are traditionally operated as private sanctuaries for court club members. The Unified Bar Courts gradually began making these areas off-limits to the public. In the 1990s a more sophisticated pro se public began using the libraries, and judges started systematically eliminating public access, requiring the public to get legal information only during highly limited hours at the state supreme courthouse. The campaign progressively narrowed public access until it became effectively non-existent for New Hampshire and across almost every state.

126 Adam Nossiter, “Arkansas Woman, Left in Cell, Goes 4 Days with No Food or Water”, March 12, 2008. The court bailiff got a “brief, unpaid suspension,” “National Short Takes” (Summer 2008).

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In New Hampshire, there was a quiet but comprehensive closure of all county courthouse libraries to the general public in 1994. The state court took-over responsibility for state law libraries and instituted the closings.127 This was in keeping with the narrowing of law practice, to exclude all but licensed lawyers from free access to legal and research materials. Legal reform activists campaigned to open several court libraries — noting that in some courts, the public was allowed in, but in others, they were not. They pointed out that tax money provides the buildings, the books and the staff. Following this public ruckus, state judges solved this problem by closing off all county libraries from public access. Nonlawyers simply have to drive to one limited location, where they cannot check out books. Practically, this meant hours spent driving to the state capital in Concord to use the Supreme Court library or alternatively, use a small part of the library at the state’s only law school, also in Concord.

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At the same time it closed local libraries, the state Supreme Court contemporaneously cut back “public hours” to two or three days a week. And the state’s only private law school literally put up new walls to close-off public law books from the rest of the school’s collection. By federal right, the school must allow the public to access the Federal Book Depository collection. Club members, judges, law students and alumnae continue as usual, but the public abruptly found itself shut out of most of the state legal research resources, including hours and weekends when the “statemaintained” public law library shifted from the responsibility of the legislature, to the responsibility of the court branch.

ELITISM The effect on the poor and those who operate with and without basic computer access, this rankism allows judges to claim that they provide access, when it is not available in an effective, usable, and traditional form for millions who want to research law using books and hard copy examples. Or for the millions who do not have the bar-member free access to the member on-line case searching data banks. Because bricks and mortar libraries (the Bar building library, for example) provide member access to every conceivable sample form, pleading, defense sample, checklist, CLE and other government manuals — the inability of the public to readily access that and other similar ‘help’ is not only elitism, but it thwarts the public duty owed by the entire court system. It goes far beyond red-lining free and low cost clinics, and the inability of the public to obtain pro bono legal services — it perpetuates the artificial boundaries based solely on class status and wealth. The lopsided access to public resources (largely invested in criminal and state prosecution) when compared to an enfeebled token accommodation and resource-allocation to the poor, the disadvantaged, the general public and other unprotected members of the public, further supports my contention that Judges manipulated to re-design a highly flawed Insider bar-law system, using public funds, for a public purpose, yet excluding the public. Either public funding, or coerced bar-member dues and tuition — either way, insiders are getting free access, to what is publicly funded, yet functionally denied to the public.

GOVERNMENT HOW TO MANUALS There are some ring-binder law books, printed and paid by the government and used daily by federal and state prosecutors and state employees, yet systematically hidden from public view. But they are public works, kept in obscure dark places, without a bonafide reason to deny general public access. They are extraordinarily helpful to pro se and defendants in court. These include law enforcement and state agency handbooks, updated often with how-to steps and important reference cases and citations for each stage of prosecuting or proving a case in court. As ‘dummy’ instruction manuals on how to prosecute, they are extremely helpful step-by-step guides, if you are being prosecuted. These are public books, but the public isn’t usually allowed to see them or even know about them. The State Attorney General Handbook is kept out-of-sight behind some desk, but you can make an appointment to review it — a government manual. 127 The state law libraries were established in 1716 when New Hampshire was still a province of England. The legislature established law libraries and built and funded state law books and new buildings in 1816, 1895, 1943, and 1970. There were law libraries in each county, attached to the ten Superior County Courts. In 1994, under their new-found monopoly, State Court judges assumed control over state law libraries, closing all but one — the John W. King Library at a newly constructed Supreme Court judge building/library/court administration complex in Concord.

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The United States Attorney General (USAG) Attorney Resource Manual128 (a dozen or so five-inch binders) were quietly stored at the New Hampshire State Supreme Court in a judge’s private office, behind his desk, about six feet up on top of a tall bookcase. I had to make an appointment to look at them and make copies. The Index volume alone lists process, appeal, crime, fine, sentence, along with attorney steps and how-to-go-to-trial techniques — (you name it) — are all included in this professional weight-lifer set of books. Helpful also are the anticipated defenses that can be raised by Defendants. Other how-to and comprehensive legal education manuals (usually spiral bound or three-ring binders) are available at the state bar library or sometimes at a law school. I have found agency handbooks printed (for state employees) — for such areas of law as child abuse or termination of parental rights — are most helpful to try to figure out what and how state practices arise, (beyond a mere recitation of statutory law.) They also have case citations and helpful hints for caseworkers and state lawyers, along with anticipated defenses and issues that might arise at each stage, including trial.

PRISON LIBRARIES Prisons across the country also have systematically closed inmate libraries, and reduced the number of books available to a mere handful, regardless of the size of the prison population. When I closed my law practice, I tried to donate my law books to the state prison. In addition to extensive paperwork, I was told it would take an act of the Governor’s Executive Council to allow my donation. It explains why prisons with a population of 40,000 or more have only a handful of law books available for prisoner research.

ON-LINE RESEARCH More recently, lawyers and courts have moved to electronic legal research, an expensive Westlaw or Lexis law systems that are prohibitively expensive and complicated — or in New Hampshire, public electronic access required a trip to the State Supreme Court in Concord, and a cost of five dollars a minute.

Fortunately the internet provides some piecemeal resources, including the following free and easy-to-use case/law sites. General and cross-referencing is generally not available or not extensive. Google scholar Court listener.com

Find Law LawJustica.com

Law Lookup ixquick

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Other institutions that claim a right to internally measure their own performance include — the CIA, the IRS, the FBI, the DHS, and the NSA. These secret self-regulators are still subject to external oversight of Congress, or by courts through litigation. Since penetration of the façade of the Catholic Church in the 1990s, only court abuse remains totally self-regulating, self-reviewing, and unaccountable. The Court System is an American government institution that holds itself completely above and outside of any true forms of public accountability except impeachment. It does this by refusing to provide transparency, making its own laws/rules, and insisting it has total ‘judicial independence’ from the other branches of government under 128 The DOJ Organizations and Functions Manual is a favorite, because it provides opinions with case analysis that short-cuts the time it takes to research any topic — for example, fight public access to court records and exhibits under the Nixon ruling, or maybe a sample brief filed on the juvenile court pornography exception. The DOJ summaries become the starting point to learn the state position and to move forward from there. Very helpful manuals if you can find them.

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the Constitution. Then it takes it’s own temperature, and releases periodic internally-generated public media reports assuring the country and the world that judges and courts are doing great, and we should trust them because the court system is working well, according to the court spokesperson. In the last decade, we have seen an increased number of court ‘self-evaluations’ and court-administrative-reviews, designed to demonstrate how “well” (i.e. “good”) the court system operates, or how demand for court service has increased. However Judges avoid seeing systemic flaws in this Insider system. They —

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Set up studies that avoid and generalized problems in a way that is meaningless to recognition, correction and or change within the system.

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Avoid appraisal of user cost-benefits, results-accuracy, error rate, indicators of internal corruption, customersatisfaction, meaningful access to courts, and social harm/impact. Use-incidence reports avoid looking for systemic problems and causative factors. They underreport and treat each incident as a separate anomaly to avoid the big picture. Collect and use data for reporting that is shallow, incomplete and/or corrupted — at each stage of gathering, analysis, summarizing and reporting. Avoid gathering and assessing individual and comprehensive data and statistics about judicial conduct complaints, and follow-through in disciplinary actions, in any complete and meaningful manner. Provide cursory misguided polls, summaries, and court statistics that evade accurate reporting of errors, abuses and systemic problems. Provide insider committee members tainted with protective self interest, rather than inquisitive, objective and independent research and analysis. Generate self-interested assessments and studies that are cursory, grossly under-funded, and unimportant within the industry.129 In addition to procedural corruption in data-gathering, the study selection, analysis, and conclusion processes lacks independence and transparency and a public ability to verify. There are no true independent public audits of courts as public institutions, or grading of judge work as legitimate exercises of authority. The focus of courts is not to provide a public service to citizens, or even to uphold First Principles. It operates as a purveyor of power. The justice system lacks for excellence because quality of judge performance is not a goal. The court system is a quasi-business quasi-government conglomerate, composed of judges and would-be judges. The spawning ground of judges is connected into both the political spectrum and the bar association. It is a self-serving corporate body that moves between quasi-government functions and outright patronage. The system bestowes congratulatory promotions, honors, offices, and rank, interspersed with fee-appointments, free perks, trips, and events.130 The government administrative structure is incestuous with the business of the bar association. Together they maintain a stranglehold on licensing and discipline of members that in turn works to insure no criticism of the status quo goes unpunished. So how can anyone connected to this cabal do a valid self-assessment? They farm it out to other private corporate relatives — same DNA, different family.

THE AMERICAN JUDICATURE SOCIETY — Since 1918, this self-vested professional organization has been dedicated to providing judges with public esteem. It routinely produces public information supporting judge-independence from external oversight. It produces internal magazine/reviews, studies, statistics, and support — an upscale trade-union promotional campaign and industry-reporter. 129 For a specific example, see a deconstruction of a U.S. Senate Judiciary Committee Investigative Report in Ch. 8. 130 Generally paid by membership dues, fees, costs, and the interest earned from client-trust fund bank accounts.

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Where do they stand on issues raised in this book? Outside in the cold. They are clueless to these abuses, despite a constant drip of revelations about judge abuse. They stand on the side of promoting “judicial independence” and a “co-equal branch of government.” Virtually every public council, commission, legislative study committee and reviewing organization that undertakes a review of judicial discipline or court satisfaction surveys is internal or stacked with people loaded with the professional tools and public or private funding needed to protect judges from external oversight.131

STATE COURT/BAR JUDICIAL DISCIPLINARY COMMITTEES, COURT STUDY COMMITTEES In law school, I watched the national bar charged with judicial disability avoid the topic of judge abuse.132 Later as a lawyer, I watched judges fawn circles around lay (public) members of this state bar committee, well-meaning people who were deliberately kept in the dark like mushrooms about written standards and treatises that they should have been applying to cases that came before the committee. The notorious water-carrier Judge Coffey presided in various positions on this state committee for a decade. And we all saw how well that worked out. The system can purge complaints before they ever make it to committee; it whitewashes complaints, puts them into black-hole of investigation for years; the committees assemble meaningless incomprehensible annual reports on judicial discipline that provide scant and inaccurate information, without deterrent or accountability. Discipline goes from soft to non-existent. Transparency is none. The committee meets infrequently (sometimes only once a year) which further insures the real work is done behind the scenes by court staff and judges, and the meeting is meaningless formality and output.133 Criticism, evaluation and study are all internally generated by design to insure the institution holds on to public trust — no matter what injustice or abuse occurs or how often or how widespread. This self-interest renders these vested assessments valueless for exposing and weeding out bad judges and practices. Some studies released imply there has been recent court reform, by pseudo-community-education or by programs that give highly limited ‘advice’ to the public. These meager efforts are window-dressing, and are not in the same universe with the systemic problems identified in this book. Self-directed surveys, statistically limited pseudo-research, and a lack of independent assessments makes these internal reports meaningless, tainted, and self-serving. Just as the FDA requires independent research,134 so lawyer-groups are unable to reliably report on major problems within their system.

LOYALTY Judges and attorneys are too vested in the present legal system to adequately evaluate real needs for change and reform. Their professional careers are vested in maintaining the current system, which demands absolute loyalty to judges. The livelihood of court staff also relies on the process of ensnaring ordinary people into the excessively high cost of litigation. The process funds this closed system.

DISPOSABLE COMMODITIES The court system is an economic system where ordinary people are treated like disposable economic commodities. Units of commerce. Quality judging doesn’t even get lip service. How can members within the system assess and quantify their own closed benefit system without destroying it? The problem are compounded and created by the need for judge

131 The issue of the process and effectiveness of internal discipline of judges is another book. 132 Early in law school career, I was appointed a national representative to the ABA National Judicial Disability Committee, where I met my first important mentor in Judicial Disability. “Judicial Disability” means not only retirement and pensions but conduct and discipline. 133 After the impeachment proceedings, New Hampshire claimed it made this committee ‘independent’ in physical location and apart from the court. My assessment still holds. 134 The FDA similarly falls under the rubric of using narrow, pro-industry generated studies on products ranging from pharmaceuticals and vaccinations to sugar — all of questionable independence.

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loyalty. The inability of lawyers to report bad acts of judging for fear of retaliation creates a lack of independence and financial to impact their standard of living and ability to practice law. Courts cannot be trusted to effect real reform because reform is contrary insider goals, and would threaten the institutional power structure. As long as lawyers monopolize the legislative and political process, and judges control the lawyers, the vested interest of the legal profession control legal reform. The court is not capable of honestly assessing itself or the ol’boy system.

CHAPTER

Control of Court Data: limiting access and failing to collect the data. Data tells the story.135

3

Earlier references to the Sustain court data collection and storage system, demonstrated how a court programming employee reprogrammed the state computer code to prevent public access to public records. But court counter clerks routinely deny public records searching. The administrative practices overall make it impossible to do computerized searching, sifting and analysis of quality control elements that might be utilized by watchdog organizations.

Intelligence Gaps. “We don’t know with any precision how much we don’t know.”136

Several examples demonstrate how even simple computerized alphabetical information has been locked away from public scrutiny.137 That means, for example, if someone does not have at hand, a case docket number, they are not allowed to request to view court files. So trying to review or conduct assessments about how each judge handles similar cases, or to survey outcomes or sentencing, or to establish obscure patterns of handling a case is futile because the basic information is not made public, despite laws requiring this.

Here are both halves of the Levinson/Rosenthal definition of the ol’boy network The CEO Corporate Leadership in Action, by Harry Levinson and Stuart Rosenthal “The ol’boy network in any segment of society is a recognized impediment to outsiders who seek to conduct business successfully.” “The style…had been to hire mediocre men who would become part of the old culture and not raise problems or ask questions — the good old boys. Nobody cared about their abilities as long as they came from the right places, had gone to the right schools, and had the right family backgrounds.”

Corrupting the software. Theo Kamasinski’s suit to open access to public record court dockets and his deposition of the State Court IT director138, chief record-keeper/computer programmer139 told us a lot about the court’s data storage 135 Freakonomics A Rogue Economist Explores the Hidden Side of Everything by Steven D. Levitt and Stephen J. Dubner, 2005. 136 From a hidden memo to Donald Rumsfeld, 2002, on U.S. lack of information on Iraq’s alleged WMD. http://www.politico.com/magazine/ story/2016/01/iraq-war-wmds-donald-rumsfeld-new-report-213530#ixzz3yIgMNDZs 137 Two-hundred year old common law (codified in each state) provides each clerk of court shall maintain an alphabetical index of the names of all parties to an action or judgment, with reference to the book and page; if two or more plaintiffs or defendants, the name of each with appropriate reference shall be inserted in the alphabetical index. For example, see 1786-1787, Mass. Acts, ch. 57 (1786). 138 Docket numbers are generally in chronological order, cross-referenced against the alphabetical index. 139 IT court director, Don Goodnow.

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§40 Control of Court Data, Polls, and Court Statistics

program and how it was deliberately altered to mix confidential files with general files. The claim that re-coding to prevent public view of the dockets is in a way, another of those judge manipulations not meant for public knowledge.140 The unanswered question remains: was Mr. Goodnow acting on his own as an über loyal court employee, or do the judges actually affirmatively reprogram the software to mix data so the public doesn’t have any way to access public files? After twenty years on the district court JNad wanted to graduate to the Supreme Court. He earlier had testified that he appointed himself to a number of high profile cases, but was unable to produce any case list for review before and during public hearings on his proposed promotion. Really? When asked for his best decisions, he named one, which he described contemporaneously at his hearing. This on-the-spot limited disclosure prevented the general public and the Executive Council from preparing an independent assessment of his career performance. I listened to his narrative and thought — There he goes again — making up new rules and procedures in place of laws passed by the legislature. He described with pride how he ordered a free state college education for a prisoner (to turn around the young man’s life and get him ready for life after prison.) Great! J. Nadeau was really enthusiastic and proud of his handling of this case. He was clueless that his so-called best ruling had unanticipated consequences and established new State precedent with a multi-million dollar (unfunded) financial impact on the State General Fund. The free college tuition case provided precedent for all prisoners to have a state funded, free college education. It thoughtlessly established state standard for college degree courses for prisoners at tax-payor expense, while non-criminal citizens still had to pay for their own college educations. That’s what can happen when activist an judge substitutes his ‘judicial creativity” for the role of the state legislature inventing new public policy. Since this nomination was based on politics and JNad’s close friendship with the Governor’s husband, his career performance was not supposed to be the focus anyway, and it proved immaterial to his ascension.

WHY THE STUDY OF HOW A JUDGE HANDLES OTHER CASES IS IMPORTANT — Access to data allows meaningful independent study of judicial practices, favors, special appointments, or other measurable techniques of improprieties and unusual handling by judges. Data about the number of challenges a judge receives might encourage other challenges to a judge’s authority. People wanting to remove a judge could check for other cases where the judge was asked to step down, whether or not he did so. Controlling data keeps the judge’s handling in each case “separate”; this weakens the public ability to see and report what may be abusive or inappropriate patterns and rulings. Public review could demonstrate how many times a judge appoints his friends, which friends, and how much those insiders earn from those judge-appointments. A more sophisticated level of analysis in just the cases identified as involving judge-friends, is to calculate how efficiently the cases are tried, and whether or not the judge acted to extend the friend-$-roles, and the length of time it takes that case to reach a final conclusion. If there are extensions, who initiates? Who benefits from extra billing? Is there a ‘valid reason at law’ for the extra costs incurred as a result of judgeinitiated appointments and extensions?

140 First Circuit Federal Court, Kamasinski case, supra.

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Open Data Access allows the press and special interest organizations to conduct independent research as surrogates for all Americans. The court cautions this is highly problematic, because of “the vagaries of public presence”, the need for ‘sophisticated’ legal researchers (not reporters), and its reluctance to rely on ‘the presence of nonprofessional observers.”141 By crosschecking judge cases against the same judge’s judicial disciplinary records, outsiders could see if the judge evaded discipline, how often, and when.

CHAPTER

By controlling court data with unnecessary restrictive objectives, the court can prevent public disclosure patterns of cronyism.

3

A Massachusetts study revealed court claims that unrestricted public access to court-controlled data would result in invasions of privacy involving “extreme embarrassment and humiliation” and “severe professional and economic hardship.” There are privacy concerns involved in opening secret court dockets and records for public scrutiny, but judges or their attorneys or clerks are not reliable or trustworthy arbiters because they clearly bury their own judge errors and mistakes. The court has a demonstrated inability to balance First Amendment and citizen rights against it’s own judge errors, abuses, and favoritism for Insider-practices. The fact that judges can’t even release names of cases in accordance with the constitutional mandate to keep a list of all cases as public record without everyone at court monkeying around separately with Reprogramming the state computer database? Hiding records in secret locked rooms? Boxes of files taken home? Boxes of court files released to opposing counsel? The judge’s ethics attorney taking a whole year’s secret case files home? Institutional abuses and cover-up of judicial misdeeds and mistakes should give way to a uniform policy of public openness. It’s a sign of mutual respect. The court needs external oversight and quality control safeguards, and perhaps these tasks are better carried out by some other legislative branch of government, in the interest of open records and public safety? The way the state and federal courts are interpreting the Constitution is self-interested and unreliable. The overactive role of judges and expansion of court authority is beyond what constitutional scholars find is the limited role of judges. Scholarly writings of both sides of the political spectrum indicate this is not a liberal or conservative issue, nor a federalist or patriot issue. It is an American problem.142

141 I applaud prisoners for taking college classes. Pamela Smart received several scholarships including one from Mercy College, and obtained two college degrees and has become a minister. 142 See Polaski, 868 F.2d 504.

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CHAPTER FOUR: TABLE OF CONTENTS

CHAPTER FOUR — FINANCIAL TRICKS INTRODUCTION: A WAR MENTALITY §41 THE FIRST RULE OF WAR IS PLUG THE SPRINGS §42

SCORCHED EARTH

§43

NUCLEAR WINTER DESTRUCTION

§44

WINNER TAKE ALL CASES

§46 PUBLIC POLICY, GUIDELINES, AND STATUTORY PROTECTIONS §47 LAW EVADING DIRTY FINANCIAL TRICKS §48 TIME OUT FOR PRACTICE TIPS ON DECONSTRUCTION ANALYSIS §49 MORE LAW EVADING DIRTY FINANCIAL TRICKS §50 CHANGING THE UNCHANGEABLE: ADVANCED TRICKY MODIFICATION TECHNIQUES §51

SUPPRESSING ALTERNATIVES

§52 ATTORNEY WHISTLEBLOWERS — THE ATTORNEY SMACK-DOWN §53

THE HIDDEN COSTS OF BAD JUDGING

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§45 EQUALITY OF ARMS AND OTHER FAIRNESS DOCTRINES

Chapter Four — Financial Tricks

INTRODUCTION: A WAR MENTALITY To understand the mentality of the litigation process requires knowledge of the nature, personality, and training of participants, especially lawyers and judges.

CHAPTER

Some court cases have no apparent insider judge manipulation. Not only is this an enormous tribute the lawyers involved, but a reflection of the hard work of judges keeping tight reins on parties and counsel to insure a fair courtroom fight. It’s hard to be a good judge all the time. Fair judging goes against an industry grain that tolerates and even encourages a no-holds-barred attitude of trial lawyers, prosecutors, and judges.

4

A fight-club attitude may be an integral part of what drives (and discourages) the types of people who apply for law school. Lawyering is a self-selecting process. People with little (or less) taste for intellectual (often obnoxious and perpetual) sparring and Machiavellian scheming; those who by nature are non-confrontational and less critical; and whose natural thought pattern is ephemeral, creative, non-linear, are often more inclined to enter other professions that help, problem-solve, and involve arts, business and helping professions.1 Also the gatekeepers in law school and bars subliminally discourage certain Myers-Briggs types from entering or completing law school. Two out of three who began my first year law class dropped out. Some were adverse to the personality of people attracted to the power and process of law. Along the way, despite the best intentions, there is always the element of greed.2 In two hundred years, the number of law schools has grown from one to two hundred; qualification to practice law went from training by study and mentoring — to classrooms. And the fundamental nature of legal training and thinking took a very different road leading to problematic results both on the lawyering and on judicial report cards.3 Modernly, law students are trained to do what it takes to win, using a Socratic method which no longer emphasizes knowledge of law principles, the Constitution, statutes, rules, and logical thinking, but instead focuses on a skill set that develops and rewards adjustable thinking, splintered facts, and the ability to polish verbal attacks based on mental agility and rationalization. Law school alters almost everyone’s natural thinking patterns. After graduation, the art of rationalization is further fueled by a discovery that not only is winning fun and addictive, but it pays well. There you have it — financial lust. These factors combined into a constant warrior pose, even when unnecessary or inappropriate to resolve a case. Morality, sensitivity or kindness are not taught or valued at law school. Nor are they appreciated in court. In fact, expect the opposite, where virtue is viewed as weakness and an opportunity to exploit. A lawyer incentive is to avoid finding a common solution, delay, over-bill, and manipulate with impunity to win at a large cost. The perversion in justice has nothing to do with a search for truth and the Rule of Law. It dishonors the profession, and the people caught up in cases, by using them as billable fodder. What stands between lawyer war mentality and the legal destruction of other human beings is the management power of judges — to prevent or equalize inappropriate and unfair war tactics between players. Modernly this court practice has escalated out-of-control. In relation to costs, benefits, and morality, waging legal war is disproportionately

1

I want to add sheep-herding to this list. Much of my sheep-herding pursuit was time spent in reading and philosophical reflection (never boredom.) This book owes a debt of gratitude to my Navajo sheep. Not so much to the Toulouse geese, but they also contributed hundreds of delicious giant protein omelets to my thinking process. Since I’m at it, I want to thank my dogs — a point of love going both ways. They keep me active, especially when I want to over-sit because I am engrossed writing.

2

The Scott Turrow icon-novel of first year law school One L is classic. Also Cameron Stracher, Double Billing A Young Lawyer’s Tale of Greed, Sex, Lies, and the Pursuit of a Swivel Chair, William Morrow (1998) describes first year corporate law in a similar style.

3

The genesis, growth and direction of American lawyer-training is described in Chapter 8. An ABA Study from 1989 to 2013, ABA Report on Legal Education and Development confirmed problems described here (in nuanced language, of course) with a corrective approach of resolving flaws within the ranks through additional education and a major $$$ bricks and mortar training facility — rather than the author’s approach, which is to inject transparency, external accountability and competition into the court system. Same problem, different POV (point of view) solutions.

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§41 The First Rule of War is Plug the Springs

expensive to other expenditures in our society. In family law cases, it is predatory and immoral. One goal is to help readers identify war tactics, and assess the propriety of using them. Judges hold power to eliminate or enhance these self-interested patterns of financial and social abuse, but have no motivation. The hidden incentive is to enhance the propensity, training, and greed fostered throughout the court system. It goes against the modern institutional grain to try cases without devious manipulation of facts and law. That lack of manipulation would lead to more predictable outcomes from simple application of the Rule of Law (Constitution, statutes and rules), instead of the treacherous and unpredictable outcomes coming from modern judging practices. As court users, people find wild unpredictability with decision-making by judicial discretion. The bad cases reported in this book are decided largely by abuse of judicial discretion and misuse of authority. By nature and nurture, litigation involves a collection of professionals who are not only NOT a cross-section of society, but they are shortchanged in sympathy, empathy, compassion and mercy. Some also would say scruples about truthfulness and ability to logically reason. Nor are these traits taught in the typical law school curriculum. [Note: For that matter, probably half of the people who file lawsuits lack social and personality traits that enable them to resolve life’s problems by other means.] This means people going to court probably include a disproportionate number of bad tempered, egotistical, obstreperous people with a propensity for argument, verbal combat and manipulative behavior. No one goes to court to find friends. Litigation is one step removed from self-help. It’s an alternative to the use of lethal or physical force. But both power and greed fuel the inherent war mentality, led to a system where lawyers to engage in obnoxious endless argument and rationalization — to win at any cost — but not by proving law elements and principles of the Rules of Law. These traits affect everyone in court, but also turns clients into billable fodder for the industry itself.4 After a century of this kind of practice, judges forego win-win solutions, and instead feed the beast by rewarding lawyers for sophistry, manipulation and dishonesty, over knowledge and application of law. It created a monstrosity of judge and litigator practices.

41 THE FIRST RULE OF WAR IS PLUG THE SPRINGS

§

“To overthrow every fortified city and every major town, cut down every good tree and stop up all the springs, and ruin every good field with stones.”5 Plugging the springs is a preliminary tactic. It means one side secretly takes control of resources (generally cash or financial assets) early in a case in order to build a strong financial position, all the while depriving the other side of essential financial life-force resources, (necessary to resist and survive the upcoming legal attack.) The tactic makes the strong stronger, and the weak lose early. This early Bible war technique is designed to weaken an opponent before the battle. By blocking the flow of water in or out of a fortified town, an attacking army could wait in relative safety for those inside to suffer and eventually die of thirst or surrender. Either way, the aggressor avoided personal deprivation and harm, while creating fear and intense slow suffering for the other side.

4

A war treatise written by former WSJ writer Max Boot, explains well the 1960s mentality of war in the military, (abandoning two centuries of valuable hard-learned fighting tactics gleaned from small American wars around the world, that placed the nation into the quagmire of Vietnam.) See Boot, The Savage Wars of Peace, Chapter 13, Lessons Unlearned, Vietnam, 1959-1975. Maybe the shift and new direction-thinking for the Court coup was another parallel folly of national proportion? In both branches of government, national leaders appear to have thrown out the baby with the bathwater. Citizen outcry was the defining element for policy reversal in Vietnam, but during the same time, Judges protected themselves from outcry, by ruling they were (a) self regulating in secret; (b) immune from public criticism. So judges have been able to duck citizen protests. Over the last 50 years, Courts have defended their imperial practice of systematically avoiding public criticism, by punishing criticism of judges, one case at a time, (often as contempt of court.)

5

2 Kings 3:19, Bible, New International Version; See also 2 Chronicles 32 (The Message) When under Judah was siege, it was decided to plug the springs and tear down the aqueduct, in order to deprive Assyrian invaders of precious water and to weaken them by great thirst, 2 Chronicles 32.

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Chapter Four — Financial Tricks

The Warrior mentality has increased across America because judges fail to recognize and control this kind of battle tactic. It is actually often admired within the profession. Every contemporary court situation from domestic to criminal — is a war zone, with money as the modern flow of springs. Judges seem oblivious to their management responsibility in battlefield cases. While it is in every court, it shows up often in family law, where the parties stand in dependent and intimate status with each other. This book is about judges who — increasingly jump into the fray as co-activist. I first identified it as a widespread symptom in the Ex-Wives of Judge divorce cases, where trial judges clearly abandoned neutral judging principles, and got personalized, sometimes with the zeal of battle against an outsider, with inappropriately financial rewards and punishments — unrelated to the merits of the case. These rough and tumble judicial acts are inappropriate in both a social and moral sense, as abuse of the public trust. A judge is the only safety valve against litigation abuse in a system with no other effective oversight. Judge-examples tend to be abuse based on ego and cronyism. The public is left to deal with the resulting social, psychological and financial damage one case at a time.

THE FIRST RULE OF A COMPLIANT JUDGE IS TO SHUT-OFF CASH FLOW TO ONE SIDE

CHAPTER

JUDICIAL COMPLACENCY

4

If the party filing the case (an aggressor) already acted to take assets, and the judge sits back and affirms or ignores the unilateral taking, it’s a signal of a problem judge. By failing to ask, by ignoring acts of taking, or by ducking the imbalance between the parties, a judge signals tacit approval. One-sided looting (of marital assets, for example) happens all the time in ol’boy divorces, where sophisticated insiders take advantage of a spouse by ambush. Their goal is to take and hold a large financial advantage, while leaving the other side confused, anxious, overwhelmed and poor (often flatbroke poor). It can be a real jolt to affluent family members — for this book that includes wives and children of judges. The presiding judge’s failures to act (promptly) are acts of omission. Failing to make a timely effective address of a preemptory-taking establishes the economic imbalance between the parties for the remainder of the case. It undermines the statutory and social policies underpinning all case handling. Inaction is an insider message that the case will proceed in a compliant members-only atmosphere. Failure to act means an already-dominant player is de facto6 empowered for the rest of the case, while the other side gets hard-wired to lose. It is an inherent problem in family law, made worse through the widespread use of no-fault divorce.

6

De facto is a fact or deed that is illegal or illegitimate but must be accepted for all practical purposes. Blacks Law Dictionary, 5th Ed.

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§41 The First Rule of War is Plug the Springs

Strategy and experience My understanding of financial tricks against non-insiders comes primarily from divorce cases — my own, the ex-wives of judges, client cases and others reported to me. But plug-the-springs tactics get utilized in every type of legal forum across the spectrum of courts and law enforcement — from civil pre-trial attachments,7 confiscations, pre-probate takings, bankruptcy and trustee abuses, mortgage confiscation, civil and criminal forfeiture, real estate transactions, and domestic divorce takings between spouses. Those in the know in government and law are adept at devising ways to take and keep dollars and assets from a weaker, unsuspecting nobody-status’d litigants, even before a case is filed, or a defendant charged, or a spouse put on notice of a pending divorce. This war tactic is to deprive the other side of the use of their own funds and assets by surprise before or early in the litigation. Then the trial and appeal process function in ways that help the powerful stay that way, only richer. Appeal decisions, for example, are skewed by rules and custom to uphold trial winners (takers). There is also the ferocious law, “To he that has will be given; to he that has not, will be taken away.”8 Used by judges and Insiders in all types of ‘legal’ confiscations, takings, and transfers, the deprivation of one’s own property, income (and in my case, livelihood) has become a lucrative practice and government funding program of federal and state prosecutors, (the “Prosecuting Princes”9) who not only collect a reward percentage, but also cut off the owner’s access to assets to hire a defense team, before the court case is officially born. Conceived, but not born. It establishes a lopsided prosecution, favoring the State, ab initio. On review, judges look at cases from the winner’s side. So all this unfair taking is accomplished through a court process that requires the losing side to practice total subservience to the authority of judges. Judges are a non-insider’s only safeguard. But, in every kind of case, judges largely are co-opted and they play for the home team. The way modern monopolistic courts operate, justice has lost its conventional meaning, but only those inside the system understand the upside of that systemic bias. The following four chapters provide examples of how this inside-system operates to take not only their financial assets, but the dignity and autonomy of court users. Knowledge is power, so an alternative viewpoint of what can happen in court from a persistent court loser may enlighten those required at law to be subservient victims. I no longer assume that defendants and other court victims earned the law abuse they receive at the hands of judges, prosecutors, and the court system. Vilification and criminalization of innocent people is an ugly part of the ordinary court process that dehumanizes non-insiders, so in a legal sense they subsequently can be brutalized financially and emotionally in court. The use of my cases and experiences Having up-close and personal case examples is intended to compare abstract judge error/abuses directly with the human impact and suffering that follows in due course. But it is a loser’s perspective that demonstrates pain and suffering caused by errors and misuse of authority. Pain lasting decades or a lifetime. Loss of financial freedom, physical freedom, and basic dignity are the result of law policy that creates unnecessary human suffering. Pain and suffering is not obvious or important from an imperial tower perspective. There are few publications in print reporting judge error and abuse. And yet it is a widespread but unrecognized and under-reported problem springing out of a new far-reaching system of judicial autonomy. Books tend to fall into one of two categories for reporting — either abstract law teaching (treatises) or personal narrative about one case (memoir). Both approaches put analysis of judge-abuse on the backside of critical study because (a) they appear to normalize abuse as a small, but naturally occurring parts of a large organizational operation (therefore just anomalies, unfortunate, but understandable) or (b) it dismisses each case reported largely as the ranting of some poor loser who complains without knowledge, understanding, or authority. Both reporting practices fail to anchor the gravity, extent, and irreparable harm-caused as a systematic court problem created by bad judging. Under both reporting methods, individuals and the profession evade recognition of a larger nationwide problem. By secretly abusing a public — individuals from which judges demand total deference under threat of contempt, courts actually increase the number and extent of abuse that occurs in court. The present system financially and socially rewards insider warriors, and provides no deterrent for their bad behavior. There are a lot of cases out there I call law orphans — cases without possibility for cure, stemming from errors and mishandling by judges, who evade justice because by design, the system does not police its own. My presentation tries to include both — the personal devastation caused, along with a step-by-step rational law analysis of how the ordinary operation of courts condones and promotes egregious abuse in these individual case travesties. For this book, I demonstrate largely with family law case-examples. At the end of the chapter are two exercises for analyzing cases with questions about how judges engaged in financial trickery. Readers, alerted to these simple classic examples may be able to react to reverse financial and other calamities improperly occurring in future cases and to establish a record.

7

Civil asset forfeiture is on the rise again because federal agents are allowed to seize assets and receive a share back through the Department of Justice Equitable Sharing Program. See Charles Koch Institute, Civil Asset Forfeiture’s Future, A View from Law Enforcement, April 27, 2016.

8

Kren & Rappoport, Ch. 5, Resistance the Ideas and Actions, quote of Primo Levi, supra 115.

9

Coined by Attorney Mark Adams, Andy Ostrowski Radio on Attorney Whistleblowers http://twigscaferadio.com

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Chapter Four — Financial Tricks

A FIRST STRIKE PATTERN The first act works to define the relative strength of the parties, and sets the tone for the entire case. A party who secretly pre-empts marital funds and assets, and hires counsel, is more likely to retain those assets during and after divorce. Because possession counts, judges look away, and because the first strike helps the aggressor fund the rest of the litigation, it lets every professional in the case know which side had money to pay lawyers and other reinforcements needed to wage a war. In many cases, the other side can never recover from a first strike — due to financial disparity and the judge’s blind eye. Even if they can afford an attorney, recovery efforts are defensive uphill fighting, and it is hard to get a foothold, much less mount an offensive after this kind of ambush. Example one: The retainer. The man getting a divorce insisted on handing my new young associate a retainer check of $110,000, which she submitted for deposit in our law office trust account. I discovered it much later and insisted on its return, as it was out of line with a normal sized retainer, and the size suggested the husband was hiding funds. The client later initiated a personal relationship with this young married associate — two strikes for moral character against both of them.

CHAPTER

Example two: Vacuuming assets. Cases indicate trial-lawyer husbands and judges may spend months or a year before initiating divorce. They use this time to vacuum up all kinds of marital perks and assets. They surreptitiously removed things of value — both tangible goods and intangible property and investments. They surreptitiously change estate and insurance documents — for example altering the beneficiary to read “the beneficiary is my estate” (replacing the language “my wife”.) They draw-down business profits and bank accounts, open off-shore accounts, file taxes separately, use marital funds to bring separate credit accounts to a zero balances, overpay their separate accounts to create credit balances — all while running up joint account balances and living in apparent connubial harmony with the wives. Since I was one of these, I refer to myself as “the little woman” scenario.

4

Example three: Asset-character conversion. Each of the judges of the ex-wives experienced some kind of asset/ debt character-conversion (just tidying-up) before their judge-insider husbands filed for divorce, although at the time, the wives were still in little-woman trust mode.

GOLD-DIGGING SUCCESSOR HUSBANDS The most common conversion-pattern among judge husbands (especially in their second, third or fourth divorces) was to convert separate debt into joint marital debt before filing for divorce. Sometimes, this was planned in tandem with some anticipated financial windfall by the second wife, such as her receipt of inheritance, property division from a former marriage, or some other asset, which clearly was separate property. To keep the second marriage afloat, a wife is persuaded to ‘share’ her home equity, accounts, and other separate assets with this nefarious bed-mate/spouse.

This occurred in some form or another in 93% of the ex-wives of judges’ divorce cases, even for first marriages.

Assets can be any financial accounts, retirement funds, equity borrowing, large lump sum convertible assets, transfers or liquidation of other assets, — all usurped before filing. They can be the cash flow and profit of a business, accounts receivable, business inventory, stock options, bonuses, contingent fees, deferred payments, and countless examples of taking another’s separate (or joint) assets, while paying off or losing their own separate debt. The trick can be found in other cases involving a fiduciary duty. Probate and bankruptcy trustee handling, for example, are notorious for the legal looting of client estates and other judge-facilitated takings.10

10

See National Association for Probate Reform and Advocacy, Athena Roe, J.D., member National Association of Consumer Advocates, www.harjustice.org.

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The outcome can be staggering debt and loss of assets for the unsuspecting spouse. Sometimes, predator spouses also loaded up on personal assets like household goods, art, and guns. Mine also secretly took groceries, wine, silver, dishes, a half-million airline bonus miles, cash, a quitclaim deed for half our house, and cleaning supplies) secretly stashing things at the office, Mom’s house and a new abode. Always the judge-husbands lined up their attorneys and accountants for trial before their pre-filing takings.11 Several ex-wives were taken to appointments with estate or tax planning CPAs and lawyer/consultants to rearrange and convert the wife’s separate assets into joint marital assets. As wives, we were all gullible and trusting.12 Example four: Pre-taking the home equity. A close-runner up tactic has been to add husband #2’s name to wife #2’s home, (often she had her own home with a low mortgage and had built up separate equity) then #2 husband refinanced to pull out the equity, and it disappeared when he did. Or he applied for a Helock second mortgage (alone) and pulled out the extra credit. The proceeds went to feather a new home or purchase a new truck, or pay off old credit cards (before departing the marriage for good.) This same Wells Fargo/Helock re-fi trick has showed up amongst plotting husbands across the country. At divorce, the wife gets stuck with her now underwater-value home, while the judge ignores or minimizes the new debt, when awarding it to the innocent spouse (but without equity and with massive monthly payments.) Ladies in love, beware of second husbands who waste no time getting hands on your equity.13 The element of surprise works once to take advantage of a trusting and gullible spouse, beneficiary, or partner. Because in this type of case, there isn’t a second chance to re-acquire trust funds, or the marital equity or any other looted asset. The scoop is often done in secret, with proof and accounting records taken as well. The legal system demands this kind of victim bear the burden of proof, which means the other spouse will have an expensive reconstruction of institutional records during the discovery stage. It will all be very tedious and expensive for your attorney to re-construct the necessary “proof.” If it is an insider-judge, at trial all that expensive proof may simply get “overlooked” or otherwise avoided.

PRE-EMPTIVE NATURE Similar to the element of surprise, the technique is also pre-emptive,14 with the “taking” executed and timed before any court documents are filed, so technically at law, there is no violation of an existing court order. A standardized court order that prevents one-sided asset-taking is called a Non-Hypothecation Order.15 Accounting, explaining, rationalizing or sharing occurs much later, if at all. Relief will be tediously slow, ineffective, and will favor those who skillfully rationalize and obfuscate the facts and reasons for taking or transferring the asset. Possession of the asset works to advantage the one taking it. Often it goes thru several metamorphic changes before it disappears completely.

11

The ol’boys tend to pass around names of compliant accountants, attorneys, and private investigators for their divorces. The same names and techniques show up these judge-divorce cases, as do the names of the trial judges that get (re)assigned to preside over the insider-divorce-cases.

12

Husbands also can be on the receiving end of this trick. I had two female CEO’s of the state’s largest insurance/healthcare providers)(seven-figure salaries, plus perks) make appointments for consultations with me for secret pre-planning their respective divorces from their stay-at-home-fatherhusbands. The predator behavior seems still to come from professional status, high earnings, and a sense of entitlement, rather than gender, per se. Either sex may be a dependent spouse. I realized that one CEO paid me a $5,000 retainer to disqualify me from representing her husband in divorce, but never used my services after the first consultation.

13

The issue of foreclosure fraud and the federal taking of state mortgage law rights is covered later. See also http://www.occupy.com/article/peopleslawyer-fighting-against-foreclosure-fraud-and-courts-abuse-power

14

Anticipatory.

15

The first divorce filing in the court automatically results in the issuance of court forms with boilerplate language to the effect that neither party may sell or encumbrance any property (except in the ordinary course of business) without permission of the court. This is called a non-hypothecation order. Plug the springs tactics are both pre and post-filing.

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FIDUCIARY ELEMENT Usually, plugging the springs involves one spouse’s abuse of the fiduciary element of the marriage.16 — This is a legal concept that people legally married to each other have a special higher-level obligation than two unrelated or unmarried partners. This fiduciary duty is violated if one spouse secretly and wrongfully exploits the other. Spouses are encouraged by law to trust and take care of each other, as a legal incident of marriage. A spouse who takes advantage of the other, (for example, insists that “trust me” is a requirement for a continuing marriage — inducing a spouse to demonstrate love or loyalty to the marriage unit, by sharing assets (or human capitol, or earnings). Sharing is tangible ‘proof’ of love and commitment. Taking or converting the assets when there is a fiduciary responsibility — is more serious act of betrayal or fraud, than the same nefarious act17 taking advantage of a stranger. Judges routinely overlook both fiduciary duty and the higher standard of care. They avoid it. So a legally sophisticated greedy, plotting spouse knows he can get away with looting the marriage in court.

CHAPTER

MEANNESS

4

As a divorce attorney, I was astounded at the shear meanness and selfishness of judges and other litigators who financially abandoned their own spouse(s) and children when they filed for divorce. It’s not like judges are destitute or unable to earn a decent living. Each judge/husband knew how to manipulate the legal system for personal gain, and that kind of predatory behavior is an intuitive tendency in the profession. But the elite-thinking going on here is more than mere meanness, and represents an entitled thinking. These guys rationalize that they are justified somehow in making the little woman and their children into an impoverished nobody, not worthy of social equality at law. When combined with the mentality that divorce is a war game — the problem goes to an unmet systemic need for presiding judges to recognize, react, and control this kind of amoral opportunistic behavior. Secretly pre-planning a divorce to grab assets is an issue that begs for recognition and address by the trial judge at the first hearing even if the victim party doesn’t recognize or know to raise the issue- to undo an insider-preemptory strike. It is essential for a judge to recognize and correct this kind of wrong, lest it create an inherent economic imbalance between the parties for the rest of the case. But most judges won’t even recognize, much less act, sanction, or restore the equity. Judges actually encourage even worse behavior later in the case because this establishes a pattern of class preference without deterrent. Compliant judges who go-along with this kind of financial rape are quietly recognized in the law community, so a divorcing judge will seek out a special appointments to a known insider. In addition to the immoral aspect, it violates general public policy that courts should protect innocent and weaker classes of people from predatory and harmful behavior, especially in family cases, which as a social priority, are given special protection in law. A later review will overlook and manipulates around court rules designed for random assignment of judges.

HOW AN AMBUSH WORKS IN COURT (1) JUDICIAL COOPERATION The ambush element of plugging the springs is two-fold — first, the judge must cooperate with the aggressor/litigator (at some level) to maintain the laying-siege mentality of this kind of cases. Cooperation can be by omission, affirmative

16

From Roman law, a fiduciary has the highest character for good faith, candor, prudent money management, and trust in handing the money and property for another. Blacks Law Dictionary, 5th Ed.

17

Nefarious means also evil, despicable, immoral, reprehensible, disreputable, degenerate, infamous, or perverse behavior. Webster’s International Dictionary, 2nd edition, Meriam Webster Co., (1950).

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orders, or just failing to respond to the tactic. The mentality that aggressive hardball tactics are good lawyering is one form of cooperation. Judges participate by omission when they: Ignore control and manipulation of joint assets by one, especially when manipulation is pre-filing; Order sole control of joint assets to an aggressor/insider; Refuse a spouse direct, timely and equal access to joint assets and support; Fail to recognize overall, this early tactic makes an aggressor stronger and a weak spouse weaker throughout the litigation, unless the judge balances the inequities; Fail to recognize and weigh the fiduciary component between parties; Ignore the moral element of requiring those who can, to support their spouses and children. Second, is to keep control after the improper taking is recognized and ordered returned. Judicial follow-through should put the recovered asset/funds into the direct control of the spouse, and not in the hands of an intermediary or the clerk of court, or the judge’s friend. In each of these scenarios, the probability is high that the funds will be completely dissipated before the end of trial by expenses, offsets, and accounting problems, (over which the dependent spouse will have no control.) [That’s actually the idea behind this type of order.] The inference is the dependent trusting spouse, like a child, cannot be trusted to handle her own assets or funds, so the judge needs to be put them into the hands of a court insider for safekeeping.

(2) SPECIAL TREATMENT The small changes judges made to alter the statutory scheme (in these cases, a nibbling away of fundamental rights) leads to widespread ramifications. A judge who uses “discretion” to substitute his own unique informal practices in place of the law, actually evades the balance of fairness provided by the legislative guidelines/statutory law. A general example is: support laws are designed to provide some kind of direct access to the cash flow (such as a regular paycheck or payments) to dependent family members. Support in most states is a separate process from asset division in divorce. A judge who, as a favor to an insider, circumvents the state statute, then allows a dominantinsider party to lay siege against the other person during the trial process. The net effect of status quo18 orders, (after one side has already acted to plug the springs) means those in the fort grow weaker, while the army outside, stronger.

(3) FAILURE TO ACT One spouse running up the Helock home equity loan just never gets reviewed. In the meantime, the victim-spouse is dealing with the financial devastation a hugely increased monthly payment on the marital house and looming foreclosure. Sometimes, judges make it look like another helpful suggestion. For example, “why don’t we stipulate that the husband takes the business and the wife and children stay in the house, for the time being?” This is groundwork for more financial unbalances.19 Preemptive taking of cash flow or assets functions is a shell game, where the manipulator takes control of an asset, manipulates, devalues, then moves it around, until the borrowed cash just disappears. In really successful shell games, the opponent is left paying off the increased liability, while the other side runs off with the windfall. Pretty transparent, right? A judge should be able to quickly see who’s the victim and who’s the bad guy in these scenarios. So why do they consistently miss this issue?

18

Status quo is maintaining the existing state of affairs as of a certain date. In divorce, it is the date of the first court filing and non-hypothecation order. But the whole Latin phrase is status quo ante bellum, which is to preserve the state of affairs before the war started, or the last actual peaceable uncontested status which preceded the pending controversy. Blacks Dictionary, 5th Ed.

19

The ex-wives of judges all confessed to feeling coerced by judges who made this second kind of helpful suggestion. The most frequent judgesuggestion was to seal their files to avoid embarrassment.

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Judges have the same training, mentality and value-system as lawyers. They fight with wit and words instead of swords and flail. In a competitive arena favoring lawyers, the court subculture appreciates this win-at-all-cost mindset. Aggressive lawyering, even against one’s own wife and children, is considered good work. And no one within the system intervenes. Other lawyers refuse to get involved, leaving a judge’s spouse without adequate legal help. The profession is increasingly more interconnected and incestuous, judges evade controlling divorce tactics in cases involving other judges. This goes beyond professional courtesy. What judges are doing is not just one or a series of small favors, but a subversion of law.

CHAPTER

(4) JUDGES EVADE LEVELING THE PLAYING FIELD IN THE EARLY STAGES OF A CASE Sometimes the courtroom becomes a combat zone only after the little woman recognizes the preferential treatment her insider husband is receiving, and begins to figuratively yell and fight back.20 Whether she understands or not, she’s fighting an uphill battle for her financial existence. That’s when all those earlier sealing orders come in handy for the ol’boy team. When a presiding judge provides a favor to another judge in divorce, it allows favoritism to preempt legal process and law. It flips these cases out of law, and into a competitive sport — the game of gotcha. Most family law judges use their ‘broad discretion’ to routinely ignore parts of the legislative scheme. That legislative scheme is society’s plan (and the law) for taking apart families fairly. Used as a whole, it should provide uniformity and protection for weaker and dependent family members. A litigator mentality doesn’t fit with legislative goals, so these court battles harm families more than they help. But insiders thrive (both emotionally and financially) with this process.21 Often, a 10% offer is considered generous by attorneys for both sides and the judge.22

Lorna Wendt-Stamford Divorce Institute for Equality in Marriage The 10 % settlement offer

4

Weaker and dependent is relative though — the issue is really equality in marriage. Lorna Wendt, former wife of General Electric CEO Gary Wendt, rejected a $20 million award (10% of the $100 million amassed during their 32 year marriage). She appealed and won a 50% division of assets. She later formed the Stamford Divorce Institute for Equality in Marriage. See http://www.e-qualityinmarriage.com

If a motion is made to approve outright (or effectively) to transfer or keep ownership with the aggressor, then plugging the springs moves asset-distribution to a different position in the case. Instead of being a final order after trial on the merits, it is heard much earlier as a premature motion at the beginning of a case. Why does this matter? Because it is before discovery and valuation (is often a contested issue at trial.) It establishes a non-statutory ‘ special procedure’ court process, and unbalanced handling. Question: Why even have a litigation process, when the assets are given to one side at the beginning? Answer: It’s a show — a legal light show, designed to dazzle or intimidate the loser.

20

Personally, I was very sad and completely overwhelmed at the initial stories of ex-wives of judges when we first met. But those stories and those of hundreds of others have helped me identify common patterns. I apologize to each of you that I could not fix the unfairness that was almost universally found. Many I tried to help, but largely failed beyond exposing these patterns.

21

One helpful book is the summary sources section regarding two law school professors’ alternative theory that attorneys are the source of the problem (rather than my perspective, that it is the hidden power of judges that is the source of abusive practices.) Richard Zitrin and Carol M. Langford, The Moral Compass of the American Lawyer, Truth, Justice, Power, and Greed, Ballantine Books, (1999) is old but never out of date. This book overall is important, but see especially pp. 247-261.

22

I’ve seen the 10% figure used regularly in court negotiations — where a wealthy litigant expects a poorer or dependent opponent (usually female) to swoon over being devalued and minimized by 90% or more. The other side gets 90%, the female side receives 10%, plus females are expected to be grateful. Where is the judge while all of this gender-discounting is happening? In my case, the judge at first trial ordered a 100-0% division. The second trial under the same judge was 99.999-.001%.

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In the most effective judge abuse cases, the court will help the dominant party spend, squander, hide or dissipate important assets well in advance of final hearing, so by the time the final trial rolls around, there is nothing left to divide. Except in some cases, there may be more assets than the court can spend. In my case, the judge used the final trial to assign/award me ‘negative-value’ assets (assets with liabilities than equity). The insider party (who already controls the assets) also may have an agenda to punish or destroy the other side — even if it means spending a disproportionate amount of lawyer resources to do that. Why not? Often the insider is not paying, but trading favors, or paying at a deep discount as a matter of “professional courtesy.” If an insurance defense case, the policy amount gets divided between the insurance defense attorneys and the victim in settlement. While I was not on par with Chuck’s law experience, (he had twenty-five years judge and legal experience on me) I was the only ExWife of Judges who had legal training and experience in divorce cases. I also come from a clan that is slow to anger or take offense, but once riled, will tenaciously dig in for something morally right.

L.L. Bean The famous Maine retailer, L.L. Bean, has a traveling display case containing the skulls of two wild stags — natural opponents in the wilderness. Their bare antlers are locked in a death clasp. It’s a demonstration of mortal combat, where two adversaries locked horns and then starved to death, unable to extricate.

§

SHAMING CASES Judges anticipate that some cases will have more emotion than others. It was a common Bar myth in the 1980s when the Bar was lobbying to make all divorces no-fault under an (erroneous) theory that removal-of-fault-grounds would decrease the personal animus in family law cases. It doesn’t. No-fault set up a wildfire of divorce in America. This was before it was understood that the no-fault experiment established an inherently imbalanced economic outcome (a false assumption that avoided economic gender inequalities in earning.) Courts also set up separate ‘family courts’ where lowest-level ‘masters’ deal with so-called emotional cases. However emotional myth doesn’t hold up in fact, or also in the face of evidence that judges routinely employ shaming tactics in all kinds of cases to intimidate parties where the judge’s rulings and treatment are questioned. Judges are initiating highly emotional aspects into all kinds of cases as a means to minimize and marginalize certain classes of outsiders in court. Shaming a party is a judge tool — a personalized collateral attack on an individual’s character. It endorses and encourages attorneys to pile on a party (a scapegoat) with taunting and shaming tactics. Attorneys use this leeway to discover, disclose, and ridicule an opponent (in and out of court) with intimate personal details, twisted beyond the small element of truth. Judges call this mere “attorney argument” — ugly personalized comments, insults, and speculation about a lay opponent. It is often directed against pro se parties. Judge’s allow and encourage this kind of Officer of the Court behavior. Judges also engage — to show anger, control and silence criticism, especially against a party who questions a judge’s ruling. It doesn’t matter whether the case is fault or no-fault divorce, civil or criminal — this shaming judicial tactic stimulates attorney dirt-mongering and gutter tactics. It has no legitimate business in a court proceeding. I strongly believe people who in court are entitled to respectful treatment from every judge. If readers experience shaming, drop back and assess (a) who the players are; (b) whether or not the acts go to legal elements. Judge’s need to shame someone may be an act to cover up and silence someone. The outcomes of cases reported in this book, frequently are not decided on the merits, but on collateral issues raised where the judge overreacts and misapplies power, then has to cover over and reassert the imperial authority of the court. NPR carried a series of interviews asking the Baltimore Community to respect the ruling of Judge Williams in the Freddie Gray case, after an earlier order sparked weeks of rioting, with curfews and lock down of the city. Respect the judge’s ruling — the cry of officialdom that begs the question of what recourse do people have when the trial court ruling is illegitimately obtained? Not every ruling 217

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can be a legitimate one — because judges are human beings, wielding extra authority to influence juries, and skew case outcomes. What happens when any part of the judge’s handling is illegitimate?

CHAPTER

Shaming is a tool judges use in anger, to uphold their use of power, after question of a ruling is raised. Even respectfully. Proper objection under the rules of court. Raised as a valid, educated, focused objection. Some judges react and retaliate improperly. As a good Catholic child, I worried about sin, confession, and penance. As an adult who was shamed and frightened into fifteen years of protection and hiding during my divorce/disbarment, I suffered from judge shaming. I have come to realize that shaming is illegitimate in court — and the judge’s use of righteous indignation while hurling insults and personalized ugly speculation designed to diminish and shame me — is sound and fury, based on fear and anger — that I (or others like me) might expose their human error and misuse of law power. Shame is a weapon to silence those who have an inherent moral right to question the illegitimate use of force and law in court.23 In my case shaming tactic began in my divorce case, and moved over to the myriad of ethics cases stemming from that divorce.

4

The kind of rogue judging that uses “shame” as a litigation control technique, appears in other kinds of cases as well. In New Mexico, shaming is such a prevalent judge tactic, it has been dubbed a “Judge Hate Crime,” where, acting as a quasi-or-co prosecutor, a judge makes biased pretrial opinion-statements about a defendant. In one criminal case, the judge repeatedly and emotionally threatened a young man, “you’re going to jail for the rest of your life and you’re going to be somebody’s bitch.” She also ridiculed and accused, “you have no balls” and made a number of other sexgender insults indicative of the judge’s open hostility and bias. In the case of Matthew Scott, his first jury was hung, and the young man was re-tired and acquitted after second trial.24 Before trial, the lad was brutally insulted, genderharassed, charged, acquitted, and charged again; subjected to harassing calls at work, he was fired. The judge threats are borderline sadism. I lament not only the judge harassment, but disillusionment to this young person so early in life. Matthew’s case echoes other personal reports from around the country over two decades, how judges and prosecutors work together to misuse positions of state authority to discredit, ridicule, prejudge, and attack defendants by character insults, recklessly designed to humiliate and subjugate. This judicial ugliness is more than merely harsh or unkind. There’s a brutality and recklessness that makes understanding the how and why, a study of evil.25 We’ll visit this issue later in cases involving nuns, children, other females, also white males who are lesser-status’d than the prosecutor/judges who rule them. Because this pops up in judge-abuse cases overall, readers are alerted to learn how to watch for the element of personal shaming, to question whether or not it is proper judge conduct.26 I’ve also experienced shaming in cases involving people recognized as political conservatives (we will look at specific cases involving religious, home schoolers, gun owners and patriots) but I warn readers not to overgeneralize, as shaming is applied against nonideology defendants as well. Often it appears this collateral judge shaming technique comes from minority judges — LBGT, African American, Hispanic and female. Does it represent inadequate education and judge training? Or racial and reverse class retaliation by an immature jurist? Or something else entirely? I don’t know. In my own cases, I observed this cruelty administered by a Middle Eastern male, a Hispanic female judge, and a mature WASP male. Judicial experience seems to have no relationship. For one, it was her first trial, the other two had 25-years experience each.

23

Not to overlook the Constitutional rights at law, to equal protection, due process, civil rights, and all the Bill of Rights (stemming from the rights asserted in the Declaration of Independence.) Personally, I think moral rights precede the Constitutional, but I have spent a lot of time reflecting on the rights of conscience, and do not, after having been married to one, believe in the infallibility of judges.

24

Bernalillo County District Court, NM, Docket No. 10-CR-02197.

25

These are the same increasingly vicious characteristics found emerging in ordinary people assigned authoritarian roles in the Stanford Prison Experiment, similarly in the Milgram studies.

26

Shaming is a religious punishment in some sects, including Early American Puritan settler communities. It was a form of community punishment in lieu of incarceration. It implies an element of morality — curious because modern courts feign rejection of both organized religion and individual morality, under theories of group good. And yet here it is — judges shaming, present in court, but through the back door of institutional prejudice. Shaming in court is important because it is a judge practice that abdicates the concept of inherent dignity for all in court procedures (that flows from Constitutional equal protection rights.) And it makes judges into high priests.

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Shaming Practices Turn Judges into High Priests Shaming is an ancient religious punishment in some sects, including Early American Puritan settler communities in the Northeast. For hundreds of years, it was a form of community punishment in lieu of incarceration. It is similar, but different from excommunication and shunning (both religious disciplines). Shaming incorporates a strong moral element — curious because modern courts feign rejection of both organized religion and individual morality, under contemporary political policy theories of group good and inclusion. And yet here it is — judge shaming in court, but through the back door of institutional prejudice and self-interest. Shaming in court is important to note because it is a judicial practice that abdicates the concept of inherent dignity for all people (even for Defendants in court) that flows from Constitutional rights including Equal Protection.

Shaming is also a preferred tool of bar prosecutors and judges in attorney ethics cases, where drama, speculation and hysteria disguise the absence of facts and law. In these cases, shaming warrants extra Bar Association brownie points for style and hyperbole over substance.

POSSIBLE CORRECTION ORDERS Depending on how influential the parties are, a fair judge may react to the evil-deed-doer who plugs the springs of his family’s support. In a few notable exception cases, a judge ordered a multi-million dollar trust fund undone — and money returned from the Cayman Islands for distribution by a divorce court. Once, I saw a gastroenterologist medical doctor go to jail until he coughed up approximately $8 million he had socked away into a trust.27 He made the trust proceeds payable to his children — to keep “his family” money away from his ex-spouse. He first moved out of state, then to Belize to avoid extradition and sharing.

PAYING THE WIFE’S LEGAL FEES Once, it was reported a wife’s attorney got paid by order of the judge. But that may be an urban legend. In any regard, paying the wife’s attorney in an insider divorce set-up is an unusual result, not experienced by any of the ex-wives of judges. But when you are trying to figure out what happened — what caused you to become poor overnight, (by 90% is not unusual drop in monthly income for the ex-wives of judges) check to see if the springs have been plugged through court. Once a spring is plugged, you can expect the other side to ‘lay siege’ — to delay and pile one, where time will cause harms that can never be fully restored. Litigation is a financial process. Judges often ignore that an insider plugging the springs means nitty-gritty impoverishment of the other side. Judicial indifference to the resulting hardship has become a national shame.

27

Dr. William Willitts, Willitts v. Willitts, 116 N.H. 829, 367 A.2d 607.

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42 SCORCHED EARTH

§

A military tactic term evolving out of the Vietnam War era is concept of a mission where chemicals and fire so devastating, the use reduces all life to ash up as far as the eye can see (up to the horizon) — this includes structures, homes, trees, vegetation, people, animals.

CHAPTER

The concept is to destroy and defoliate everything an enemy needs to sustain life. It is a tactic that led to military atrocities and national disgrace in Vietnam. Scorched earth in the courtroom means a judicially sanctioned taking so large and beyond reason as to result in punitive life-altering court orders. The desire to win at any cost is a mixture of court-culture, warrior ego, personality and testosterone. For divorce court, it may mean a well-equipped, trained soldier-spouse ambushing a civilian-outsider spouse.28 And the presiding judge issues rulings and evades address, condoning and encouraging the repression of one party. The litigator appetite to engage and destroy survives because judges tolerate and fail to control attorneys who overwhelm outsider/opponents with their litigator resources and hardball strategies. The outcome is harsh, and not according to statutory design. Judges do an end run around the function and purpose of state legislators.29 When a judge condones scorched earth, it may also involve some element of judicial vindictiveness. So the judge retaliates under the excuse of teaching the victim proper respect for the institution. No one is overseeing this intimidation, and unusually victims are afraid to protest or object. Example One: Two Ex-Wives of Judges were married to state Supreme Court judges; we were both educated, politically astute, and blew the whistle when the judges (who ended up taking over our divorce cases) made personalized comments and rulings projecting our outcomes — always stacked in favor of our judge-husbands. It was extremely ugly, in an up-close and personal way.

4

Example Two: Television’s The Good Wife, Alicia Florrick also said it: “I’ve been at this for five years now and when an prosecutor makes it personal, I know he is in trouble.” 30 Ditto for judges. Judges have the power to make orders over every aspect of person’s life, once that person falls under court jurisdiction. That’s why its so revealing to study the divorce cases of judges — divorce is the one social act where judges cannot avoid being in court. Even if the spouses agree and settle, there is a court case. How those cases receive special treatment is but the tiny tip of an iceberg. The original reason for being in court (for example, to settle a debt or find fault or dissolve a family) is lost on the battleground, because the underlying objective switches over to the objective to punish one party. Often, this is a victim of judge-law-abuse who objected. The court focus shifts to punishing the victim far beyond the parameters of the lawsuit. Punishment is a collateral issue that becomes primary. It usually involves some broad or vague judge ruling that implies some ‘contempt of court’ occurred. Often, legally sophisticated sophistry — it employs dishonest and illogical use of authority to justify a scorched earth outcome.

28

More than half of divorces involve pro-se litigants. Increasingly, all types of cases involve people who cannot afford to hire an attorney. Part of the modern divorce system, this inherent disparity begs for legislative review and overhaul.

29

It is not uncommon for judges (and the executive branch) to avoid the legislature and Congress, by ruling with fiat Orders on political social issues, which for hundreds of years, required a Constitutional Amendment.

30

Don’t laugh that I used a television series example. There’s an element of real life in TV drama shows. When I went through divorce, production studios copied my court records and television-host tapes. The initial shows in the TV Family Law series sprung from the Douglas&Douglas divorce case.

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Worse than mere legal bullying, scorched earth represents financial, physical and emotional destruction designed to last long after the case is completed. My experience with divorce cases suggests that scorched earth tactics require a decade or more of recovery time for victims. Judges duck review of scorched earth attorney tactics at all levels. Appeal judges also duck correcting this tactic by pretending judges cannot control the wealth or legal resources on each side. A second pretense is that the review court cannot review the discretion of a trial judge. But are artificial cop-outs, logically flawed, which evade the responsibility of courts to administer cases consistently with proscribed public policy, statutory law, rules, fairness and ethics. By ignoring bad behavior at appeal, trial case administration remains unbalanced and unfair. Judges pretend their individual (daily) rulings each stand alone. They avoid the inevitable outcome that one side gets scorched. It’s a building block process that evades the statutory framework and public policy by use of a judge’s discretion. For example, forty-nine states have a public policy purpose about no -fault divorce that mirrors the concept that the policy is to amicably undo the legal union of two married people, and to equally divide assets, possessions and responsibility for children. It is not possible to get divorced without using a court, so each state legislature has established public policy and procedures that state judges are suppose to follow. The asset division may be 50/50, or equitable, or equal or community or some similar language. So when one side gets scorched, it violates public policy. Regardless of money and hardball, some judge approved those scorched tactics as they happened. A judge is not a potted plant and has authority not to approve and condone bad litigator behaviors. Approval is signaled by — ll

Shopping for a compliant judge;

ll

Illogically choosing one set of facts while ignoring others;

ll

Overlooking unethical behavior by Officers of the Court;

ll

Allowing hardball tactics;

ll

Failing to provide equal resources and court access;

ll

Ignoring public policy and statutory requirements in case handling;

ll

Giving attorneys breaks while holding pro se strictly accountable.

Judicial incompetence and insider bias makes bad attorney behavior a well-rewarded and significantly growing national problem. People will pay dearly to win, (regardless of the tactics used) so judges who tolerate this kind of lawyering are like Romans — who had no moral objection to the idea that slaves (lower caste men) should fight each other to the death in the Coliseum as a form of social entertainment. Cases also become little coliseums where superior technology, disproportionate resources, endurance, and crony connections work win court cases. But only because judges allow hardball tactics to replace public policy. The system skews to the wealthy Romans, because judges bless the insiders who use win-at-all cost tactics. In war, our superior well-trained, well-equipped, professional military forces are expected to overwhelm and destroy things. Annihilate them to nothingness. War-style litigation began 1980s when divorce became commonplace at law, and divorce rates hit over 50% of American families. I believe this is a result of flawed experimentation in policy by a handful of national leaders (all WASP male) in the field of law. It is no accident that Governor Ronald Regan pushed for California to be the first state to adopt no-fault, and shortly after, divorced and married Nancy. An underlying self-interest factor.

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After 9-11, many non-military males in American embraced the form and collection of para-military gadgets. Attorneys (most skirted actual combat) embraced macho war thinking and began reading Sun Tzu.31 No-holds barred litigation tactics became the new normal in attorney court behaviors. Style over substance. Common decency was lost in many courts, replaced by arrogance and bullying. Is this appropriate in family court? Of course not, yet family law is a practice arena for litigation abuse. And attorneys make far too much ”extra” billable time under this system to voluntarily change the process to a healthier family model. That’s why we have legislatures — to think and debate about what is socially healthy and fair. Truth be known, judges routinely ignore what the legislature passes. That judicial evasion underpins the financial disaster cases in this book. Two other interests are often at work in court scorched earth cases (where a superior litigant is allowed to maliciously disseminate the other side.) In divorce, look for cases where: a. A dependent party is not represented or is under-represented; b. The dependent party challenges the ethics and illegitimate tactics used; c. The case involves a law insider;

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d. There are marital assets available to pay legal attorney fees and costs — especially when the costs may be switched over and ordered paid from the victim’s share of assets or proceeds.

4

With vastly superior legal resources and help from a networked judge, an experienced insider can leave the opposing party out-manned, out spent, out gunned, and outlawed.32 Blood is money to them.

A SECOND ENERGY AT WORK IS ANGER I was the party who was supposed to be disseminated early in my case. It was unanticipated in my divorce that I could fight back. What husband isn’t unpleasantly surprised when his formerly good wife abandons her compliant role to expose his soft-underbelly? As a good wife, I can attest that in court, fighting back can provoke a wrathful group-retaliation by the ol’boy and his team, including the judge.33 Writer/Commentator Max Boot talks about the anger factor in reference to “hatred of the enemy” that is inoculated into troops in big wars. “In small wars, tolerance, sympathy and kindness should be the keynote to our relationship with the mass of the population.”34 But he wasn’t talking about courts, but about war with Third World countries. Why would we want lesser standards against American citizens?

RECOVERY AND RE-VEGETATION An eternal optimist may find a bright side to scorched earth. Land scorched by flamethrowers, or burned up by chemicals, can be reclaimed and viable over time. A decade after the Americans left, the Vietnam countryside was re-vegetated, rebuilt, and able to sustain life. People burned in litigation may similarly recover, with new families, assets, integrity, and personal optimism. Sometimes, as with forest fires, re-growth can be more productive than in a first marital life.

31

Sun Tzu, The Art of War, (The philosophy and strategy of Early Chinese combat.) Check to see if your lawyer has this on his bookshelf. If he does, run — or not.

32

‘Outlawed’ isn’t being facetious. A number of attorneys who oppose too vigorously ended up outlawed. See Attorney Smack-Down.

33

This was notwithstanding the gut-wrenching early ambush tactics fashioned by Chuck and his team. They used physical, legal, emotional, and financial surprise attacks to ensure I would be unable to fight the loss of my business (and marriage). Of course, I always found Chuck to be charismatic that way with supporters.

34

U.S. Marine Corps Small Wars Manual, 1940, on line at http://www.marines.mil/Portals/59/Publications/FMFRP%2012-15%20%20Small%20Wars%20 Manual.pdf

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43 NUCLEAR WINTER DESTRUCTION

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On the other hand, nuclear winter describes a process intended to leave permanent destruction for the remainder of a person’s lifetime. Radioactive land cannot be repopulated because the poisoning lasts forty years or longer and prevents the land from regenerating safely. Barren as winter, the land lacks any capacity to sustain life. Here it means a virulent case outcome that destroys a defendant’s life as they previously knew it. The difference between ordinary and extreme devastation case outcomes is a factor of insider-rank and the perceived degree of threat of harm to the institution. The degree of retaliation inflicted is inversely proportional to the degree of embarrassment a court-leader fears. Nuclear winter is the ultimate in a judge’s fear-based reaction. It is where judges manipulate his discretionary power to act with vicious revenge against a perceived threat. In my case, I was considered a turn-coat. Nuclear acts are ego-based retaliation, and happen in cases when people question a judge who is manipulating law and process to concoct an unfair outcome. The outcome has almost nothing to do with the underlying case except to draw the party (or political issue) into the court’s circle of authority. It may be an intentional trap, or merely an opportunistic accident for insiders. I want to add, nuclear case outcomes are not what the protestor or a Bar attorney can accomplish alone. It requires judge help and participation. And the intention to repress and destroy the victim. Unequal process may be established at the beginning –even before a case is filed. The victim does not compel his or her own ultimate destruction by protesting bad and unfair judge rulings — because for these cases, the outcomes are predetermined — who will lose and who will win. Harsh repression is not caused by the victim, but occurs in spite of victim protests and objections. It represents tyranny, or domination by force of law over resistance. Complete legal devastation is the ultimate act of punishment by a judge. Both scorched earth and nuclear cases involve extreme judge tactics. These are not ordinary cases. Superficially, all appears legal. No attorney is going to turn aside a judge’s help nuking the opposing party, so bar and judge work together. Sometimes, it can be over an act as simple as saying “objection” and arguing to preserve a defense point for appeal. Usually it is more. It is the personal confrontation moment about a judge’s ethics and fairness that ends up with a judge having a nuclear moment of truth in court. If club members fail to respect club rules and expose or embarrass a judge, they can expect to encounter a unified reaction from all other insiders, (as well as the judge and successor crony judges in the case.) Think of it as teaching a lesson — usually against anyone who lacks proper ‘appreciation’ for using the clubhouse. For example, nuclear winter may be used for people who don’t show proper deference to private club rules. Like the mafia, country club rules permit members to injure those who break these club rules. There is evidence of gratuitous egregious mistreatment of certain litigants, by both judges and attorneys — so egregious, (examples in this book will demonstrate) a target is unable to recover over a lifetime. Targeted people for nuclear outcomes often are perceived by Insiders to be ‘inferior’ outsiders (pro se, criminal defendants, female, minority, and often those represented by weak club members, such as public defenders.) I myself was moved into this weak litigant category at my first emergency in-chambers hearing in my divorce, based on Chuck’s Insider status as a former Supreme Court judge. Inferior people are those the court systematically dehumanizes, for purposes of unequal treatment at law, followed by unusual and excessive punishment if they raise a ruckus about unfair handling. Certain violations of the insider club rules automatically invoke retaliation — especially country club rule one — loyalty to judges is paramount to everything else. The greater the perception of an internal violation, the greater the group retaliation. Retaliation involves a palatable element of gratuitous vindictiveness during the process.

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One model for analysis35 of the national phenomenon of systemic abusive judging can be found in a superlative analysis of war atrocities in WWII. The four level model of analytical deconstruction of war atrocity acts by military or quasimilitary includes: Level One: gratifying aggressive passions involving high stress and poor leadership and control, while combined with a high obedience to authority and authoritative policies. This level involves a mixture of impromptu savagery, with an attitude of acting to please a sponsor or in obedience to the policies of leadership. It an open-emotional methodology, and progressively it leads to Level Two behaviors. Several examples are the treatment of Native American Indian tribes; the Mai Lai massacre; and in a number of cases in this book. Savagery in my reference is legal savagery — most lawyers did not take a military career path, and in fact, intentionally most manipulated to avoid the draft and active service of country. Their style is a linguistic and mental savagery. Level Two: “The calculated assertion of power aimed at putting a large number of people in fear, scaring them into passivity or active compliance with an imposed orthodoxy.”

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I call this inducting or installing calculated fear. It involves “selecting people or places for destruction in order that their fate may have the maximum exemplary effect upon others.” This is one premise behind the death penalty in America — where under modern practices, killing is a detached corporate process, using technology, professionals and routine as a filter to neutralize emotion about killing subject/victims.

4

Level Three: “when people are identified and become victims not simply to gratify aggressive passions or to serve as a terrifying example to others, but because their immediate existence is perceived as a threat or stumbling block to the designs of those wanting them out of the way.” We want you to disappear is the official administrative posture. One way or another, we are going to win and you are going to go away.36 And while this may be applied against relatively weak or completely defenseless people, it also gets applied to certain others who have a real or a potential danger to their oppressors — those who occupy a certain space, or “by having demonstrated a potential for aggressive action,” … these victims “may in fact be rationally construed as a threat to those who would eliminate them.”(emphasis added) [People] who are in the way of something believed to be more important than they are.”37

35

It is called a dialectical strategy of culture analysis, with themes of irrationality and authoritarianism. George M. Kren and Leon Rappoport. The Holocaust and the Crisis of Human Behavior, Holmes and Meier publisher, London, 1980 at 22. [Hereinafter “Kren & Rappoport”.]

36

Han Frank, Governor of Poland, Helmut Krausnick, et al., Anatomy of the SS State, Walker & Co., (1968) Id. at 4.

37

There is an important fourth level in this unique deconstruction process of atrocity, covered in the last chapter.

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For me, this chilling but authentic rational deconstruction of the Holocaust fit neatly into the crevasses of my own unanswered questions. Why, God? Why me? Why are judge abuses not corrected at a higher level of the court branch? Why do appeals judges cover over? Why do chief judges commit the most egregious ethics abuses? And why me and my family? Why would members of a hardworking patriotic American family, (who practiced respect in courts all over the country) experience various types of extreme judicial abuse? Why did this happened to me? To us? Before my divorce ended, I entered a protection program that lasted five years. A series of apparently synchronistic events left me feeling unsafe, so I began a calculated re-location to New Mexico, where I lived in relative obscurity in the desert. At one point, I lost faith, and beseeched God angrily over my losses. Why me? Tell me God. I need to know. One thing about high barren desert — it is surrealistically bright, light, hot and empty — a good place to ask questions directed at outer space because there is not a lot of interference. God answered almost instantaneously, linking together in my mind — the rational progression of being born into this particular family, (did I mention Marine brothers?) my earlier life experiences that pulled me onto the path of law school, several court process that left me railing about judge abuse (about what I thought were surely isolated ‘bad apples’ on the bench.) I remembered my ABA Judge Disability Committee experience and that particular sponsor, my relocation to New Hampshire, and my first lawyer-work drafting laws for the State legislature. All leading to my introduction to Chuck, re-writing the state family law treatise, and Chuck’s help in my new career in law. Followed by his betrayal and manipulation of the court system in ways I never imagined possible. This alternative God-point-of-view was complete, simple and focused — crystal clear in a way I had never thought about before. He concluded this instantaneous review of my life with an admonishment — I did not give you all these experiences and training and education and family background to be a politician — or to be rich — or connected. Since birth, I bestowed on you an ability to think outside-the-box. And a father who said to you, say what you have to say. And a mother who encouraged individualism over conformity. And siblings who sometimes needed or gave help, but confirmed your knowledge of my goodness. My God goodness. These experiences are my sacred gifts to you. Stop thinking of them as bad. Recognize they are just learning processes and gifts. Now what are you going to do next? I realized then I just had to get out of my own way and trust God. It’s been a journey — nothing I ever would have picked. Many days contain a surprise and more gifts. The people I meet who have been both courageous and heroic. Who are acting out of the same instincts and values, despite terrible financial and emotional battering and personal diminishment in court. I also discovered books — usually at thrift stores — including the one about looking at the outside dimensions of the most horrific human behavior on earth. I found an extraordinary community college course named “Understanding Evil” that provided invaluable background. I have been provided a longitudal framework to look at progressive tactics and policies in other branches of government, as comparison. There are striking similarities about what is happening in government leaders, not so much focused on individuals, but on group practices, especially within that 1950s and 60s group that is in full court press in some cases now a half-century later.

EXTREME TACTICS Both nuclear winter and the next category (Winner-Take-All cases) involve extreme judge tactics. This kind of case management is applied sparingly — because of the great cost involved, and the risk of public fallout. There is risk to the judge because public trust for the judiciary is based on perception. So methods of punishing people (who ignore or fail to demonstrate proper deference to inner circle judges) needs to appear legal. This also means marginalizing a persistent or noisy objector as a troublemaker. If judicial retaliation appears illegal, it could attract public awareness. Whether the judge or the opposing attorney instigates extreme retaliatory treatment, they work together to insure the outsider suffers maximum consequences. Superficially it will appear legal. No attorney is going to turn aside a judge’s help in nuking the opposing party. The more serious an outsider transgression, the more serious the retaliation. The judge becomes very personally involved. Question:

What invokes a nuclear reaction from a judge?

Answer:

A perceived threat to his authority and reputation.

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An attorney (or party) who (a) makes a written objection in the record about the judge’s preferential treatment, (b) questions the judge personally about connections or apparent bias, or (c) objects to the lack of rules and disparate treatment, (d) ask a judge to recuse — can expect to draw this retaliation into play. Sometimes, it is as simple as saying “objection” to preserve a defense or point for appeal. Other kinds of acts may set off a judge, but it is the personal confrontation about ethics and fairness that ends up with a judge having a nuclear moment of truth in the courtroom.

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RUN AWAY CASES

4

When one side uses extreme hardball tactics (with the judge’s tacit approval) an outsider is expected to cower, submit, or quit. If they don’t and (heaven’s forbid!) instead launch a defense or counter attack)38 then litigation costs soar for everyone. Under this hard-ball system, if an non-insider fights back, club integrity requires the judge to suppress the non-insider. This kind of cases begs for maturity in judicial management, but because the judge has become personally involved, it becomes a run-away attorney case with excessive filings, delays, and legal expenses designed to overwhelm the non-insider. For lawyers, it represents a windfall both financially and emotionally. And named this type of case the Serengeti take-down. My experience is over time, the lawyers become frenzied and use any minutia or ancient detail about a opponent’s personal life to engage in no-holds-barred attacks. Whatever it takes to destroy the other side.39 The process goes far beyond mere winning, and the parameters of the case. It develops elements that are vindictive and threatening — by both judge and attorneys. The shift in process — the unrestrained warfare of attorneys — interjects an element of personal threat against the outsider. If a judge fails to control and counterbalance the veiled threats and implications, the case escalates to legal violence. It’s a traumatizing life-force best understood by actually experiencing the process — a target will feel it, long before being able to deconstruct it. Specific examples are detailed in later chapters.

LEGAL VIOLENCE Courtroom violence is largely with words. There is a physical element to the victim,40 but attorneys rarely fight with anything except language. (Remember? Most have not served in the military and are mentally inclined to fight (but often, not physically prepared.) Think of them as geeks on hormones. Attorneys file motions for the court to grant them all kinds of takings, intrusive acts, and inconvenience (to cause embarrassment.) But their overall game is to mindfuck. By nature, their shady propensities usually stop short of actual violence and physical harm (except if they can get the judge to arrest their opponent. That’s like winning a jackpot.) They usually avoid actual physical violence (unless through a hired third person) unless they are caught in the process of doing an illegal act. Then fear of exposure and loss of face can lead to physical violence without restraint. The next chapter contains several examples, ranging from assault to murder. Fear is a powerful energizer that takes over the mental process, so all that is left is physical action. For example, in a criminal prosecution, if a pro se defendant — (especially one perceived by the ‘insiders’ to be legally uneducated, unsophisticated or poor) — fires his court-appointed public defender, and then tries to raise a collateral claim of prosecutorial misconduct.41 The pro se defendant has majorly violated the country club rules of court. He failed to show proper respect to the club because he fired an unprepared member who wanted him to take a plea deal. And, the situation left the court-club exposed to someone who is not deferential to the insider rules. Loyalty requires the judge to initiate judicial acts to defend the lawyers. So if for example, the defendant alleges a Brady or other ethics violation, or says there is prosecutor misconduct that violates the U.S. Constitution, then its falls to the judge whether to squash the defendant and protect the attorneys, or not. 38

I once produced dumpster trash, which impeached my husband’s sworn claims and statements. My harvested trash became the focus of intense judge-manipulation and retaliatory orders (against me) because it corroborated that some (former) judges do lie in court. I was popularly recognized as “that trash lady” for some time afterwards.

39

Like military campaigns, this works best with inexperienced young attorneys enlisted to do the actual fighting.

40

Legal Abuse Syndrome

41

This example is a cross-over of actual cases. I said no cases are made up, but this example is a combination of elements from two actual cases.

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Courts Generally Don’t ‘Do’ the Constitution Judges and lawyers in law school are taught second-hand cases that ‘do’ the Constitution. They are taught to rely on re-hash, not on the original source document.

Depending on the basis of the pro se claim, the case may enter the scorched earth zone first (to see if the outsider will become court-compliant.) It becomes imperative for the “integrity” of the judge/court/state — authority that the prosecutorial side of the aisle mount a larger, more expensive case because of this uppity defendant and his Constitutional claim. (This is where the judge creates a self-interested role that taints the rest of the case handling.) If scorched earth doesn’t have the desired effect of knocking the defendant out of the case, the court can initiate the move to nuclear. To win nuclear war takes money and connections, (not a pocket Constitution.) So the State (represented by the judge and insiders working together) must deploy greater weaponry and subterfuge. (Think of a missile, as opposed to a sidearm). Comparatively, the State budget and ability to focus staff, investigators, and even clerical help, all work with the judge to overwhelm an uppity opponent of limited means. At the end of the day, the state and judge go home well paid, but defendants face a mountain of legal bills, costs and lost income, regardless of the outcome. On a private basis, the disparity between insider and non-insider trials sometimes can be seen in those cases involving lawyers with their own law firms or judges and lawyers who trade out legal services without actually paying out-ofpocket. I routinely went to divorce hearings facing off against six or seven lawyers — all gratis representation of my husband because of his coup d’état the first days of litigation. Virtually every ex-wife-of-judges experienced this insidercourtesy that is one hallmark of no-holds barred cases. Other nuclear cases may involve the deep pockets of large multi-national corporations, universities, petroleum, insurance, tobacco, chemical or pharmaceutical companies — the corporation versus the individual average-personvictim. These are the general types of cases that can be turned into ultimate destruction cases, where life-altering consequences get ordered, which forever alter a defendant’s fortune, reputation, freedom or spirit. Whether a defendant can rebuild or regenerate is a matter of time, degree and faith. But the outcome follows a different agenda than the reason for the litigation. The tactics are generated both by Insiders and the judge. Linda Kennedy’s Holodeck isn’t about two parties duke-ing against each other in court. It’s an alternative reality where both sides are destined to lose and the establishment is the only winner.

MY EXPERIENCE IN EXTREME JUDGE RETALIATION I suspect my treatment in court is reserved for people who lack automatic, extreme deference. It is not about law. It’s about the judge’s ego and inflicting punishment. The judge expects everyone to just accept what he says is true, regardless of what you know to be true. Because each of the ex-wives of a judge was intimately aware that all judges are mere mortal men, several of us with legal training became assured enough to say — what you are doing is wrong, and we know it. In my case, I wrote the state family law treatise for courts and attorneys.42 I had drafted state laws for the legislature. I just had a better law background than other wives in the group. Even so, it took awhile for me to start picking out major differences between written laws and what the judge was ordering in my case.

42

New Hampshire Practice Series, Family Law, 2d Ed. 1992-1999, Butterworth, Thompson, Lexis Legal Publishers.

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Personally, with the growing realization that everything I had was wrongly taken away, what did I have to lose? Nothing. At the time, it wasn’t a conscious or deliberate decision, and I didn’t recognize that my reputation and life were at stake — whistle blowing for me was simply a moral progression toward righting an obvious judge-wrong. It didn’t occur to me not to trust in my faith or myself.

THE ELEMENT OF VINDICTIVE PAY-BACK

CHAPTER

The bottom line is to force a so-called ‘disrespectful litigant’ (one who tries to question/object to even a single act of biased and bad behavior) to accept what the judge says, finds, or orders, without objection. If judges don’t see an improved ‘respect’ (that means no-questions or objections allowed43) then the next stage is to institute a series of loses against that party. Generally that means some kind of financial loss. (If the objecting person is a lawyer, it may mean referral for a conduct violation — a form of professional discrediting.) It the criticism still continues, the Bar effort will begin a campaign to expel the attorney from the profession. (Sometimes, it means a loss of freedom, as attorneys have been jailed indefinitely for criticism of judges.)44 Admittedly, these are rare stubborn individuals, sometimes with a developed personal conscience, who persist in trying to making a logical record or to expose corruption. In my divorce case, the vindictive nuclear element came out also in a series of Bar complaints — a record number filed within a short period of time, most bearing the indicia of Chuck’s writing style and connections. Whether re-directing complaints (against him over to me) or redirecting complaints about our old partnership, or new allegations arising from Chuck’s claims against my client, (for my lawyer fees) I spent more than five years defending myself from professional charges and Bar discipline. Under the Judge/Bar attorney disciplinary process,45 the charges against me were long, vague, non-specific narratives, with some a small truth/fact, drowned in a sea of distortions and summary conclusions. Eventually, I was disbarred. By then I was in hiding out-of-state, had entered a protection program, and daily was fearful of being murdered. Being alive today is a daily blessing.

4

But make no mistake that the judge’s creative divorce process, (and its progeny in the bar-complaint system) was the genesis of my own nuclear experience. Nuclear means destroying the ability to reforest, re-vegetate, and recover. A total destruction of my life as I knew it.

Marginalizing the Loser Sometimes judge retaliation will continue after the end of the case, to insure a critic is publicly discredited. This is an integral part of a nuclear pattern. Like stalking, but with litigation. It is of high importance (for the judges involved and the Country Club as a whole) that insider critics be marginalized. If a judge is exonerated, (or his conduct complaints are hidden under rules of secrecy) it is not enough punishment for the Club to let the critic continue to call for reform and organizational change. Judges want pay-back.

43

No objection allowed means no grounds in the record for appeal — this tactic keeps the judge from being reviewed on appeal.

44

Examples include American Association of Women, Leslie Dutton Full Disclosure Network, including coverage of the extended incarceration of California Attorney Richard Fine, see www.fulldisclosure.net

45

In another legislative testimony in 1999, Supreme Court Clerk of Court Howard Zibel compared New Hampshire attorney conduct discipline with the Court’s handling of judge misconduct. New Hampshire was the most harsh (some say zealous) in the country for attorneys. (For judges, it is among the most lenient.) The Bar doesn’t scrutinize or discipline judges with the same fervor. I think the two work hand-in-hand, and to silence attorneys from reporting judge bad behavior.

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I was surprised that the chief administrative judge in New Hampshire took to childishly name-calling the ex-wives and other citizens who testified against him at his confirmation hearing.46 He ridiculed people who showed up to testify at the State Capitol (against his appointment) as losers and vindictive and people who lost – suggesting that criticism against his appointment to the state Supreme Court was unworthy of response. Attorney Elena Sassower experienced this in a much harsher arrest/solitary treatment, when she showed up at a public Senate Confirmation hearing to testify. Florida’s Judge McMillan resigned after his election, in the face of death threats against his family. He ran for judge against a sitting judge and won. Judge’s don’t like opposition or criticism, and retaliate when it happens.

A LEGITIMATE GRIEVANCE Certainly, when his courtroom was stacked with crony favoritism (as it was), yes many so-called little people lost big. Insiders won, and outsiders consistently didn’t. But the language of ‘losers’ categorically suggests a judicial mindset that considers those who lose to be a lower class of people not meriting equal treatment. And I found this is often the mindset of manipulative judges — insiders are winners worthy of favors; outsiders are expected to lose, while showing (him) proper respect. That attitude actually has both Puritan and Ecclesiastical origins — witches for example, were expected to thank the executioner. Proper etiquette for the condemned was to forgive the executioner and bless the King. You could still be religiously redeemed if you behaved properly — still dead, mind you, but redeemed in heaven. As a litigation technique, the difference between ordinary cases, scorched earth cases and nuclear winter cases is the degree of personalized insults and retaliation the judge initiates and allows against the person predestine to lose. These cases do not (as a rule) come about without Insider litigants, but they are not successful without compliant Insider Judges. This stuff doesn’t happen if the judge works straight-up with honest respect for everyone. The reason club members get to use scorched earth or nuclear winter tactics is that the club hierarchy appreciates the value of being able to use the legal process to get revenge in cases they have an interest. Or often, it is allowed for a prosecutor to win a criminal conviction against a social nobody as a professional career achievement and stepping stone to greater office. It’s insider treat, handed out by the trial judge. So Judges and lawyers tolerate the abuse and don’t report it, because some day, they may need to use it. So how a judge handles the audacity of a party who questions the judge’s relationships or morals or ethics in a case involving insiders — is the personal decision of judges. Attorney-players alone can’t do a nuclear winter assault — nuclear requires judicial involvement. And once the judge moves over to this mode of decision-making, it doesn’t take any time for the other side to figure out they can’t lose in this courtroom.47 Orders, which effectively destroy one side — (through incarceration, business-takeover, freezing assets, extreme taking of wealth and property, alleged contempt and other serious life-altering consequences) — all involve tag-team efforts of the judge and lawyers.

R&R The element, which sets apart nuclear winter outcome from all other cases is the added element of retaliation and revenge. It is, I believe, reserved for club critics and objectors who break the club secret rule, by attempting to expose 46

The chief administrative judge later was nominated by the Governor, with approval of the N.H. Executive Counsel to appointment to the Supreme Court in 2000, when vacancies occurred following the legislative investigation of the judges. About five dozens ordinary citizens with personal experience of his courtroom bias, showed up to testify against the appointment. Slightly fewer number of people spoke in favor of his promotion. Those favoring the promotion were friends, cronies, and special appointees in the court system (but not one party from any case.) The judge mocked people who opposed his appointment. He called them ‘losers’. He was confirmed and sworn in the same day, and remained as a highest-level statecourt judge until 2005, when he resigned to work in part with a newly founded court system in Iraq. His daughter has since replaced him as a middle level administrative chief judge.

47

Chuck once told the press that he won 400 motions in our divorce and I won none. That wasn’t exactly true, but it was close. There was no way either judge in our case would let me ‘win’ even a tiny victory. It had nothing to do with my lawyering skills or intellectual processes — and everything to do with insider handling. But it’s hard to know that in the midst of war.

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judge favoritism and cronyism. Simply put, it is whistle blowing on judges and ol’boys. Nuclear handling is a form of punishment and discrediting, when ordinary silencing techniques of judges don’t work. If nuclear is not effective, then the next stage is to act publicly to discredit the critic. The Club allow members to inflict harm and even permanent injury against those who violate the secret code of silence, or who fail to show unquestioning loyalty to judges, or who are perceived to lack respect for judges.)48 It threatens the whole system. Inflicting unnecessary harm, vindictiveness, and other amoral behaviors are not considered reprehensible here. The group considers itself elite and entitled to inflict punishment in and out of court. No one is physically beating another, and the weapons are pseudo-intellectual, but members are allowed to psychologically and emotionally batter others in court and through the legal process. In fact, punishing excesses are often admired by other members. This code has replaced the other allegiance (the one where as attorneys, we swore allegiance to God and the Constitution.) It’s similar to not showing proper respect to a mafia don — only here, the boss is a judge.

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MEDIA

4

The extreme techniques of scorched earth and nuclear winter are used infrequently. These are not average court cases, and they may reach national and international media coverage. Since the courts actively hide information about these cases, in the past the Associated Press has exposed issues, while other print and media simply avoid reporting. If reported, senior editors make the decision to omit the insider cronyism aspects, or spin it into a trite and obnoxious personal conflict between parties. As ever, British newspapers win on best coverage, while most nationally rated U.S. newspapers ignore and actively suppress reporter’s stories about crony court criticism.49 Publicity-wise for the court, nuclear winter cases tend to be messy cases involving unwanted publicity.50 But is the best way to punish and remove those, including attorneys, who ignore or fail to affect proper deference to a court making an elaborate display out of fairness while ruling to let an insider win the case. Outsides are expected to follow club rules, show deference, and take a beating if necessary without overt or strenuous objection. Non-insiders are expected to show deference and respect to the court and the insider members. The integrity of the entire legal system is pinned to upholding the integrity of a single member. To challenge the integrity of a single judge, is to challenge the integrity of the whole honor system. Right or wrong, good or bad is not the issue — in court, it is a matter of upholding a class honor code. What begins in court as a form of coercion, or a way of persuading a stubborn outside opponent to abandon a defense, becomes the risk of collective judicial embarrassment over a system riddled with cronyism.

HONOR CODE COLLAPSE Other self-regulated institutions have professed to an internal “honor code” as proof that the public is protected against internal self-dealing and abuses of institutional power. Self-regulation and the honor code means the converse of public accountability — and the institution will continue to avoid public oversight.

48

The National Forum on Judicial Accountability (NFOJA) was formed by lawyers experiencing judicial retaliation for whistle blowing on judges. Zena Crenshaw-Logal has worked for two decades for Congressional oversight of the courts, especially regarding court and bar retaliatory practices, including First Amendment violations of the rights of lawyers. See http://www.openscotus.com

49

Print media with a reputation for reporting court cronyism include the New Orleans Times-Picayune, the London Times, the Connecticut Hartford Courant and the Associated Press. Those whose top-levels executives actively suppress stories protecting judge from allegations of bias and abuse include the Washington Post, the Boston Globe, and New Hampshire’s Union Leader. Reuters seems to fall in the latter category.

50

When the New Hampshire Supreme Court underwent a widely televised legislative impeachment investigation in 2000, they hired an NPR show host as their public relations/crisis communications specialist. Because courts are internally controlled without public oversight, all negative publicity is tightly controlled and media leaks can rock public confidence in the court system.

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44 WINNER TAKE ALL CASES

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I recognized it years before I experienced it. I sometimes was approached by individuals whose cases had been tried many years before, and they still felt there was an unfair, even ruinous result, because of a biased judge. They continued to live with the bad outcome, and daily experienced it’s impact financially, as well as emotionally and socially. They hurt long after the distance that comes from a normal human healing process should have taken effect. People wanted to know what they could do about it. And what I could do about it. Like being imprisoned wrongly, an innocent person often cannot escape the injustice of their case. In their minds, there is no repair, absent setting the case to right and punishing the judge. It also causes PTSD — legal trauma from which people are often unable to recover. Increasingly, I see excessively bad case outcomes outside of the divorce realm. Most are Scorched earth. A few are Nuclear Winter. My cases were a combination — Nuclear Winter with Winner Take All. Multiple outcomes where an individual is intentionally targeted by a judge. There is no provision in law for this kind of ruling, so judges have to pervert contempt and discretionary powers to achieve these three extraordinary outcomes. Judges who initiate unusual and non-statutory relief, (favoring one side, hammering the other) may not be the norm, but it happens so often in all courts, that it’s helpful to expose and deconstruct patterns of how this works. The judge acts involved are capricious. Overall, their orders contain an element of excessive legal force over a party.

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44 A litigation vortex is when one case is used to entrap a party into a series of other legal activities and cases — chasing the pursuit of ‘justice’ when actually in each case, the victim is forever predisposed to unfairly lose.51

EXAMPLES:

One trial judge wrote in her final order that her orders were “non-appeal-able,” which of course, is outside her pay-grade. Judges frequently write orders with personal comments (another unicorn) that are derogatory, suggesting the losing party is criminal, crazy, or corrupt.52 A final order, which requires husband to pay wife’s future legal bills, in the event there is ever any dispute between them.53 A final order of perpetual alimony for an able-bodied spouse, even decades after divorce. See below for the Hildebrand case example of the Sno-Bunny ski instructor, receiving generous alimony long after the kids are gone. Still other judges initiate special kinds of relief that is arbitrary, capricious, or plain vindictive.

This genre of cases may contain dozens or even hundreds of manipulations, right up to the final order. Outcomes are unnecessarily devastating to one side, and create an exponential windfall to the other.

51

A disturbing Netflix series details the True Story of Steven Avery, Making a Murderer — Eighteen Years Lost, where prosecutorial targeting based on class is clearly identifiable. There are other mismanagement cases (analyzed more in the Trial Chapter) demonstrating how prosecutorial favoritism and media mismanagement routinely operate prevent a fair trial.

52

Virginia whistleblower Linda Kennedy — coined the phrase Double-B, Triple-C Play stands for busy and broke, criminal, crazy or corrupt — all allegations routinely raised in this type of case.

53

Hildebrand v. Hildebrand, Claremont, NH Sullivan County Docket # 83-M-0208.

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Judges who enable ‘retaliatory litigation’ outcomes, in my opinion, fail to run a fair courtroom. Their orders are disproportional and personal. If you see this kind of handling, move quickly and often to remove the judge. The state purpose for divorce is to dissolve families equally without causing undue harm to either side. Most states provide for 50/50, equal or similar property distribution. Some are community property. So cases where the net bottom line ratio is closer to 100/0, that ratio indicates the de facto judicial usurpation of the legislative plan and system for dissolving family units. A judge who approves or orders one-sided outcomes, or who orders punitive winner-takeall results, is effectively setting aside public policy and inserting himself and his own personal interests into the case. Divorce cases with scorched earth results (or worse) demonstrate the judge’s failure to safeguard a primary legislative purpose of divorce. One case that was disturbing was a Claremont marital master’s post-control over a divorce case twenty years after the divorce. It had been one of the master’s first cases he ever heard, and I wondered if he had some undisclosed involvement with the wife. The orders were that one-sided, harsh, and extraordinary in New Hampshire case law.

CHAPTER

For example, he ordered a very high rate of alimony — permanently — for an able-bodied woman, even after the children graduated from college. (The children were early-school age at the time of divorce.) The Master simply would not allow the post-divorce case to be reassigned, and had dealt extremely harshly with the formerhusband.54 The Master early on wrote that the husband-doctor would always have to pay the former wife’s legal costs for any post-divorce action, and the master was hammering this doctor, who sought to limit his alimony payment after he remarried. I analyzed this case from many angles, and it didn’t make sense (unless the judge was somehow improperly involved with the former wife.) At the same time, most judges had switched over, to only ordering rehabilitative alimony for wives (three year limits on alimony and no automatic right to renewal.) When I had lunch with a Claremont attorney, I mentioned the case, and Attorney Bob Morgan laughed out loud. He said everyone in the Claremont court system knew the marital master had it in for the husband. No attorney who knew about it would take the husband’s case, because the master was so biased.

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45 EQUALITY OF ARMS AND OTHER FAIRNESS DOCTRINES

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A European concept from the International Court of The Hague is that fairness in law requires both sides in a case to be equally armed with financial and legal resources. This is the duty of the presiding judge. A court is permitted to take notice and issue orders to provide equal resources to insure justice, especially in divorce cases or other cases involving familial and dependency rights requiring the protection of society. European law (and Napoleonic Code) operate differently, including payment of attorney fees — before, during and after trial, which is why the courts there provide a wealthy spouse to pay retainers and fees for a dependent one. Winning cases in America is about money. Nuclear loss is about extreme personal retaliation. Winner-take-all economic taking/losses are about teaching a lesson. I believe each of these flies in the face of statutory constraints and public policy, and elevates judicial tyranny over law. So far, I know of no case that has had a successful showdown with judge abuse, but the conflict issue is virtually unrecognized by lawmakers at state and federal levels.

54

Id. About the same time this was happening, Marital Master Stephanie Nute was ordering termination of permanent alimony and limited alimony because it wasn’t rehabilitative. She was also infamous for an order of $5 monthly child support. The inconsistency between financial awards in family law cases was mind-boggling, caused by capricious and inconsistent judging methods across the state. Of course, the public would never see the statistics, because there was no way to systematically research and compare primary data.

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§45 Equality of Arms and Other Fairness Doctrines

Only yesterday, I had a call from a man across the country who lives an exemplary life, but gets involved with a number of distressed people, as an extension of his living faith. This includes several defendants in court — both civil and criminal. He was shocked at what he has been observing in court. He wanted my opinion about changes in law, and along the way, he opined that attorneys should be precluded from being elected to the legislature and Congress, as a conflict of interest with their present Bar/Judge allegiance. We talked about whether the Conflict of Interest prevents attorney/legislators from serving two masters — the Constitution and the Unified Court. Since I ran smack dab into that wall eighteen years ago and was disbarred, his new idea (for him) was old news to me. The flow of money from public and individual coffers by judges to attorneys makes reform in the Bar system economically unlikely as a ‘volunteer’ reform. Fifty years ago, judges established a monopolistic patronage system. After a half century, their power is unfettered to manipulate and bestow lucrative financial gifts, tokens, and favors on court players. I see free enterprise as one fundamental answer. It’s American; it’s competitive; and it would provide choices for the shabby insider ‘justice’ citizens are receive, often with an enormous run-up and inflation in attorney billing. Court insiders know how a judge can extend litigation years longer than necessary, to generate more and more attorney fees. In some cases, the parties won’t break even. Yet each side needs money and resources to try their case — in order to win the money at stake. This Ponzi scheme goes much more successfully if the weaker party is made weaker by depriving her of money at the start, and along the way, with a final deprivation of assets at the end of the trial process. That was my court experience — twice. I’ve spent a long time thinking and deconstructing how that can happen — and am no longer surprised when strangers call. Ol’boys who win often want to take it all. Every asset. This is accomplished in several ways that require the compliance and assent of the presiding judge. Unwritten judge rules include: 1. Do not equalize the legal resources of each party. 2. Do not provide the weaker party with necessary funds for lawyers and experts and forensic development of evidence. Make her spend down her resources, and then borrow more to stay in the game — with the lure of a fair trial, a fair process, because it says so at law. 3. In the event the weaker party acquires assets at the close of trial, she can be relieved of those with more orders to pass-through her award (for payments of judge created services and other bills and costs) or to ‘refund’ or ‘impute’ winnings to the other party. 4. Show no mercy — this is about winning it all for members.

THIS IS ALL CREATIVE JUDGING Adjusting final orders, making new law ideas to take or offset, initiating punishment penalties. I was not aware of the range of insidious orders that could work around statutory law, until I heard dozens of people testify against a judge at his confirmation hearing at the State Capitol. Those testifying against the appointment were people who had appeared before him in court. Those testifying for him were other insiders. Both sides described ‘creative orders’ that fell outside the boundaries of judge power and statutory law. I also heard testimony from bar cronies — glowing praises about what a good friend he was to them at court, with examples of his ‘generous’ nature. They received lucrative referrals from him. This judge didn’t sit much on cases, but when he did, he initiated progressive generosity, gave friends and relatives work, and made sure they all were well paid early and often.

PAYING THE PLAYERS AND FEEDING THE SHARKS How a judge handles and makes appointment or extensions of time or other favors are subtle financial influences that often work to increase lawyer revenues as a hidden agenda item.

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Chapter Four — Financial Tricks

Lawyer and expert fees and appointments are manipulated by judges. They represent assured payment. Even a State cost may be shifted to one or another parties later, but the lawyers are always guaranteed payment. Who the judge picks to work these cases represents a financial favor, with appointments going to members deserving financial rewards or favors, so there is often a large suck-up factor. Appointments may represent traded favors, a helping hand based on club influence, or ad hoc off an “approved court list.” Which lawyers are judges willing to appoint/fund? Who the court-approved-list includes or excludes: In criminal and termination of parental rights, probate, and a variety of other situations, the ‘constitutionally ‘free’ defense counsel’ selection is only from those attorneys vetted by the court, then personally picked by the judge. If you select another attorney and request payment by the state, the list, (whether it exists or not), is the excuse not to appoint. All across the country, who is on the list (or not) is a matter of club influence. Well-qualified experienced attorneys with outside political leanings are left off. Those with a reputation for zealously fighting for parent rights are off. Lawyers who have filed judicial conduct complaints about judges have been removed.

CHAPTER

Those that appeal judge rulings no longer get appointments. However, here is a list of friends-of-the-court that received court appointments for lucrative cases or where a particular outcome was important for another insider. In my experience, they include: Cronies and best friends55 Racquetball, basketball, and ice hockey team mates Law school and college classmates

4

Social friends, primarily in law Deferential attorneys who appear often in court Criminal attorneys willing coerce plea agreements, (avoiding the expense of trial and the hassle of appeal) Generally speaking, public defenders are not power players (although they might be deferential.) The path to power, promotions and connections that count in the State Bar(s) is by linkage to prosecutors at the Office of the Attorney General. But judges make lots of attorney and other appointments in all kinds of cases. My experience was in low-status’d child-protective cases. Children who are snatched by the state for protective custody are less likely to be from highpowered VIP families (generally capable of making big waves, if unhappy with the state.) But non-insider defendant families can expect their case will be handed over to a club-appointee, who helps the state case operate smoothly (by not making waves in court.) The unnoticed factor in this category of cases is the denial of fundamental (Constitutional) parental rights. That’s a inherent fundamental rights conflict between the snatch/protection law and the Constitution, but even defense counsel rarely will argue or take a stand against the state position, or assert a parent’s right to raise their own children.56 Think of these ‘free’ appointees as not unlike palliative caregivers–who provide grief counseling, but usually will not fight for patient rights. But in these kinds of cases, the judge almost always defer to state prosecutors. Right up to the doorway of the courthouse.

55

Two New Hampshire attorneys, Malcolm McNeill and John Broderick, boldly touted their best-friend status. Attorney McNeill claimed his status with JNad, while Attorney Broderick touted his BFF status to Governor Stephen Merrill.

56

In New Mexico, there is a special court/mediation program for called the Children’s Court Mediation Program, I studied and trained for months and observed this same insider/appointment problem (that existed two decades before in New Hampshire courts.) It’s not that the family’s courtappointed attorneys were compliant per se, but they operated within the lines of a tired ol’court track that routinely offends parental rights, doesn’t think long about removing children, makes mistakes, and generally avoids conflict with the state attorney/prosecutors. They also avoid challenge of unconstitutional State practices.

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§45 Equality of Arms and Other Fairness Doctrines

Parents may ask for their own choice of private attorney — to be paid from state funds, but judge’s manipulate to keep control of the patronage system. And families find they must accept the attorney chosen by the judge. Court appointments routinely go to lawyers aligned to the judge, who in turn is aligned to the state. Appointment as defense counsel for the parent or child means tacit cooperation to play nicely in court. This often means to avoid objection to the state plan for the child and avoid asserting defenses involving a constitutional challenge. Zealous defense is not appreciated, so zealous attorneys will not be appointed to state paid cases. Judicial favors and appointments are the currency of the court. Judges routinely block and deny appointments of an ‘outsider’ attorney with a reputation of too zealously defending clients, or the attorney who insists on asserting a client’s fundamental constitutional rights. Attorneys known for going to trial on the merits, instead of making settlement agreements with state agencies and prosecutors, need not apply. Lawyers not willing to trade in the court’s currency are rarely if ever appointed. The official rationale is that trials cost the State money. Independent thinking attorneys find they cannot get their names posted to the court appointment list or if listed, will rarely or never are selected. This is part of the sub-culture of the court. The court pays appointees of the court with dedicated state and bar funds, while the ‘loser’ party privately pays their own legal expenses. Example One: I referenced this same Nashua toddler case (in the section on clerk of court cattle-calls) but that case overlaps as a financial trick. The same list-lawyers appear over and over in multiple cases. My clients, the paternal grandparents57 had custody of the four-year old (who was two years earlier ‘found’ by the court to be sexually abused by mother’s boyfriend.) The paternal grandparents hired me privately to protect their grandchild. I represented their interest. For years I had been a Guardian ad Litem (GAL) for children in court. The seven other lawyers in this case were all state-paid or state-salaried; they were connubial together, and already had been through many cases together in differing roles.58 My very young associate-in-training, eyeing the seven attorneys having coffee in the district court’s inner sanctum, whispered to me “I can get them to like you.” She wanted to be a part of their coffee-klatch. “That’s not part of our job.” We were there for the client — and that interest was different by far from the plan of the lawyers appointed, supported, and promoted in the state child abuse system. The state ‘network’ simply hadn’t done the job of investigating, reporting, and follow-up for protection of this child. (The judge later had a private hearing and said that the state had been unable to meet the state duty, then he ordered state payment of part of my private attorney fees.) Those lawyers spent a lot of state money on one defendant — but in this case, the grandparents privately shouldered the state’s burden of investigating and proving the events and patterns of abuse to keep a preschooler safe. Another technique for feeding the sharks59 is when a judge keeps postponing trial. For years. I’ve been in cases where a last-minute trial postponement is indefinite. Delays are ordered far exceeding prudent trial management, but they provides an endless run-up of attorney bills, sometimes in gross disproportion to the value of the case overall. Watch these cases closely, as the judge may initiate some surprise fee-shifting at the end, to make the loser/outsider/pro se victim, pay attorney fees for all the bar attorneys.60 57

In re Shayna D., Nashua District Court, 94-0013, 94-0014.

58

Look for a pattern of changing roles in court appointments of compliant attorneys — one case they may be a GAL, another the child’s attorney, another an evaluator or expert. Chameleon role changes but the consistent factor is the special appointment of the same limited group of lawyers who are trusted by the judge to understand the underlying state agenda.

59

Defined as creating excessive attorney fees for extended or unnecessary and inappropriate litigation.

60

Fee shifting like this goes against the American rule, where each side in litigation pays their own attorney costs. So the judge will stretch the law to encompass some contempt or ethics or wrongdoing ‘rationale’ to moves the subject matter over to Star Chambers handling, which generally ‘allows’ for a Judge to fine the losing party the other side’s litigation expenses as “punishment.” It is shape-shifting, and quite difficult to recognize as it is happening.

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Chapter Four — Financial Tricks

Example Two: I objected to a judge, who kept canceling and granting one lawyer’s last-minute motions to rescheduled hearings. The pending motions, (that requiring judicial management and orders) had backed up to 67 unheard but pending court pleadings. Yet at the beginning of the next catch-up-motions-hearing, the judge opened the proceedings by proposing an indefinite trial postponement sua sponte. There was no motion to delay the trial, nor any purpose for pushing the case back a year or more. ll

The attorney had missed a half-dozen discovery deadlines, so the judge reopened discovery.

ll

The attorney failed to send out any interrogatories or discovery the first two years.

ll

The clients moved out of state, so the attorney came alone came to the hearings, where he was feisty but always late and unprepared.

I calculate the attorney fees (caused by the judge-initiated postponements) increased 3-fold.

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An unprepared inexperienced attorney might bill $40,000 or more, instead of $20,000 a year. (He said guessed his attorney cost was $200,000, and asked the judge to order me to pay his bill as a sanction for delay of trial! The lawyer whined in court about office expenses, the cost of his children. The case dragged on two extra years and the judge offered to postpone it further. You do the math.

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Cases like this, it’s as though the judge is providing the lawyers with an open-ended credit card to bill against. Once non-insiders are caught in the vortex, attorney costs spiral from judicial mismanagement . When one party has wealth, (in one case, a party bullied and boasted of “lots of money,” plus there was insurance policy covering the prompt payment of defense attorney bills. That always like flashing a fat roll of hundred dollar bills in a crowded theater. Deadline Extensions often represent an early Christmas present from judge to attorneys.

WASTED AND UNPRODUCTIVE WAITING TIME Efficiency is not a judge’s consideration — how long it takes to drive to court and back; or if the clerk sets thirty cases to be heard at the same time.61 Some case are detailed other places, but here’s a summary: Example One: In the example of the toddler sex abuse case, one Nashua hearing was postponed to another day, after attorneys waited seven hours at court, (it required twelve hours driving time and a whole day of waiting in the hall). Even at a minimum hourly payment, that’s almost $5,00062 wasted. It was rescheduled on two additional days, before the judge heard the matter. No one cared except my clients. Everyone else was State paid. Example Two: A case involving a small estate was administered by a high-school dropout Trustee who claimed she never read the extensive trust documents that controlled distribution. She had however lawyered-up, with three-expensive lawyers from an insider-law firm, who had favor with the judge. I made five attempts to introduce an original signed, notarized document of the testator, clearly spelling out intent. I presented dozens of on-point case law and pages of treatises and law reviews. Each time I was overruled, but it was clear I was losing overall, and was going to need to file an appeal. So I was determined to make a record of the controlling law, despite the judge’s flaring temper. By my fifth attempt, the judge agreed to read my material, and after a long-lunch, he tersely reversed his earlier ruling and admitted the testator’s letter. But, ha-ha, he had the last word, and awarded approximately 90% of the estate to the lawyers and trustees in fees. Pyrrhic.

61

See also Cattle Calls in Chapter Two.

62

The cost of 8 attorneys waiting — 7 state’s attorneys and me; I did not bill for my associate-in-training.

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§45 Equality of Arms and Other Fairness Doctrines

ATTORNEY COSTS After almost two decades of whistle blowing, my experiences suggest that judges exist in large part to help feed the lawyers. It is time to look at some non-judge controlled alternatives. The lack of competition has drained Americans resources without a fair return on their investment. We are going to court to feed the lawyers. This is one motif throughout the book, the reality of money and wealth transfers to lawyers is only an abstraction, unless you have experienced court first hand. In a troubled economy, judges work harder to maintain the monopoly, just the way any other industry mogul protects its market from competition. Oil avoids wind and solar; war avoids oversight and peace; banking and credit fight consumer reforms; judges fight non-lawyer and outside competition. Yet what greater social policy restrains and guides judges, other than the vested self-interest of the Court? Public opinion? The public doesn’t understand this. The media? Ditto, plus reporters and investigative journalists frequently get stung by judges. Think tanks? Politicians? It doesn’t appear so. It is individuals and some legislators who grasp the trauma of financial devastation caused by the present justice system. But there is a bigger psycho-socio picture than just the economic profit motivators.

CRIMINAL PLEA BARGAINS Putting policy issues in the hands of judges doesn’t work. The old tough on crime politics of the 1980s resulted in a transfer of judge power to prosecutors; criminalized millions of Americans under new crime laws; created overflowing prisons as a result of new flawed social policy ideas; created more new criminals than States could house. Courts and proseuctors found it was most efficient for them (and prestigious for the proseuctors) if criminal defendants just pled out and didn’t go to trial. Criminal trials consumed valuable courtroom time, which could be spent processing and settling dozens of other criminal cases in the system, if only the defendants would plea out. So it was infinitely easier on everyone in the legal apparatus-system, if the judge works to insure the imbalance of power in criminal cases. Prosecutors become royalty; while defense counsel are helped to understand and ‘appreciate’ how the ol’boy system is set up to operate efficiently and productively. Sometimes, it is a matter of appointing a defense attorney who knows how to quietly roll his client into some acknowledgment of guilt — (whatever is going to happen is most likely going to happen) — without the need for a messy, time-consuming trial. Therefore, a defendant who moves to substitute a more zealous or competent attorney for the court-appointed public defender can find high resistance or outright rejection by most judges.

FINES AND COSTS TO THE VICTIMS On a statutory basis, reimbursement of costs incurred in court cases sometimes has wrongdoers pay the state beyond restitution and fines. But there are also examples of victims and innocent people being harassed for re-payment — over cases which they experienced egregious unfairness. Yet they are still billed afterwards for prosecutor and other costs. Hidden costs of family members, victims and innocents include Parents ordered to repay delinquency costs for incarcerated children; Sexual victims who have to pay a perp, hospital, attorney and court costs; Jurors assessed penalties by the judge; People caught in the litigation vortex who try to drop out — get charged and have to pay attorney fees and costs for the other side. And an attorney process that avoids family-friendly solutions, such as mediation.

FORFEITURE Criminal forfeiture is a state process of taking private property in advance of a finding of guilt. It may even be in advance of charging. It skims from the no-holds-barred law enforcement machismo of the failed War-on-Drugs campaign of Ronald Reagan. The modern twist is to use the same arbitrary practices in civil cases. See John Oliver’s take on this from October 5, 2014 @ https://www.youtube.com/watch?v=3kEpZWGgJks 237

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FINES AND COSTS IN THE CRIMINAL COURT AND PRISON PROCESS Defendants have not only attorney and other defense costs, in a system that overcharges defendants to extract plea bargains, (in 98% of criminal cases nationally) the system has a post-conviction process that extracts even more fines and costs from prisoners during and after their release from prison. It’s an economic burden for the rest of prisoner’s natural life. Trial for the state represents salaried prosecutors, while individual defendants often bear their own cost of defense, or struggle with overworked public defenders. The economic incentive is to quit and plea bargain, even when innocent. Now, the post-trial process is further extracting new charges from prisoners. Prison charging has become a cash growth industry milked for profits from prisoners to recession-proof strained state budgets. Prison is seen as a cash cow. Privatized prison contracts began replacing state-owned and operated prisons; they allow corporations to extract operating and building costs directly from inmates, in the form of per diem charges for bed, food, uniforms, phone calls, even video and family visits. Criminal defendants now get released tied to an enormous run-up of prison debt, then find they are assessed a new set of daily costs for probation, drug testing, housing, re-entry. This is a predatory policy that financially hammers citizens least able to pay. People who have served time but must continue to pay the price. Those who struggle without adequate social networks and resources are being required to pay, long after sentences have been served. It represents an ill-contrived justice system policy that economically hurts those most in need of support.

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FINES AND COSTS IN THE COURT AND JAIL PROCESS

4

Courts also found that low-level crimes represent a valuable source of new revenue for cash-strapped courts and municipalities. Just as prisons privatized to passed cost of operations over to inmates, so local courts and jails discovered a financial jackpot from citizens hauled into court for minor offenses, but unable to pay fines, court costs, and other run-up court fees. Nancy Fishman63 talks about how crime in America overall is down, but the number of people in jail is up. Most of her statistics are non-violent, low level crime. She researched the problem of people going to court but being unable to pay the court fine, along with a roll-up of extra court costs and assessments, leading to their incarceration in jail because of their inability to pay. With 12 million people a year in jail now required to pay the costs of their incarceration, (including pre-trial incarceration) then being re-jailed after trial for inability to pay, the social policy underlying these spiraling costs is a national crisis. Most, says Fishman, are for traffic violations. Her report is a compelling and persuasive a new look at national attitudes and new legislative policies on crime and what can be done to stem the injustice. She explores diversion programs, release without bail, and social alternatives to both court and jail. One municipality voted to decriminalize low level criminal violations to ticket-only status — diverting what were previously misdemeanor charges to non-criminal charges, thereby avoiding court appearance, trial, court costs, fines, fees and other court financial add-ons.

63

Director, Research Report of the VERA Program, funded in part by the MacArthur Foundation, May 20, 2016.

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§46 Public Policy, Guidelines, and Statutory Protections

46 PUBLIC POLICY, GUIDELINES, AND STATUTORY PROTECTIONS

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State Constitutions grant the legislature the right to make law.64 But courts increasingly are using non-Constitutional “judge-made-law” to make new laws, enact new social policy, and avoid laws passed by the legislature. Judges use internal tricks of the trade, hutzpah, and fiat to assert a superior right to make law. In these cases, it is important to distinguish between state-made legislative law and judge-made law. Statutory law is the source of most cases brought in court, including all criminal charges. Statutory guidelines are models, and may or may not be mandatory, depending on the language. (“shall” or “may”) Whether from statute or other form of regulation, state legislative elements also define the boundaries of a judge’s discretion, and limit a judge’s ability to ignore state-law by the use of discretion, or by substituting unique new rules or procedures.65 Many abusive judge practices are actually individual rulings, ignoring or circumventing requirements established by statutory law. These judge acts try to create private rights and practices, in place of public statutes (which do not contain the special judgemade ‘rights’ that the court is practicing in these cases.)66 It is a slight of hand judge practice, difficult even for trained professionals to spot. Judges assumed the authority to make rules for how courts operate. This is procedural, and is written as a book of court rules. But judges also claim their judicial authority allows them to set aside (and ignoring,) not only their own rules, but substantive elements of legislative laws, and the Constitution, when these writings are inconvenient to how the judge wants the case to turn out. Judges also abuse this rule-making authority (assuming it is bonafide) by making one-the-fly discretionary orders that they pretend are the same as the published book of rules they also issue. These are two different categories — not to be confused. One has at least a marginal formal public process. The other is a pirated ad hoc ruling in court, that individual judges claim has the force of rule and law. Diplomatically worded, law books call this combined judge-making authority the “tension between the application of a statute’s plain meaning and judicial discretion.”67 Fancy loose and imprecise language, so what makes this any different from imperial expansion and empire-building? For most of the cases reported, abuse of judicial discretion is a major factor. It’s so prevalent that entire cases now get decided using only on judicial discretion. They skip over entirely applying statutory law, rules, precedent. Judicial discretion is an amorphous unbounded opportunity to abuse legitimate court power. The judge handling is not a matter of ‘conflict of law.’ Judges often just ignore parts of the law that thwart what they want to do. For example, almost uniformly across the country, judges don’t like fault grounds for divorce. Ninety-nine and a half percent of all divorce cases in New Hampshire were tried only under no-fault grounds since 1990. But there are twelve fault grounds named by the legislature and listed in the law books, which provide that using fault-grounds is supposed to reward an innocent spouse with a larger division of assets The internal judge practice of refusing to allow an innocent spouse to raise a fault issue, deprives an innocent spouse of the right to a windfall unequal distribution of property. Judges also avoid the financial punishment of a guilty spouse who commits adultery, or abandons a family, or

64

My first ‘legal’ job after graduating from law school was writing proposed laws for the State legislature, in particular environmental and occupational regulation laws — a fascinating area in the late 1980’s, when government regulation was exploding all across America. I saw the formation of new layers of state and federal bureaucracy, including efforts by the bar to (unsuccessfully) enact laws to remove lawyer competition.

65

For a nuts and bolts reference on statutory drafting and interpretation, see my go-to book, Mikva, Abner, Lane, Eric, An Introduction to Statutory Interpretation and the Legislative Process, Aspen Law & Business, 1997.

66

Id. at 16.

67 Id.

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other bad behavior that destroys marriages. The contrarian movement of judges is to ignore state fault laws, and allow divorces only based on no-fault. State judges just made it their group practice not to follow the state law. That authority is based in ??? Nothing. There is no authority for state judges to get together and institute a new law practice because they feel like it. If judges want to be legislators, they can run for office, and work to change the law.

CONSTITUTIONAL CHANGE BY JUDICIAL FIAT

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This same fiat practice is being used nationally, to enact new social policy by the U.S. Supreme Court, under the guise of “interpretation” of some fundamental term in the U.S. Constitution. For hundreds of years, definition and new direction for Constitutional protection (to a new group) was accomplished by passing Constitutional Amendments. (14th, right to vote, gender equality, etc.) Yet increasingly since the 1990s, the Court branch has slipped into Constitutional lawmaking by fiat for major social policy change areas, aborting the established Constitutional Amendment process — which previously was required to recognize a major new right in the Constitution.

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In a few states, statutes allow only for No-Fault, so regardless of circumstances for failure of the marriage, each party gets an equitable (or fair) or 50-50 distribution of property. Other states allow one side a larger share in certain cases (where one side is at fault and the other side is innocent of wrong-doing.) Because New Hampshire courts use supra-legislative judicial practices, judges just ignore or go around statutory law; and an innocent party gets deprived of the opportunity (and right) to ask for financial remuneration. Individual judges take it upon themselves to punish the innocent party (and their lawyer) who seeks to apply the fault-law in a divorce state. Yet at the same time, winner-takeall awards are not otherwise provided in the statutory scheme, unless there is fault. So judges practicing the non-official court practice, end up twisting the law inside-out. The judge avoids giving a windfall payment to an innocent spouse, but pervert the same ‘disproportionate award’ concept to give insiders windfall asset-awards. The non-logical inconsistency demonstrates how judge rationalizations can twist an established rule of law into an informal (but systematic judgepractice,) while completely ignoring the sanctity, moral underpinnings, purpose and language of written statutes.

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Two different sections (§47 & §49) contains 23 financial combat ‘techniques’ used by judges in divorce cases that avoid and misapply established law. These examples tie theory to actual cases. Before we start, there are a few general legal principles readers need to keep in mind. a. The Tool of Judicial Discretion. The judge tool used to reverse a financial order not reversible by law is the use of judicial discretion.68 It’s similar to a magic wand, and usually untethered in law and rule. Although this tool is used in every kind of case, in family law, judges are generally allowed more latitude in case handling, and can substitute their own “personal judgment” because of ostensibly unique circumstances regarding individual families. That’s the rationale. But discretion is the wildcard tool underlying widespread judge abuse in insider cases. b. Constitutional Equal Protection. Because fairness and democracy require universal application of rules in equal measure to both sides. It is un-American and crass to tolerate judges helping each other to avoid paying fair child and spousal support. So in a variety of these special favor cases, trial judges used a number of devises to skirt and change support orders that are not legally changeable. In order to do what they want, (despite laws that don’t support their actions) judges act improperly. We are going to watch for the almost imperceptible shift in the judge’s roleplaying — that allows a judge to get away with acting contrary to public

68

Judicial discretion: a power or right conferred by law upon a public functionary of acting officially in certain circumstances, according to the dictates of their own judgment, and uncontrolled by the conscience or judgments of others. Black’s Dictionary, 5th Ed.

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policy and law. It is systematically depriving some classes of people from due process protection at law. By using unfettered discretion, Judges have systematically recast certain people into the status of nobodies -and victims at law. These people still exist in the case, but marginally, without the same rights and law-status as the insiders involved in these special cases. c. Techniques for avoiding rules and other due process rights. Sometimes, a judge has to ignore a court rule (or miscite it) to avoid enforcing it — for example, a pre-existing financial order. This kind of Rule manipulation functions in a number of ways. Here are some: i.

A judge can just ignore or fail to apply a rule as a judicial favor.

ii. Most outsiders, and many insiders don’t know the rules or laws exactly,69 so a judge can misquote and misapply, including in a very harshly tone — to trap outsiders into an alleged violation. Then the alleged violation is harshly sanctioned — first with threats and fines. Then it is labeled “contempt of court.” It can result in dismissal of the target’s claims, with lots of harsh financial sanctions applied. When it happens in criminal cases, innocent but targeted people get convicted. Brady is commonly avoided. (See next chapter on Brady). When you are innocent, this kind of judge mistake and abuse seems obvious and therefore unreal. iii. Sophistry. Remember these are illegitimate manipulations, so everyone involved tries to keep the exact fact/rationale from the Defendant. At the same time, the rule/violation will be described in abbreviated, convoluted law language, using words of art, but in a shortcut, summary way. There may be a lot of hyperbole and exaggeration going on as well as legal confusion. Also a lot of posturing and intimidation. iv. Due process and other procedural protections will be forgotten or overlooked. This is almost always an ambush. v. When deconstructed later, the judge rational will be flawed both in logic and reason. The review court will avoid looking at the trial court judge selection of facts to see if they were fairly determined and applied. vi. When exposed or appealed, everyone in the court system will claim afterwards that it was mere ‘harmless error’ and they won’t touch or correct it. d. There are a couple dominant themes in the 23 case examples. Four are examples are how judges alter nonmodifiable support and property orders. Several are how judges exercise domination and control to work to intimidate largely poor and pro se parties (as a class). A few show how a case can be flipped at trial to work an Insider benefit, when the proof and evidence and law support the opposite outcom.. Some I personally experienced, others come from cases of other ex-wives. At least three cases were from my clients. e. The amazing thing — these are almost all cases involving fiduciary relationships and high-earning spouses, where the fiduciary duty is ignored, and the rich are made richer by taking from the poorer side of the equation. On the illegal modification cases, compliant judges work with other insiders, to manipulate to ‘legally’ steal valuable property after divorce from dependent ex-spouses and children (this is a class of people that society expects judges to protect). Why judges believe this kind of deceit is okay in court — is a profound moral question. How they rationalize it, is a different question. I add a third question: how do they sleep at night? The following examples make up a wide range of legal manipulations, inconsistencies, and outright lies trial judges use in court. These are in the financial chapter because the results impoverished spouses (mostly of other judges.) Pay attention to the slight nuances of words and law that get twisted to justify outcomes that sound okay and legal. 69

As courtusers, the public assumes judges know and follow the rules. Sometimes, they don’t even know them. They think they know them, and have a general but vague and fuzzy idea about what the rule actually provides, and doesn’t provide. But judges in the heat of battle against an outsider are imprecise and imperial. They don’t stop to read or check the rule before they apply it.

I once had to appeal another case where I was summarily dismissed — for egregious contempt of court for not updating all my discovery answers on the first day of trial. I was accused of “criminal conspiracy failure to update under Rules of Civil Procedure, Rule 37.” My case was dismissed for violating a discovery rule duty, which upon careful reading of all the rules of civil procedure, doesn’t exist.

Every state court overall makes it inconvenient to get an easy copy of the entire set of rules. You can’t just stop at the clerks office and get one, or cheaply buy one or part of the West or Lexis-Nexis annotated versions. Yes court rules are online, (kindof) but they download and print tediously-one small rule at at time in a very cumbersome process. That’s part of insider-game that courts do to be non-helpful to the pubic — especially those who appear at the clubhouse without first hiring a club member.None of the club members involved in that Rule 37 contempt-case knew the rules either. I sat on the witness stand in a cloud of false accusations, being (sigh, yet again) reduced to “nobody status” by a judge, who applied a rule that didn’t exist to default me. This was in a room full of attorneys and paralegals, who also didn’t know exactly the rules of procedure. My takeaway is, judges playing favoritism games are actually just men acting in a pivotal role who must reduce the target to nobody status, to deny that person a basic right — the right to have their claims (or defense) heard and evaluated in court. We examine re role of nobodies in this court charade and scenario in more depth in the next chapter.

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(1) AVOIDING THE MANDATORY DISCLOSURE AND FILING OF FINANCIAL AFFIDAVITS Has the judge applied the proper procedural rule(s) about each party’s duty to file and notarize a financial disclosure form? Each must be receive true, accurate, complete and verified financial affidavit from the other side, in advance of hearing where a judge makes financial rulings. The state rule is not waivable or modifiable. The purpose is to prevent fraud and insure each side has adequate time to study and investigate. This court rule was so frequently manipulated by tricky attorneys that it got taken up to the State Supreme Court, where it was spelled out that this required at least 10 days advance receipt to the opposing party.70 [This is where judges yawn.] If that doesn’t happen, the judge is stopped from going ahead with the final trial or ruling. The principle behind the rule is to provide (at a bare minimum) one side from having a trial by fraud or ambush. Each side is to deliver to the other a complete statement of their financial condition, on court forms. So whether it is spousal or child support, or property division, there is a requirement for full financial disclosure, under penalty of perjury. There is a continuing duty to update.

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It is the judge’s responsibility to make sure the rules are followed; a judge lacks power to waive these rules.71 So here are a few of the kinds of violations that show up in Insider cases. Trial judges yawn at the violation, and appeal courts try to dismiss it as a minor error. Defective blanks. An affidavit is delivered to the other party, but is defective, incomplete, omits facts, or mostly blank. In my case, the affidavit I finally received was a blank form, not signed. In the signature block was written — a protest note.

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Altered. The standard court form is altered on a word processor, so material information lines (including assets) are missing from the form. Late. It is delivered late or not at all. “N/A”. The blanks are filled in with “unknown” or “n/a” (not available). Unsigned. The party simply doesn’t sign it. Are they trying to avoid perjury? Every affidavit needs to be signed and notarized. Material omissions. In most of the fraud cases, there were material omissions—the largest assets are overlooked, or not valued or egregiously undervalued. One husband failed to list his $20 million company in Hopkinton, New Hampshire. My research to overturn that divorce included his magazine interview, where he noted about his global market position and his company value. Fraud omissions: Offshore accounts and preplanned hidden assets do not get listed. Both trial and appeal judges fail to correct and punish insiders who violate procedural rules. My examples focus on judge behaviors, not the attorneys. Judges are in charge of insuring all rules are followed; they have the power to clean up and deter attorney dirty tricks. But they don’t. That’s actually an act of omission. By looking away, judges encourage manipulation. Here are a few examples of how a judge ignored rule violations: The judge avoided financial affidavits (from both sides) for months, but made many financial orders anyway, based only on the oral representations of one — the Insider. When the Insider finally filed a financial affidavit, it was ex parte, and the judge accepted it. Husband wrote on the oath signature line, I refuse to provide a copy to my wife because she can’t be trusted. He mailed a blank affidavit to me. For two weeks, I drove to Rockingham everyday to get a copy of that ex parte affidavit. But the judge removed it; the Clerk of Court kept saying the file was in the judge’s office and unavailable.

70

In New Hampshire, the seminal case defining the 10 day rule was Shaftmaster.

71

I actually believed and practiced these rules. But judges ignore this law so often, it’s as though it doesn’t exist.

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Meanwhile, the judge avoided sending me a copy until after she ruled that she found Chuck’s affidavit “to be truthful and accurate.” (Note: like she would know?) The judge then ruled the affidavit was the basis for a new modification order (cancelling earlier support orders — accrued and future.) Before, during, and after, the judge avoided applying the rules of procedure. The judge acted as thought they didn’t exist. I had a right well-established in law, but couldn’t access it.72 I had no chance to investigate, input, impeach or cross-examine Chuck’s financial affidavit –or even see it — until after a new order was released.73 Afterwards, a litany of other evasions and limiting rulings worked subsequently to avoid my CPA-expert testimony about Chuck’s gross understatement of his reported income. My CPA expert formerly was an IRS special auditor. The judge made new rules — again creatively — to keep the Expert’s testimony, conclusions and report out of the court record. Even after appeal and judicial conduct complaints, the reviewing committees and courts found no misbehavior with Judge Coffey withholding Chuck’s financial affidavit.74 I had re-written the state family law treatise, and was well versed in financial affidavit rules and law when this occurred. It was frustrating to know the Chuck and the judge were doing wrong, yet I was unable to bring logic, reason, law and common-sense to the case handling. Rogue handling happened on dozens of other issues; it was a Kafque court, where I knew well the rules and law, but nothing was as it seemed. At the time, I thought it was a problem of one or two rogue judges. I’m convinced now it is a nationwide pattern of judge abluse that has evaded exposure by the traditional routes of appeals and conduct complaints.

The hubris of denying any opportunity for a wife to review and contest the husband’s financial affidavit; then having the judge finding it was legitimate without allowing examination, means even the appearance of justice doesn’t matter, and there was nothing I could do about it.

So, I write this rule of law twice — the financial affidavit exchange rule is not waivable, — but you have just seen how one judge waived it, and the Supreme Court looked the other way. Yes, I took it up on appeal, and no, Judge Brock’s special appointments did not correct this. I got a new trial, and Judge Coffey acted worse at the second trial. So how does one force a judge to do her job? You can’t. When you try, she will evade first and retaliate second. But eventually, after almost two decades, this judge was removed from office. After so many people complained so loudly and long, Judge Coffey was removed for misconduct. Not in my case. But someone’s case.75 Maybe, loud cumulative complaints from a lot of people can work to remove a bad judge.76

72 This is part of the ‘nobody’ connumdrum — where basic rights are not accessible by one party in a case. A law-right is denied to those people in the ‘nobody’ category. It is a subtle, unidentified pattern in these kinds of cases — stripping rights from one side of a case, by acts of judge discretion and avoidance. 73

There were a dozen more evasive rulings and manipulations, but this sample about one Rule on Affidavits, is enough to advise how to watch for unethical behavior, not only by the party, but by the judge and clerks.

74

Judge Patricia Coffey dominated the N.H. Judicial Conduct Committee, and for two decades avoided multiple judicial complaints against her. Eventually, after widespread publicity in multiple cases including mine, she was removed from office … for sleeping on the bench! Interesting that with all the egregious harm she caused, that the Court waited years for a non-criminal allegation to remove her.

75

There are many more judges out there like this. I hear anecdotes and read cases every day — there could be more bad judges than good from the number of stories generated about divorce court.

76 But as Americans, are we content to fix a big haystack of a court problem, just one straw at a time?

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(2) “STAND UP!” — DISPARATE, HOSTILE JUDGE TREATMENT Marital Master Harriet Fishman repeatedly told a Rockingham New Hampshire husband (representing himself in divorce) to stand when he addressed the court.77 Her rebukes were sharp, tense, and impolite in tone. She threatened to default him when he responded to a question she asked without remembering to stand first. [Note: That is severe and disproportionate, but revealing. In this line of work, you look for the cases that are so bad, they’re good.] However for months before and after, the opposing woman attorney remained seated when addressing the master, was not reprimanded or corrected, and the master frequently made suggestions in an agreeable tone, and offered assistance to help the attorney’s case in chief. You could recognize the disrespect in the master’s tone of voice and vocabulary when she addressed the pro se — but not the attorney. We saw the same thing in the Thayer divorce. If there is an audio or video — it may demonstrate the judge’s hostile disrespect for one party that often may not show up on a transcript.

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At the man’s request, I sat through one hearing before accepting him as a client.78 The master was clearly hostile to him, but her treatment was not the only outward manifestation of bias. The husband was acutely aware of his disfavored status and strongly suspected it resulted in the final orders awarding all assets, including his pre-marital separate home, to his ex-wife.

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NOTE: Recognize the winner-take-all outcome? Where a biased judge hammers one side by use of judicial discretion and manipulation? Legislatively-enacted divorce laws don’t provided for that kind of unfair all and nothing distribution, so judges hide it within their discretionary rulings that devalue or zero-value assets, while making flawed findings of fact to justify zero-value property division to one side. If that doesn’t work, judges can also initiate contempt of court issues, also highly manipulated and selective. By ordering all the audios of all his court hearings from the clerk of court, and then systematically tracing the verbal, physical, and linguistic examples of judicial bias and favoritism, (and with my help, tracing the case mismanagement and acts of judge discretion) the husband was able to document and substantiate his request for a new judge. He attached affidavits from local attorneys he had tried to hire. He got a replacement judge, along with orders for re-hearing of his post-judgment motions, (originally denied.) The master was transferred to another county, and a supervisory judge assigned a new master to preside over the re-opened case. Judicial bias however permeated earlier handling and orders and caused irreparable harm. The court system may provide a new judge, but almost never a de novo79 new trial. It’s an expensive, double-loss situation for legal consumers who can’t recognize and remove a biased judge early in their cases.

ANOTHER EXAMPLE OF DISPARATE TREATMENT — TARDINESS It’s the little things that judges manipulate. The same attorney who wanted to wager with the $500 in his pocket (he offered me 5 to 1 odds.) He was adamant that he knew how the judge would rule. He also was perpetually late for court and depositions, and the judge always assigned him to write the orders, but he didn’t. There were no repercussions. It messed up the case greatly because this lawyer was unreliable. For the problem of tardiness, the judge thought it wasn’t a problem. He searched through his record and found I was not truthful about the lawyer’s tardiness, because the 77

Nancy v. Michael and Barbara (co-respondent), Brentwood Family Division, Rockingham Superior Court (N.H.), Docket 2000-M-212.

78

He previously had met with five local attorneys, and all declined to take the case based on this judge with this opposing attorney. So he had proceeded in pro se. I practiced family law out of that district and had never met either woman.

79

De novo means trying the matter anew as though there had not been heard before and as if no decision had been rendered. Farmingdale Supermarket, Inc. V. U.S. D.C.N.J. 336 F.Supp. 534, 536.

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attorney was once only 13 minutes late, and the judge further found he started court 3 minutes late. Although all other parties and clients were on hand and waited over 90-minutes, the judge declared “the devil’s in the details” to find that no issue existed about time wasted by this attorney. But “time wasted” was a judicial theme against me, the pro se. The judge repeatedly announced, “well, we’ve wasted 20 minutes hearing your motions. (Or 40 minutes, or an hour) after each of my motions, and he made my wasting the court’s time an issue of each hearing. But he never noticed the $500-betcha-attorney. What I noticed though was how many times in each hearing the judge provided excuses for Mr. Perpetually-Late and I wondered what their connection was. Whether tardy 18 minutes, or 30 minutes, the obvious clue here is the judge’s active ‘support’ for a particular lawyer, that spilled over to influence other, more substantive orders. After I asked about an appearance of preferential treatment worthy of a $2,500 wager, this judge struggled in court to make his rulings seem artificially precise. For example, he began announcing the exact time he made each order — as though that precision made the ruling more rationale. (Or unbiased.) The judge was 84 years old, and seemed to have trouble following precedent or statutory requirements and legal argument. He enjoyed the chaos and demeaning argumentative style of the Wagering-Lawyer. He sometimes appeared to be dolling out favorable rulings based on percentages — one for you — the next one for him. His rulings didn’t reflect compelling law or precedent. In situations like this, I recommend, just keep making a definitive record during each hearing for appeal. I also moved for him to recuse and documented carefully his apparent senility, and he resigned from the bench before the case was over.

(3) THE HIDDEN COSTS OF NON-COMPLIANCE A party in possession or control of an asset, who fails to turn it over or to sign a title, can delay years, and courts often don’t respond to enforce earlier final orders. When judges write orders (especially involving former family members) with no provisions for compliance, the non-insider often has few resources for enforcing the court’s orders. Finding and prodding an attorney, and paying enforce and collection costs of hearings, means that asset transfer orders are not enforced. This can be anything from signing a title document, to transfer of real estate, to paying support, transfers of life insurance and retirement benefits, to stock and bank accounts. Any property divided by the order assumes the party will complete the necessary paperwork in a timely manner. What happens when a former spouse refuses to cooperate? Resells the asset? Dissipates it? Why is it so difficult to get a court to enforce final orders? Unless a party is very persistent, making repeated requests for enforcement, and is able to follow through ) to collect and attach, the court many times will simply ignore the failure of a dominant party to turn over assets they control. The court almost never covers the attorney cost for obtaining compliance with old orders, and the cost of pursuing collection in a different state or court(s) becomes prohibitive.

LACK OF BOILERPLATE LANGUAGE FOR COMPLIANCE COSTS Largely, this issue could be offset or prevented by final orders, just by a judge writing a simple written compliance cost/expense provision, in the order, at the time it issues. Boilerplate language inserted in every final order of divorce by the court. It almost never occurs. Yet it easily could be added to the pre-printed forms used by the courts and would make a world of difference for people who cannot afford enforcement costs.

(4) CHANGING A FINAL ORDER (IMPROPER MODIFICATION) Trial is over; the orders are final. Someone’s unhappy and wants to change an order of payment, but the time for appeal is passed and the Order are set in stone. Is that allowed? Absent fraud or material mistake, no, but what if the judge

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didn’t get the insider favor straight, and the party wants to undo the order. We’ve already seen a couple examples — property not transferred, arrearages not paid, support avoided (or if paid, reversed.) This is how a judge sometimes can undo, reverse, suspend, nullify, or offset a final order at a later hearing after the order is final. It has been used to override established property rights in both real property and child support and spousal support. Contrary to law and policy, these techniques take away asset awards and support after trial. Sometimes it’s by double-dipping or slight-of-hand math. Hang on, this is a long but important section because it shows how ol’boys can leave people impoverished and in the cold even after they win at trial — while somehow, making the whole conversion sounds legal. I experienced it several times, and failed to recognize exactly what was happening for a long time. (Alright, I’m slow, old and trusting.) But it’s a matter of practice, and after a half dozen times, I finally learned how to catch on faster. It’s time to deconstruct how judges make changes to orders that are already final. Pay attention to the asset category involved in these of modifications — spousal support, child support, property awards, and takings by contempt. Each has a different character and treatment at law.

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NULLIFYING EXISTING ORDERS FOR SUPPORT

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Standing financial orders are often not modifiable at law unless the payor demonstrates a bonafide reason from a statutory list. That means financial orders are predictable, stable and reliable. People on the receiving end can plan and rely on a judge’s order, and non-payment violations by a payor become enforceable as a matter of contempt. There is no magical transformation process. Payors have to meet strict criteria before they can apply to the court to change a final financial order. The application or motion should be delivered well in advance of a scheduled re-hearing, (at which time the dependent party has a chance to stand up and defend against the proposed change.) Judges may not exercise their discretion to willy-nilly change existing financial orders. State laws apply. For example, in New Hampshire, to modify child support, the payor is required to demonstrate a dramatic change in circumstances or three years passing. So, if a judge wants to help an Insider avoid paying support that is already ordered, but payor doesn’t meet the statutory requirements, one technique to circumvent the law is to nullify the earlier order.80 This same nullification is used to evade ordinary and customary legal processes and statutory requirements for modification or elimination of all other kinds of existing final (or temporary) payment orders. Watch for this pattern: Judges get away with making nullifying orders, but often they have to set the stage, or maybe they are so unorganized, this error flows naturally. It starts with ambush — the non-insider party will not know before showing up at court that she is going to lose an important asset or funds that was previously awarded to her. a. Create an ‘informal atmosphere’ in the courtroom. Judges frequently claim a right to relax formal court rules, (this happens often in family law matters.) Relaxing can side-step due process requirements and it creates an unstructured court atmosphere that allows all kinds of agenda items and subject matter treatment that results in quiet but improper modification of earlier orders. It doesn’t following legal prerequisites. So formal procedures (rules) get ignored. b. Sometimes, this happens during what is scheduled as all day hearing on “all pending matters.” c. The judge also may allow a chaotic courtroom, with an agenda that is loose, vague, and without specific notice of what issues will be taken up. The hearing goes far beyond what was in the notice, and may lack a valid and traditional structure. The judge takes up new issues, and sometimes initiates new issues, ruling, rules and, as the hearing goes along, new orders.

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For example, see again the Thornton case Manchester Docket 92-M-0559. where the original trial Judge Sullivan ordered permanent child support beyond age 18 because of the child’s birth defect/disabilities. That order was ‘lost’ a decade later by decree of Associate Judge Robert Lynn. Judge Thornton had remarried and wanted to retire without paying child support. There was no unanticipated change of circumstance or miraculous recovery by the child, merely a change in the judge. Remember this is the file where child support payments were depressed from the start — by using the chief judge letter of a potential cut-back in future judge salaries, (something that never occurred) as “proof” of lower earnings that what were actually received.

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d. The judge skips over essential requirements — like making the parties produce financial affidavits and proofs. But Insider assertions (and his attorney’s) are treated as fact. This is a perversion of the Officer of the Court “courtesy” that judges give to attorneys and other judge/parties — to testify, make assertions, accusations, say almost anything without proving anything, as “an offer of proof” or “an argument.” It is an enormous problem in court. e. I-phone evidence. I’ve seen judges allow ‘proof’ to be an attorney’s cell phone picture of what the lawyer alleges is a photo of a document “proving” an assertion. One judge became enamored with the I-Phone 6-s evidence — (and everyone pulled one out to have staff transmit new on the spot ‘evidence’ (except defendant.)) The judge pretends an electronic photo constitutes real “proof” of an underlying fact, (but it does not or is incomplete or otherwise unreliable.) These i-phone proof hearings move rapidly; there is no time to challenge the tiny (partial) photo on the cell phone (even if the judge orders it to be printed and passed out the end of trial). The opportunity to answer and object is rushed down the electronic river of change. Court rules often allow attorney cell phones, but non-lawyers are not allowed cell phones in court. This electronic office/connection is a distinct and unreliable imbalance in court. f. Sometimes, judges try to ‘interpret’ plain language of the final order — and in the process end up carving out niches for exceptions. In law, the phrase is ‘to distinguish’ intellectual microscopic exceptions. It’s hair splitting to avoid the earlier order.81 The final order calls for payment of a counselor for the child — but the judge rules the counselor is Christian, so cost of therapy is not covered by the order. Expenses include pedodontics, but not orthodontics, even with letters in evidence of essential treatment. Or payment was ordered for extra-curricular activities, but the payor refused camp because it’s overnight.) Or a spouse unilaterally deducts the value of a gift from the opposite-parent grandma from a support check. The non-payment excuses are endless and creative. g. There may be intimidation, coercion, and judicial bullying. Sometimes, the request to modify an existing order will seem like a tag team effort. The Insider suggests, (especially orally and on the fly) and the judge orders it on the spot. Or the other way around. h. I’ve seen a judge trade a nominal $1,000 IRS post-divorce tax bill (marital debt) for the wife’s substantial real estate interest, not yet transferred several years later (just prior to its sale.) i. Suddenly, there is a new order in place of the old, and the party lost some asset or right now wonders how that happened? The other side suddenly has an unexpected financial benefit, and the non-insider party walks out of court wondering ‘what the heck happened in there?’ Your attorney can’t tell you. You just are much poorer in some aspect. Two scenarios of legal ambush — one at the start of the case, and a second at the end. An opening ambush represents an uphill road get back to a fair footing. It is next-to-impossible to regain the original asset back. (Even reopening a case later for fraud, is always a difficult and uphill fight.) If the ambush comes later, at hearing or trial or at a post-trial hearing, it hard to deal with, even if the judge allows a short break (usually 15 minutes) for the ambushed party to examine whatever was prepared in ambush. There is a psychological dizziness of being confronted with a surprise element. If it is a number-driven spreadsheet, or packet of monetary sums, victims get trapped in studying and trying to process the numbers. They don’t have the time or objective distance necessary to process the big picture — of who, what, and the statutory and social policies that prevent ‘repayment’ or ‘reassignment’ of an accrued asset. (Certainly not for ‘repayment’ out of an asset with a different legal character — for example, taking your property to pay back support you received.) There is not enough time to process the data in the exhibit, much less investigate it’s accuracy and develop defenses. The judge ignores the discovery-process violations, and all the reasons why the exhibit should be excluded, and why the claim violates law and public policy. There are other reasons judges don’t follow the rules: mismanagement, judicial inexperience, or they don’t learn law details in a specialized area. Maybe for broken arm accident cases a lame suggestion of a senile judge might be okay, but I doubt it. But senile judges aren’t the only ones who cause harm. In the cases I experienced or reviewed, the problem was always cronyism, not just a weak judge who lost control of the courtroom to an aggressive attorney ambush. The critical telltale sign of a judge subverting the law is when they overplay the joker card of judges — the wildcard of judicial discretion. A judge substitutes a discretionary ruling for a material and substantial right at law.

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My examples are about child support — but this process of distinguishing an earlier order — has also been applied to global corporations and railroads.

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MODIFICATION TO ALTER ANOTHER JUDGE’S CHILD SUPPORT These techniques happen also in cases between strangers, but from the anecdotal and case reviews of the ex-wives of judges, all cases (with one exception) involving judge-paid child support later had improper modifications. Families of judges had support and benefits slashed or eliminated by second-thought crony favors after the order was final. Sometimes, the original orders had been properly calculated under state guidelines and statutory mandates, (so ordinarily would not been modifiable without a change of circumstances or the passage of time.) But it happened anyway. I believe recognizing these cases provides insight into other abuse, and hope that by sharing what the ex-wives experienced, others can recognize and help fix what I consider illegal and immoral favors to insiders. These are insider tricks — and the first one happens when some Ol’Boy is already divorced, but has a monthly child support payment and he wants to stop paying. Country club insiders have grown to feel entitled to special treatment. They want the court to lower their monthly payments, or make an order of no payments, especially in matters of child support, alimony, property division

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Each state has a rule about when it is okay to modify child support. In New Hampshire, it was after the passage of three years or a material change of circumstances. Other than that, the old order must stand, and all a later court can do is enforce it.

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(5) CHEAP BASTARD CHILD SUPPORT (CASE EXAMPLES) (A) $5 CHILD SUPPORT When I first began practicing law in the late 1980s, the most complained about Marital Master in the state was Stephanie Nute. She was infamous for heartless discretionary support rulings — and gained another reputation after she ordered $5 monthly child support payments. It sounds immoral to order $5 a month in child support, but I have tried to imagine circumstances where $5 a month would be an appropriate amount. If a parent cannot afford to pay, or if there is a great disparity between the parents’ earnings — why order payment at all? If parents are wealthy, children should be enjoying that same standard of living. $5 is not in compliance with state minimum standards, so I am wary of the Master Nute $5 order. It sounds like a paucity on its face, and my concern is threefold: (1) judges who are out of touch with what it costs to raise a child, or (2) judges who don’t follow the law, or (3) judges who fail to treat the people in their courtrooms with basic dignity and respect. In the elite world where lawyer fees are artificially maintained at hundreds of dollars an hour, this $5 monthly order has further nuances: The attorneys82 in the case undoubtedly collected fees, which equaled years of $5 child support payments, just for their few hours of effort — namely, the time it took to try this support hearing. An hour-long hearing with fees for two attorneys would cover about 4 years of child support. This is third-world country mentality — rich people throwing chump change at children. For America, it is disgraceful just on its face. The disparity between the outcome and the attorney fees is too great to contain even the hint of social parity. Another client of family law Attorney Jonathan Ross was a disabled woman with a progressive disease (I believe it was MS).83 She had little hope for an independent lifestyle. The marital master terminated her support under a new 82

One firm was Wiggin and Nourie, a prestigious New Hampshire law firm.

83

Henry v. Henry, 129 N.H. 159.

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alimony statute that the master took to mean all alimony was limited, and was only for purposes of ‘rehabilitating’ a wife. I disagreed with that case interpretion, wrote about it my New Hampshire Family Law Practice Series treatise. It represents a judge-law alteration of a marital duty of support. Later, Ross showed up at the Executive Council hearing to testify in glowing terms about why the master should be elevated to an associate justice of the superior court. ‘Guess he just forgot that he had to appeal her parsimonious rulings for his clients — for essential support.

(B) DOG SUPPORT84 As a divorce attorney, when my clients were penciling in their financial affidavits, I would remind them just how expensive it was to maintain a pet, especially a dog, which can weight as much as a child, and need shots and sometimes day-care. Still, it was with great surprise that at the first ex- wives of judges conference, some wives shared personal stories about unusually small amounts of child support, (despite all their ex-husbands being high-earning judges and politicians.) Since child support amounts are established by state guidelines, and because salaries and earnings of judges are public record, it became apparent that some other force had to be in play for judges to pay less than other ‘normal’ noncustodial fathers.

(C) DOGGIE SUPPORT FOR CHILDREN OF JUDGES One crude rule of thumb for assessing whether an order for child support is adequate, is to ask if it is enough to support a large dog? Often, the answer in judge-support-orders has been “No.”85 What is interesting though is judges earn comparatively well in our society, and they are also well taken care of in terms of social benefits, (health, medical, vacations, light work hours, and 100% retirement) which they do not contribute or pay to maintain. What JNad earned as the chief judge/administrator of a mid-level tier of court is public record, but that’s obviously not what he used to purchase his Rolls Royce86 or Gucci clogs for work. His personal fortune is not the issue, as much as being out of touch orders that were supposed to make provision for human needs and support. This is the flip side of favors and largesse given to his friends. The lack of concern about creating a corresponding harm to the ‘other’ side is a problem across the judicial community. If a judge uses his authority to manipulate financial advantages and assets for another judge, that takes away something from the other party in the case. Favors to one, upsets the other. Not only unethical (and sometimes illegal) this kind of rogue judge activism indicates defective thinking and creates severe financial distress and even long-term poverty for the other side. But favors are routinely practiced for other judges, so it is routine for trial judges to harm the family members of other judges! I believe if it happens to them, it most certainly can happen in other kinds of cases. This insider-outsider dichotomy in court practice is shocking and un-American. Practiced in secret it only works if the judge goes along, using his power give the indicia of authority. Why deceit is admired by Court-Insiders, and therefore tolerated, practiced, overlooked and protected at all levels of the legal system, is one of the great evils of Western justice.87 It is the responsibility and power of honest judges to fix it. As a private citizen, I may stand alone, but I stand up and call out these privileged tyrants who cannot find their humanity. Father Rohr explores — not judges specifically — but western men of power who act from fear — not love. Fear and greed. Love is a Christian concept — which is why I think it is fundamentally wrong to try to expunge our moral religious roots from American government. I’ve experienced justice without morality. It begets greater injustice.

84

There actually is a case of a gay couple who split up and a lawsuit for dog support. (Rockingham)

85

The minimum under state guidelines is now $50 a month per child. Hungry dog.

86

His vanity license plate on the Rolls was ‘Chief 1.”

87

Illumination credit to Father Rohr, Center for Action and Contemplation, Albuquerque, NM.

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(D) JUDGE COMPARISON — FOUR TIMES GREATER A father, an airline pilot, was divorced in New Jersey, where he was ordered to pay $1,000 a month support for his son. Subsequently he moved to Hanover, New Hampshire, and shared half-custody of his son. The new judge ordered him to pay $2,100 a month. Interestingly enough, both the judge and the pilot made the same salary, but the pilot paid four times the amount of child support that the judge paid.88

My Diatribe

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What we’re talking about — what judges pay in support of their children, for how long, and if they actually pay it or weasel out of it on some convoluted offset or rationalization, it seems that marrying a litigator-turned-judge is a poor investment for women. Riding the career tail of a litigator through law school and professional development as a lawyer, up through judgeship is often no personality picnic for the wife; nor is it a good investment if the couple later divorces. The willingness of other judges to extend professional courtesy to the brethren by disproportionate financial awards at the expense of children is particularly offensive, because of the stature and role of judges in society in setting a good example and receiving social bounty. It is an extension of the autocratic system where judges believe themselves to be entitled to more than the women and children they are legally attached to — because of their role as leaders and judges.

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Advice: Don’t even consider marrying a judge or litigator without a really strong pre-nuptial contract providing contractually what you are entitled to under statutory divorce law.

(E) SPECIAL NEEDS CHILD OF JUDGE One of the ex-wives was in poor physical health and had a special needs child at home who suffered from hydrocephaly and low IQ. After divorce, the mother was forced to began outside work. Wal-Mart hired her for a job where she could lean on a cart to get around restocking clothes. The gorgeous blonde, blue-eyed daughter hoped to be trained in her special school to get a job to help out her mom. The judge remarried, terminated his medical insurance coverage and filed for termination of child support when the child graduated from high school. Her judge-father argued that he wanted to retire, and the child was technically an adult. He argued she could live with her mother in lieu of his support. I became involved in this case after the former wife came to the Ex-Wives Conference. Together we went to court where we were told she could not see her court file because it was sealed and she did not have an attorney. It took a year and several hearing to even view her court file; the court clerks were hostile and condescending. Even after I filed an attorney appearance for her, they wouldn’t let her look at the file, and I wasn’t permitted to copy it. By the time I got that impediment ‘corrected’, the Chief Judge’s salary-reduction-letter (a trial exhibit), and the child support worksheet, and all child support documentation were missing from the court file.89 We spent the next year trying to increase her child support up to the normal guideline level, (it was about 25% of the state mandatory standard) and spent another two years trying to hold on to the permanent order because of the child’s handicap. To no avail.

88

“Dads Complain of inconsistent treatment in divorces” by MaryEllen Driscoll, Keene Sentinel, April 28, 1994. Compare this with the other New Hampshire extreme — the Hildebrand case.

89

In the matter of Thornton v. Thornton, Hillsborough Superior Court No 92-M-559; see also appeal of the adult-dependent child in the state supreme court regarding termination of her permanent order of support, November 9, 2003.

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Despite a state statute90 that made explicit provisions for extended child support beyond age 18 for a disabled child, and a final divorce order in this case that provided permanent child support beyond age 18, a new judge, Judge Robert J. Lynn, magically terminated the earlier order of permanent child support and denied family support. He said the child could work a part-time menial job and “did not need the judge’s support” despite her life-long handicap-dependency status. This child has permanent disabilities, and Mom had a number of disabling strokes. Blessedly, the child and her mother were hired at Wal-Mart. If it weren’t for blessing of a Wal-Mart hire, and the daily largess of the Mormon Church, this judge’s first family would have been on the street. Shameful. Question: Would a court rule the same way if the payor parent was not a judge?

Artificially depressing a judge’s earnings — Letters from the Boss of Judges When the Ex-Wives of Judges first came together, each was randomly assigned a roommate for the conference. Remarkable synchronicity. Or else the same judge tricks are used all across the country. Two reported that on the first day of their respective trials, their judge-husbands showed up with a letter from his boss.91 Two different chief judges wrote two separate letters, each letter suggesting the husband/judge would have a lesser income in the future, for purposes of calculating child support. Since judges’ salaries are public record, these letters projected as much as an 80% decrease in future earnings (due to possible cutbacks in schedules and outside teaching work). Each presiding trial judge used the chief-letter as “evidence” to reduce child support payment amounts due under the calculation guidelines. And remarkably, the discounted figures in the letters were the ones plugged into the child support calculation tables.

EXERCISE ANALYSIS OF JUDGE-CHILD SUPPORT CALCULATIONS It is necessary to make a qualitative inquiry of the judge’s rulings if you are going to fight back against court manipulation. I call it ‘reverse engineering’ and have found that judges who succumb to fast & loose use of their powers are often careless. They don’t expect to be called out on the record or otherwise discovered. 1. ‘Common folk’ have their child support calculated on their prior (historic) actual earnings, not future projections. 2. Each chief judge letter was a surprise tactic first introduced at final trial without advance notice. There’s not time to study, object, or think through the implications. 3. Each presiding judge used the letter without question to calculate a dramatically lower child support payment for another judge. 4. Other witnesses had to appear to authenticate documents, but not the authors of these particular letters. Judge letters are apparently accepted as compelling evidence, despite their hearsay and other unreliable components, such as future projections, not solid history. 5. Each of the letters (exhibits) subsequently disappeared from the court files, without copies or explanation. Either the clerks of court or the judge cleansed the court record. 6. The husbands’ incomes were artificially depressed resulting in a 50% to 80% depression in amount paid under mandatory state guidelines.92 7. New Hampshire Chief Justice Brock said he was changing a longstanding private court rule that permitted associate judges to teach/earn from law schools. The net effect was about a $90,000 change in income for purposes of calculating Justice Thayer’s child support payment. 8. While this is not expungement, it demonstrates the willingness of the brethren to informally and helpfully provide one-sided trial documentation in a manner which is highly prejudicial, questionable, and offensive to the other 90

RSA 458:35-C.

91

These two cases were Thornton and Thayer. The respective “boss” letters for the judge-husbands were written about a decade apart; each was applied to depress/alter normal child support calculations.

92 Id. Thayer and the Thornton divorce cases, both New Hampshire judge divorce cases.

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side. In each case, the divorce court judge accepted these last-minute letters in lieu of actual historic income statements, then the trial judges lowered child support grossly below conformity with the state child support guideline amounts. Are they allowed to do this? They say judicial discretion is broad. Is it fair? To me, it reeks of elitism and preferential insider treatment, and encourages insiders to try to skirt rules and laws that apply to everybody else. Can they do it? Yes, judges can get away with this.

(6) RAIDING THE ACCRUED CHILD SUPPORT ARREARAGE This is specific technique, which nullifies or minimizes an earlier financial order, involves double dipping on the child support order, so that future payments get credited both to current payments and arrearages.

DOUBLE DIPPING

a. After the divorce was final, the family court judge ordered a doctor/father to pay $30,000 child support arrearage along with future alimony payments.

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b. Inexplicably, the judge improperly reduced Doctor Dad’s support payment, and combined together both the child support and the alimony payments. He further reduced the monthly amount Mom would receive by onehalf — (from $2,400 to $1,200) and allowed that $400 of that reduced payment would count against the accrued arrearage, plus at the same time, the same payment would be counted as current child support.93 c. By combining together child support with alimony, and overdue past amounts with future payments, the judge avoided the original support order. They actually muddle all the figures together, as though the three categories of money were fungible. They are separate in law, and not fungible . Each category should be kept in separate accounting columns and treated separately for both collection of past due amounts and future payments.

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d. A year and a half after the original order was entered, Doctor Dad complained he was addicted to hospital pharmaceuticals and could not work. The statute required three years to elapse before modification of child support can occur. e. By counting Doctor Dad’s payment both as (a) payments on the arrearage and (b) a payment for current child support and (c) current alimony, the judge effectively made a retroactive nullification order. Overdue support payments, under law transform into property, so this order was an effective illegal taking of the ex-wife’s accrued property. It also effectively makes her pay herself her overdue child support. I tried, but was unable to persuade the mother to appeal this order, even after calculating the total amount she would be out of pocket over the course of her son’s minority. The judge’s improper re-calculation totaled $400,000.94 Plus the $30,000 accrued child support arrearage that ‘evaporated’ by the judge’s nullification orders. Mom suffered a dramatic loss of monthly income because the judge interchanged and co-mingled alimony and child support terms/awards, (at a hearing on modification) and he treated one as though it were a combined ‘family’ support order. It was clear that the judge was improperly accounting. He was crossing over apples and oranges, and in addition, that he suffered from bad math. The mother in this case weighed the cost of appeal, and the emotional trauma involved. If she were successful, she would undergo another (repeat) hearing in front of the same judge, and her son’s father threatened to seek custody of the boy if she continued to fight. She declined to contest the order and instead immediately acted to

93

The initial case was tried by a state bar president. It is a mistake to assume that just because an attorney holds a high insider office, they have the knowledge, experience, intuition, or ability to recognize or prevent judge abuse. Prior to taking on the case, I met with this attorney, who was genuinely distressed about the outcome he got for his client. He didn’t have the stomach to attempt to correct the order. Because of his status with the bar, he withdrew from her case instead of challenging or appealing the judge.

94

From the time of the modification order until the child reached 18. Of course, normally an order like this would likely extend through college, so the $400,000 loss would be greater.

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downsize her life. She moved to a smaller apartment, removed her son from his private school, and resolved to keep a lower post-divorce profile, in the hopes of making a less confrontational emotional environment for herself and her son. She came to me in crisis, after she ran out of funds to pay the State Bar president and lawyer Richard Uchida, who had represented her through this financial fiasco.

(7) IMPROPER DISCRETIONARY ASSUMPTIONS ARE SUBSTITUTED FOR THE RULE OF LAW This creates an erroneous calculation, in order to shift the support burden to the other party. Examples include: a. Ambitious projections. The judge makes or accepts an over-ambitious speculation about the dependent spouse’s ability to earn and support herself and the children, without (valid) “proof”. For example, she has never “earned” more than $10,000 a year in her life, but the husband’s projection-charts show she is ‘capable’ of $50,000 with her 10 or 20 or 30 year old college degree. The speculation is unfounded and inaccurate, yet the judge accepts the husband’s guestimate as ‘true’, and uses husband’s number to charge the mother with an unrealistically high income calculation. b. Gross or net? Or, the husband calculates the wife’s gross income as her net earnings, and no one questions it. That’s like valuing the house and including the mortgage! Valuing a car and including the debt! The expenses, costs, and debt are an integral part of the overall value of an asset. For a judge to take the gross number and overlook the debt or expense figures, puts a bogus value on earnings or property. c. Shared custody requires no child support orders. The court movement to 50/50 so-called shared custody has all the warning signals of the no-fault divorce movement in the swingin’ 1960’s — unknown and unstable negative consequences for the children of these parents. I also see 50/50 as an excuse for higher earning husbands to use all the tricks in this section to avoid paying a fair and equalizing amount for child support every month. It’s the new court battlefield. d. Future inheritance. Reliance that a wife who stood to inherit family money should spend her own separate future/ anticipated inheritance to feed and educate their offspring, if she elected to live at the same standard of living established during her marriage to the district court judge; a similar scenario did not to consider the husband’s trust fund receipts as income. e. Standard of living. In every case, judges completely evaded standard of living issues in all ex-wife cases; it routinely set up an insider to maintain the male judge’s “standard” by disproportionate distribution and support decisions, while his former family struggled to survive at a poverty levels. A 90 to 99% decrease in standard of living was not unusual for the women. In other words, courts ignore evidence, which might impair a “judicial life-style” for the Ol’boy after his divorce. Hawaii’s Judge Abe said to his clerk in chambers — she doesn’t need support — she’ll just get remarried anyway. Or sometimes, judges just think it. f. Low and zero valuation. The divorce cases of judges demonstrated manipulation of the fair-market-value (FMV) of assets. Using a low-ball value can bring about a grossly disproportionate property division (favoring the insider.) Some assets are valued too high, or fail to include the mortgage/liability. These inflated value assets were awarded to the wife. The low or zero value assets were distributed to the husband. When is the last time you saw a piece of real estate valued at zero? I think in these kinds of cases, one side should propose an ‘equal’ property division, and the other side should be allowed to chose which piece to take — the way mothers eternal have children divide and choose sweets. g. Discretionary abuse of mandatory requirements. Trial judges often use discretionary power to evade mandatory support guidelines, or they manipulate one factor (overestimate the wife’s potential, but not actual earning capacity); this is judicial abuse that systematically avoids correction on appeal. Guidelines are based on actual provable numbers, with the underlying public policy that children of similarly situated parents should be supported equally. That’s to prevent children from experiencing a drop in standard of living because parents divorce. h. Evasion of Pre-planning divorce. In every case, the trial judge evaded tracing the conversion of the separate wealth and assets of the wife, over to the judge-husband sole benefit. Sometimes the conversion was wife’s separate asset to pay husband’s separate debts, other times it was conversion of a joint asset into a separate husband asset. Regardless of the specifics, the general omission was for a judge to avoid dealing with the fraud aspect of judge-husbands who pre-planned divorce by manipulating assets.

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After divorce, almost every ex-wife (and the judge’s children) either received financial assistance and housing from parents; or lived below the federal poverty guidelines, regardless of their background and education. Apparently, judges fear it would make a bad image or might lead to institutional complications, if a judge could not make a fast economically recovery and maintain an affluent judge life-style following his divorce.

(8) THE INCOME STREAM

CHAPTER

Follow the income stream: be cognizant of the marital income stream as it is the source of ongoing support and wealth. A wife with four teenage children in Concord was awarded the family house, but no means to pay the mortgage, as she had always been a stay-at-home-mom, and was unemployed. The husband got the marital manufacturing plant in Manchester — so he got the marital income stream. It was just a matter of time until the wife had to sell the house to foot her share of the teen’s support and college bills. Once you are rootless — without a house — the rest of your economic foundation and personal security can crumble. This destabilizing effect is often permanent and longstanding.

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It’s too bad that most Americans have mortgages95 — because the security of a stabile home for children makes a great difference in their adult stability. Judith Wallerstein, the longitudal social scientist, conducted the first study of the effects of divorce on children in America. Her research is traced in four sequential books, which detail social consequences on the breakup of families, and the many negative social effects on children when parents divorce. Her conclusions about the short-term and permanent effects on 167 middle class families in northern California represent a milestone of reproach about the unintended consequences of what judges do — to the rest of us in society. I’m referring specifically to the blind-sighted manipulation of property division and the lack of adequate support orders that pulled the rug on dependent families in the 1970’s and 80’s and ’90’s — as a result of a bar/court-sponsored national movement to make all divorces ‘no-fault’. The untested, unstudied long-term effect of judicial no-fault-divorce presumptions caused a nationwide epidemic in family stability. The negative impact on children continues to be highly experimental.

(9) TRACING THE SOURCE OF FUNDS FOR MARITAL ASSETS Our marital house was purchased with my substantial income and retirement funds (my husband contributed $0 to the down payment.) His pre-marital house from his third marriage was under water, and required an infusion of marital funds to close the sale. So division of our joint asset home during divorce was a combination of the judge’s refusal to hear about the source of down payment, and how Chuck manipulated the house closing to take sole title. She found that since he owned a home before our marriage, he was entitled to take this one upon divorce. [At the time of purchase I was angry that Chuck surreptitiously put the house solely in his name, so I signed, but insisted on a quitclaim deed of my share. Somewhere along the marriage path, he removed the deed from our home safe.] In divorce, the judge refused to consider any home-funding or funding facts on any real estate. She let me present written accounts of improvements that doubled the cost/value of the home, but then disregarded those, to rule there was nominal equity. She divided the nominal equity, then she offset my share with an order to repay an office phone bill (to the restructured successor law firm) — from the year before filing.96 In the end, my husband got property and assets

95

One fact that impressed me from my work for the Muslim PhD candidate was that Muslims do not pay interest — interest is sinful. A mortgage on a house must be payments without interest. Although the sales price may be higher, my experience is that Muslims pay off quickly, creating financial stability in their homes. Many Hispanic-Mexican families in Southern New Mexico live poorly — but without mortgages because their homes are inherited and mortgage free. It adds an additional $10,000 to $20,000 (or more) a year in discretionary spending, because these later-generation families do not have a monthly mortgage with interest payments.

96

I expect to be criticized for including petty details — so recognize that the petty-ness is the judge’s — in overlooking millions of dollars of marital asset-value, and to wind up the case ordering me to pay $171.66 to Chuck to ‘balance’ asset division at the end of the divorce. This is not only petty — but recognize it as the insider judge joke it was intended to be.

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of every kind — including home and business. I was awarded a chest and a marshy lot in Boscawen, and owed him a hundred dollars and change as an equalizing repayment. The Thayer divorce was the same pattern — the judge simply refused to hear testimony that traced the advance manipulation of funds and the husband’s pre-divorce planning (that converted the wife’s separate assets to marital property.) Two judges, same scheme.

(10) REORGANIZATION The judge husband-trick of reorganizing his separate debts to recast them as marital debts, while secretly planning divorce, is not different from embezzlement, or theft by deceptive taking, or other forms of financial fraud. But the judges in these cases don’t see it that way. They refuse to look. The purchase or acquisition of new separate property (after transformation of a spouse or marital asset to an asset he can access and control alone) is preplanning fraud. So refusing to allow evidence that traces the scheming of one spouse against the other is a different kind of contrivance — by the court. None of us were able to expose or correct this, but maybe someone else can be quicker to see the pattern and develop a trial method that boxes in these cunning guys, to hold them accountable and thwart the court-complicity in this unfair process.

Kids call this too bad, so sad. Judges claim they hold no authority to review what happened before filing, so the divorce fraud is never included in the case handling. But judges do have jurisdiction over tracing funds and divorce fraud, just as they have jurisdiction over the unethical insider acts and manipulations of officers of the court.97

SYNCHRONICITY At the ex-wives of judges conference, one political ex-wife complained that her high-powered divorce lawyer dumped her just before trial, and she couldn’t find a replacement. Her lawyer (Bill Brennan) told her he had been hired recently by a State Supreme Court judge to prepare for the judge’s divorce, so he didn’t have time to take Ann’s case to trial. By luck of the draw, Ann P. ended up rooming in a cabin with the ex-wife of that same Supreme Court judge. The latter discovered the hire-fire switch occurred a year before she had any inkling a divorce was underfoot, and a month after her husband insisted on estate planning her inheritance — with a new accountant. This CPA later figured prominently as the financial expert at her divorce (for the husband) where she lost her assets — which had been converted over to cover the husbands separate gambling and other debts. She also lost her house in an armed home invasion just weeks before the final trial. That’s a lot of facts in a short summary — but this stuff is more dramatic than television.

97

For a real fighting example of manipulation by multiple Virginia judges regarding improper conversion of insider party assets, involving a half dozen law firms, numerous cases, former partners, PETs, death threats, and millions in real estate and trust property assets, (involing one 30-day trip to jail and two trips to the Grand Jury seeking a special grand jury review) see the fight against insider dealing by one non-insider and former wife, Janice Wolk Grenadier, acting in pro se. It lasted lasting two decades and begins with Alexandria, Virginia divorce Case # CH 99 1253; and also http:// judgejamesclark.blogspot.com/2014/08/judicial-misconduct-sentenced-janice.html

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(11) EX PARTE FINANCIALS (FOR ATTACHMENT HEARINGS) An ex parte hearing is where only one-side wants to take an asset, and files to have the court act without notifying the other side — to prevent permanent harm to the asset. The goal may be to freeze, take, or award funds or assets, (in the possession of or belonging to the other side) ostensibly which will disappear or dissipate if the other side has advance notice. As an extra-ordinary tactic, the ex parte hearing frequently is used to plug the springs. They are inherently unfair because the other side does not know of the filing in court. To grant a hearing ex parte means withholding constitutional level rights from the other side. So the emergency has to be irreparable harm with no other solution. Practically speaking, ex parte hearings often are merely Insider favors.

CHAPTER

Ex parte means having the judge’s ear in private, with the opportunity to secretly influence the case and grab the assets from the control of the other side. Permanently? Often an indefinite period order has the same result as a permanent order [Note: an ex parte hearing should always be followed by a regularly noticed second hearing to re-do the taking issue, determine if it is appropriate to make it ‘permanent’.] So the first emergency order would be short-spanned — a week or 10 days maximum. That rarely happens, and by then, it’s an uphill battle to get the asset returned.

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(12) PRIVATE PAY FOR JUDGING I found in my case, I was ordered to submit all my motions and pleadings — not to the court — but to send them to the so-called GAL98 named by the judge. Then the BFF99 was to conduct mini-pre-hearings at his office. Then he was to make recommendations to the judge, issue contempt orders, fine me, make orders in the form of recommendations that were rubber-stamped. Then the judge would schedule the hearing. BFF did all this repeatedly. Excuse me? Who was this guy? As it turns out years later, not only was he the BFF, but he was the same guy who represented the judge’s wife in her court cases, and the same person who bought the judge’s law practice, because they worked cases jointly. They talked hours on the phone — but I didn’t know that til years later when I got the billing records in discovery in an ethics case. None of that was disclosed. That meant, with all those personal connections, the judge not only had a back door into ‘managing’ my case through this second insider, (who now had party-status) but he avoided direct involvement with the case motions-practice, the discovery process, the financial disclosure requirements. All done with a secret line of control. The GAL was paid from court-held trust funds, which in hindsight, were used to dork me. The court held funds were said to be my ‘security’ for my lost business interest. The BFF got over $30,000 for his socalled “judge services”100 and other attorneys appointed (for me for a few weeks/months) got $70,000 overall from the fund. My attorneys were each excused after a few weeks of service. (I had no other funds.) Chuck plus his four (free) new in-house associates ran up voluminous filings, but I had no free lawyers on staff, and quickly learned the insider’s edge of being able to sue people for free. An ordinary hourly-pay law firm couldn’t keep up with the avalanche of free-filings. Judges have the ability to address this kind of hard-ball litigation (ordering the perp to pay the other side’s legal fees is one way.) But they pretend not to notice. Other law firms do notice however, which is why most ex-wives of judges were unable to find any bar attorney willing to represent them in court. Repeatedly, in New Hampshire, this scenario led to one offer to help various court victims –The State Gadfly, Theodore Kamasinski. 98

GAL is guardian ad litem — a legislatively created position in certain types of family law cases, to allow the judge to appoint a legal representative to protect a minor child’s best interest, when the child otherwise is not represented in the litigation.

99

Text messaging slang for best friend forever.

100 This amount would have undoubtedly gone much higher, but I raised so many objections to this fleecing process — in pleadings and orally, that I suspect it scared the GAL, and he went quiet. The judge wrote a couple extensive self-serving ‘orders’ with pages of judicial dicta about what a great service the GAL did, how helpful he was, and what a good judge he was, but the GAL asked to be paid in full and excused. The judge ordered the former, but not the latter.

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Under New Hampshire law, it is well established that parties don’t have to pay fees for judges to hear their cases. 101 So a private ‘judge’ slight-of-hand circumvents that law.

(13) FINES AND COSTS UNTIL THE MONEY RUNS OUT In my divorce case, I was repeatedly fined without notice or hearing, (ostensibly for contempt of court, but really it was for making an objection and record.) The judge just ran a tab against the Clerk-held funds. The judge charging services and bills to my funds. One example was a $1,700 charge for duplicating a CD-ROM back-up file of the dissolved business client billing files. Chuck had the original files all along. That data copy was delivered with the bill, on the second day of the second trial — four years too late in the discovery process to be fully utilized by an expert.

THE BACKSTORY I started my law practice in 1987 when Chuck was still a U.S. Representative in Congress. When he lost the election in 1989, we became partners. For seven years. In the fall of 1996, he secretly approached four young associates and offered to sell them my share of the business for a fraction of its value. They negotiated for corporate cars, American Express gold cards, and other perks.102 This was the hostile takeover of my life, as they and the office staff were all aware of he planned to sue me for divorce, but I was not. Life was still connubial at home, although I had been told to manage a satellite office that had some problems. Of course, I was aware my husband had ‘personal problems’ but I thought they related to politics combined with a wandering eye. (He suffered from being excluded by party politics from entering the Governor’s race.) I was clueless about the impending loss of my business, or this take over and ousting from my law firm, or especially that my husband was pre-arranging his fourth divorce and had elicited help from outside attorneys, our staff and others. He was running a campaign of a different sort. The $80,000 ‘sales price’ generated from the young associates was a grossly devalued partial-price.103 The judge ordered that money (plus another $20,000 payment from Chuck)104 to be held at court by the Clerk — ostensibly to keep safe funds to pay for my interest in the law practice after establishing the fair-market-value of the old business That would happen at trial. Right. In the meantime, the judge very informally awarded me temporary possession of our marital home, (he said until trial) with Chuck ordered to make related payments as my ‘temporary support’. The judge said I was to open a new solo law firm with several of my existing client cases within two weeks. My staff expenses were to be paid from funds already designated as mine. All in an ‘emergency’ chambers conference less than two weeks after the sheriff showed up at my door, less than a month after Chuck just disappeared. Chuck tried to get his newly restructured firm to pick up his ordered payments, and naturally, they balked at paying me out of ‘their’ business revenues and funds. The temporary support payments largely stopped within a month, and then more of my funds got used to pay my staff & office, child and personal expenses out of the revenue of handful of cases the judge told me to take at that secret hearing. Each payment, at the end of trial, was ordered to be “offset” by any asset I might be entitled to receive. Chuck and the other

101 In re Estate of Henry Dionne, it was found unconstitutional for part-time probate judges to make clients pay them $175.00 to hear will and estate cases on the judge’s days off. The state Constitution provides citizens are “entitled … to obtain right and justice freely, without being obliged to purchase it.” 102 The ‘kids’ were two females, two males; one set married to each other. They were all recent law school graduates, two of whom I mentored. Two were from poor unconnected backgrounds. Only one had resources and traditional family background, and I suspect that’s why he left first, both from the new firm and from his marriage. The rest were star-struck at the amazing and unearned opportunity Chuck offered — to become equal partners with him for a modest discounted price, (an expenditure which they didn’t actually have to pay, but could just sign a note.) They formed the wolf-pack that was allowed to “intervene” and carry out my divorce. 103 If my CPA/IRS expert had been allowed to fully testify, the FMV of our law partnership included roughly $3.3 million in funds, fees, trust, WIP and liquidated contingent cases. I had offered to settle for $600,000 plus the house with mortgage. 104 Of course, this expenditure from marital funds was never accounted for in the marital estate.

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law firm sought repayment of a variety of costs, including firm expenses the year before the judge dissolved it. There were other offset costs, including repayment of support. The pool of money ‘in trust’ was like a moth to flame — the judge didn’t stop granting payment orders from it until, six months later, it was gone, along with almost everything I had worked a decade to accumulate. I think of it this way: the judge distributed the spoils of war to the winners. And he established winner rules, before the case even got underway. To underpin later his rulings, at the first secret hearing the judge pronounced I was not an owner or a partner of my law business, rather a mere volunteer.105 Because I didn’t draw a salary, he said my partnership interest was only a ‘marital’ one. So I am not being factious when I use the misnomer, ‘the little woman’ in some narratives.

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As I look back, the excessive judging processes were so stacked and layered against me that this particular judge was simply double-insurance. In the end, I got nothing. As ‘punishment’ for exposing case corruption, the bar took my license and my livelihood. It was long and protracted, consuming more that a decade of my energy, and still comes back to haunt me. The impact was life altering. I can joke now that this was one of those so bad, it was good cases. I learned a lot from this case. The experience took me from a national political fast-track to the middle of ghost town in the high desert in one of the driest, most barren spots in America.

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It is now a quieter, kinder, and more reflective life that suits my nature. I have come to terms with God’s plan, and that he gave me both a good legal education, and the work I needed — to perform a higher calling than practicing law, or being rich or famous, or perhaps political and powerful. I spent the last five years alone in the desert –in a dead end valley at the end of the earth. There’s something about being in a brutally hot and barren desert that helped clear my mind and toughen my body. It eased my pain and brightened my purpose. The tricks I describe, which caused me so much angst, loss and sorrow at the time, softened into the muted colors of desert sage and became background for writing. I learned to forgive, although I probably will never forget. It strengthened my natural inclination to help people, especially innocent people injured and struggling for their existence in the tangled forest of judge and attorney guerilla practices. It is a new American jungle. Not every court case is like this, thank God, but for those unfortunate enough to become entrapped in a nuclear winner-take-all case — it represents the imperial authority of what America’s founders feared about judges.

The Judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric.” Thomas Jefferson, 1789

(14) GIVE WITH ONE HAND, TAKE BACK WITH THE OTHER As a financial theme, the process of double-dipping to pay yourself, demonstrates how a judge can give financially with one hand, but then take it away later with the other. Oftentimes, this is an illegitimate act, done by improperly converting the “character” of an asset. Or it might occur from a so-called ‘accounting trick’ that pay ‘joint bills/debt’ paid only from the separate funds of one. For me, that initial $100,000 held by the Clerk of Court, became the financial lifeblood of the judge’s later orders for a special appointment and other case-funding. I believe that money was put into court, and from the start the idea and practice of the court was to dissipate it, leaving me with no payment at all for even my so called marital interest in my business. In the end, the judge ruled I got nothing and actually owed several hundred dollars “back” as repayment some pre-filing marital cell phone bills. It was all very creative manipulated judging, and a kind of ‘legalized’ theft that left me overwhelmed and underwater. 105 Remember, this was the same private, no-record ‘emergency’ chambers-hearing that handed my law partnership interest to the four kid attorneys standing in the next-door courtroom. So I got summarily devalued to a ‘marital-only-property interest’ two weeks after my husband’s disappearance Thanksgiving eve.

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The special appointments required me to pay for judge services (from a private attorney I did not want.) The special services were sneaky, and designed to create low-ball value, (and for the case to proceed without an independent assessment of the worth of my partnership/little woman interest.) The judge’s special appointment saddled me with a back door mole (to keep the judge and other side informed about my activities at home, and revenues and receipts in my new court-mandated solo law practice.) It also seems to me now, that if one gets forced into court, it is the judge who should do the work of hearing issues and trying the case. Here, although the judge reached out initially to assume control of this particular case, his first order of business was to slough off most of his job to another person that I had to pay.106 Over a third of my funds in trust went to pay a stand-in fact-finder. Those bills would have been much greater, but I dug in to fight the ol’boy rout. While the judge’s BFF didn’t get to quit, he stopped running up Guardian ad litem bills. Another example: I observed a hearing in Taos, where the judge, after issuing a contempt order, ordered the defendant to open his wallet to show the judge how much cash he had. That became the amount of the man’s fine.

(15) MIRROR-IMAGE ISSUES WITH INCONSISTENT JUDGE TREATMENT The following is a mirror-image analysis of the same issues, used to demonstrate how pro-active judicial bias brings about opposite results in the same case, depending on the status of the parties. This section teaches readers how to compare side-by-side, judge rulings having different outcomes for opposing parties on the same issue. It demonstrates one method to expose bias. This kind of judge behavior is not willy-nilly happenstance, although judges are never reviewed, scrutinized, or overturned for acting this way. I found that every corner of the legal system affirmatively avoids exposure or correction of this kind of abuse of office. To get out of an angry mode, (being treated unfairly normally causes a gut level reaction) it is essential to systematically deconstruct what occurred, if only for your own peace of mind. This takes time, but over the life of an insider-case, there are almost always mirror treatments of the same issue. A judge trying to hide bias,107 will handle different incidents (of the same nature) inconsistently within the case. Because the rulings are based on who the judge likes, (or wants to punish) and who is supposed to win the case under Insider club rules, there will be inconsistencies and illogical parallel treatments. Look at the whole case and compare how generic issues were handled. Make a grid, and label the parties and issues. Grade each common or similar issue/incident in a separate column, then with a plus or minus sign. If the signs consistently flow for or against one party, (by twisting the rule), then the judge is likely acting from bias.

A JUDGE MANIPULATED DEFAULT Although mirror issues happen at different times over the life of a case, as an example, I use one law-issue from my first trial, because so many parallel inconsistencies occurred in a short, nine-hour period. For me, one was fatal; for the other side, one went unnoticed; and a third was properly handled with a week allowed to cure the defect. Three occurrences, each handled differently. The financial ramification — being defaulted at trial and therefore receiving nothing from my marriage — are implicit. It is a classic example of excessive judging, where the winner takes all. At final trial, Judge Coffey initiated several breaks, where she let the bench and went out of the courtroom, leaving everyone waiting. She was going to consult with someone — I suspect JNad, who was recused from the case, but had 106 Most of the underlying corroborating facts didn’t surface for months or years, and will be explained systematically, as tricks process unfolds in detail in later sections. 107 It is debatable whether a judge like this knows down deep that he or she is biased. They tend to have long-time images of exclusivity — that they have been ordained to be above ordinary people, and a different standard of behavior applies to them. I suspect the best wake up call for imperial attitude is to stand for criminal prosecution or legislative impeachment.

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appointed her and moved the case to this far away courthouse. After the second break, the judge retuned said she saw something in the file. She then set up my default. She initiated and disqualified my legal representative.108 a. My brother Greg had flown in from Ireland to be my legal representative. He appeared as my counsel (without me) on the first day of trial mid-September. b. Six weeks earlier in August, Greg had filed an appearance in court on the necessary forms, registering to be my legal representative. The judge scheduled an August hearing. Greg appeared, as did Chuck, who contested Greg’s appearance and cross-examined him on the stand about his ‘good character.’ The judge ruled that Greg was accepted by the court as my legal representative. c. Greg subsequently filed several pleadings, and twice appeared in court on my behalf. d. But at trial, the same judge initiated, then ruled that the court appearance form Greg filed six weeks before was defective. She said it was a photocopy, not an original signature of a notarized oath. e. She ruled that Greg was now ineligible to represent me, and she removed him on the spot. f. Then she moved on to initiate a default against me for not being present or represented in court. g. This occurred morning #1 of a week-long trial.

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h. The court had failed to issue any written “notice to appear” or “subpoena” or other order with a date and time requiring me to be in court. The trial date and time was just announced in court six months earlier, with the oral pronouncement, “the parties shall be available for trial the week of September 15th….” That was the entire trial notice.

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i. There was no requirement at law for me to appear that day, as long as I had my legal representative there. j. Because I was the defendant, my case in chief would be presented second. (Defendants always go after the plaintiff finishes.) Greg and I expected that would take one or more days, 109 so Greg had my first witness in the gallery, in case the plaintiff submitted early, Greg would start with direct exam of an accountant. Chuck’s legal representative110 also did not show up for the first day of trial. His attorney faxed a withdrawal form Friday evening — the last day before trial. But court rule prevents an attorney from withdrawing after a trial date is set, unless there is a hearing with good cause shown and judge’s approval — only then can an attorney withdraw. So here, the trial judge’s failure to apply the rule (overlooking Attorney Tarbell’s non-appearance) indicated the judge had laser-focused her mind on what someone perceived was a killer-opportunity to default me.111 After removing Greg and disqualifying me, the judge asked Chuck what he wanted, and he passed over a proposed order. She granted it — giving Chuck every asset as his sole property and then banged the trial closed. A few hours later, she reopened the trial — but not for me. While at first blush, this example does not line up as mirrored judge treatment, it actually is. Closer review of the facts demonstrates a biased outcome involving the same issue — the attorney appearance form filed in court. It also demonstrates blind-eye favor for one side, and negative activism against the other. Here, the judge initiated and manipulated a court rule to achieve a directed purpose — my default.

108 In New Hampshire, there is a common law and a statutory right for a citizen of good character to represent another in court. The Bar has worked to limit this right, but I had been using a non-lawyer (my brother Greg) as my legal representative for about six weeks prior to trial. It’s not hard to figure out which party was the insider in this case. This kind of law-helper is sometimes called a ‘next-friend’ and in some states, a paralegal. In New Hampshire, it can be anyone of good character. 109 The accusation/ol’boy spin on my no-show in court that day (including questioning by TV host Greta Van Suskin) focused solely on where I was, if not in court, or why I wasn’t present for the first day of trial. That kind of questioning is diversionary. It will cause analysts to miss the legal elements and judge abuses. It’s blame-shifting. Those answers are interesting for gossip, and they actually relate to a later trick, but telling them now only clouds this analysis of what and how the judge abused her court authority, to reach a illegitimate outcome. To learn how to deconstruct judge tricks, it’s important to separate out the wheat from the chaff, and the titillating from relevant facts. So narrow the focus, and skip the adjectives, speculation, and all premature conclusions for an effective thinking-process. 110 My educated guess was Attorney Tony Tarbell was hired but not paid with funds — but rather with a friendly trade of legal services. So good cause could not be a claim of inability to pay. Regardless, Tony was still the plaintiff’s attorney of record on the first day of trial. 111 See also the following section on PPIs, where picky personal issues are blown out of proportion to retaliate or act negatively against the outsider.

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A THIRD APPEARANCE FORM ISSUE — THE TRIAL IS REOPENED Five hours after my trial default, the judge reopened the trial. This time, she handled the same mirror issue a third way. At Chuck’s request, she ‘reopened’ late in the afternoon, again without any notice to me. The trial continued with a new plaintiff attorney — Tim Robinson,112 who did not file any appearance form at all before he argued a new claim — seizure of my bank accounts. The same judge gave Robinson until the end of the week to file his appearance form in court. (That’s called time to cure a defect.)113 The purpose of reopening the trial was to order an attachment of my separate bank accounts. All had been opened postseparation, and were related to my new law practice. The trial judge conducted this after-hours ex parte hearing and issued an order to freeze my assets. It appears the intention was to freeze the funds of only one client, but the poorlyworded order, froze all my law office assets.114 So line up the factual details, assess the relative impact, and then begin scrutiny and analysis of how the judge handled a mirror issue for each side. The relative harm. What was the harm to my team? Here, it is apparent that what the judge initiated against me was a fatal act — fatal because the judge’s act led to the loss of every asset in the case. Fatal because it ‘killed off’ all my court counterclaims and defenses. So that is the extreme end of the possible result spectrum. When a few hours later, my brother told me what happened, (the judge also recorded this trial on video, as a test of the new court video system, so I got to view what happened for myself) he was summary in his opinion: “it was like killing a gnat on an elephant’s butt.” Still, gnat or not, dead is dead.115 But what about the impact of the other side’s two violations — how did the same two rule violations affect their case? We still need to assess that. The act of ignoring the mirror violation for the plaintiff attorney was the most lenient treatment a judge could give. She avoided the infraction. (Allowing a few days to cure is in the middle of the spectrum.) So relative risk of harm from the no-show trial attorney, and the late afternoon replacement attorney, involved zero harm or impact on the plaintiff’s case. I’d score this relative risk assessment at plaintiff, zero; defendant, maximum.

TIP: Write and rewrite the facts. Make a chart or spreadsheet. Then take out all the adjectives, conclusions, and opinions. Start your analysis with a bare-bones summary list of mirror facts. But wait — there are several other factors to apply. By weighing the reasonableness and relative outcomes in this set of case facts, other law-error conclusions may pop out.

112 Robinson, his wife, and two other young law school grads were the four new associates that took over my reconstituted law firm. Each had been a law clerk for D&D. 113 The standard a judge must follow for allowing a cure is a reasonable one, based on the circumstances. 114 No follow-up hearing was ever scheduled. The bank applied the ‘freeze order’ to all my bank accounts. The freeze lasted three years. Approximately $40,000 (representing my law office payroll, client trust funds and operating account) were frozen without notice, and although Chuck never gained control of my funds that I am aware of, he did plug the springs again. The frozen funds eventually disappeared, without notice, hearing or accounting. Maybe he took them after all. 115 This part of my memoire gets picked up again in later chapters, including the appeals. By now, readers have probably figured out I could be counted on to appeal, although I only intuitively understood what happened at trial — the exact fallacy in logic and the parallel judicial handling largely escaped me at the time.

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THE CURE TIMES The time the judge allowed to cure the photocopy mistake was zero. Let’s take a look at that. The technicality of filing a photocopy document instead of an original signature. It was a notary document attached to the appearance form. It was a nominal clerical error, easily rectified if the court had allowed six hours travel time to go and return with the original document. But because the order actually was based on the August character hearing, arguably the documentation was merely procedural, and the appointment of Greg as my attorney, was a vested right.116 It was not unreasonable for me to hold an expectation that Greg’s appearance was intact. Further, had Greg been allowed the same 5-day period of time to cure that Attorney Robinson later was allowed, Greg would have found and submitted the original signature the next day, before the defendant had to put on her case. After the judge disqualified Greg, she allowed him about 45-minutes to locate and produce me at court. He was unable to call me, and in any event, I was a three-hour drive from the courthouse. (Remember how JNad finally was recused from the case but then specially assigned it to a distant courthouse? It turns out, his physical office was here in Rockingham. So much for him being removed from my case.)

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Now, let’s compare the other cure time(s)117

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The Attorney Tarbell appearance/withdrawal form error was ignored, so there was no cure time involved. Afternoon Attorney Robinson was given until the end of the week to file his appearance form in court, so that is an indicator the judge had an awareness of what a reasonable time to cure was — namely five days. My brother Greg was given zero time. So the distinction between the judge’s handling of the same issue –falls to one conclusion that it was the status of the parties. Two were attorneys; one was not. Courts punish outsiders.

ASSESS THE RELATIVE HARM AND BENEFIT Or maybe the critical distinction is the relative harm — what was at risk from the judge error in rule application? The defendant’s relative harm was extreme — fatal, in fact. The plaintiff’s relative harm for both first and second infractions was none (for each.) But the plaintiff’s relative benefit for the second was limited only by the amount of money in my three bank accounts, and for the first — the total assets derived during our marriage (about $3 million.) This example demonstrates how a judge can create a hyper-technicality as an excuse to initiate a fatal blow to one party, while bestowing a windfall on the other. Here, is was by overlooking a categorically similar, but arguably greater rule violation. Here, a default-judgment was based on, at best, a nominal defect. This kind of unbalance in case handling and administration gets passed off as mere judicial discretion — yet the rule-based requirements for court appearance forms — falls outside the limits of discretion. 118 The cloud of authority is like the fog of war — an excuse for abuse.

116 It is a law maxim that procedural defects should not be used to deny substantive rights. 117 Pulling apart the tedious details is essential. It’s not a myopic or neurotic fixation– but rather learning a pattern of linear deconstruction, and can be used in any kind of case. 118 On appeal, this was not found to be arbitrary or capricious behavior. Justice Broderick especially commented that the judge had “an arsenal of weapons” at her disposal, so choosing “a nuclear bomb instead of an arrow” to punish Defendant for filing a photocopy court form (without time to cure) — he found fell within the purview of a judge’s discretion. The appeal court ordered a new trial — but only on property division.

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Summary: this deconstructive analysis process is work, and needs to be done repeatedly for each issue in an insider-bias case. There may not be mirror issues, but certainly plan to deconstruct all of those. After a while, this process becomes ingrained, and judge abuses will pop out as they occur. Hang in there, and even if you don’t win, you will know if you were unfairly screwed. As opposed to fairly screwed?? If this analysis doesn’t work, maybe you are wrong and the judge is not biased. Everyone is wrong sometime. Everyone loses on occasion. This exercise is to help you assess whether your loss was fair or not, and then to move on to the next stage in your life.

48 TIME OUT FOR PRACTICE TIPS ON DECONSTRUCTION ANALYSIS

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It is time to take time out of all these narratives — to suggest some practice tips — how to deconstruct what is suspected to be a biased order. Every case and circumstance is different, so it is important to try to be as objective as possible in your analysis, to see if a judge problem exists. If it does, whether or not the bad ruling stemmed from bias, mistake, mismanagement, or cronyism — you also will need to know or be able to look up the rules and standard practices of court, or you will not be able to tell if they are being ignored or applied against only one side.

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PRACTICE TIP for beginning an analysis of judicial bias Make a plus (+) and minus (–) chart

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1. List each anomaly at hearing or in an order. 2. Identify each irregularity or special handling in judging and court procedure. 3. Compare the anomaly against the proscribed practice and standards at law. Both judge errors and judge tricks begin to jump out. 4. Design a chart, listing the fact in one column and the corresponding law, rule, or standard procedure to the right. Put down where the fact was gathered from — a document or court record or audio. 5. Then, in a new column, annotate each anomaly with the name of the “beneficiary” of the favor. 6. If the disparity between what happened in court, and what was supposed to happen (at law) continues, over time, the date may demonstrate a progression sufficient to demonstrate judicial bias. 7. In addition to the chart, begin a search/inquiry for confirming personal associations between the players and judicial favoritism. 8. Individually, each anomaly may seem relatively minor, but the compound tricks may establish a preliminary pattern of judicial favoritism toward one and violations or retaliation against the other.

Small Pattern One: Picky Personal Issues (PPI’s)119 Biased judges often chose personal issues to get picky about. Something to dress down the outsider, to establish the judge is in charge no matter what, and to initiate a sense of shame and demoralization against the non-insider. Especially, watch for this at the start of a proceeding. Look for alpha acts and language by the judge. Note the tone of voice, eye contact and any extra judge commentary.

119 PPI’s (pronounced pee-pee-eye-z) (Say it fast).

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This is about a judge’s demand for unconditional r-e-s-p-e-c-t from the person being targeted.120

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If the case is an insider set-up, the judge will wants to get the victim’s acquiescence and acceptance of his bias early-on in the case. The judge expects an outsider to defer and grovel, even when the rulings are clearly not according to law. Insiders already know this. If the victim initially fails to show total deference, that attitude of challenge could jeopardizes the insider-outcome later, and publicly expose the judge. It sends a “danger” message to the judge. So a biased judge will make a point to insist on ‘court decorum’ and court civility, but more importantly, to uphold what the judge perceives is a need to intimidate and break the spirit of an outsider. That includes destroying the defendant’s ability to make a peer-levelpresentation of legal issues.121 Non-insiders are not perceived to be the judge’s intellectual peer in a courtroom, so often this kind of judge expects a noticeable demonstration of deference (complete with the artificial civility and groveling) by the non-insider in court. That’s was a common component in New Hampshire cases like Bonser, Thayer, McMinn, Blaisdell, and Douglas and a myriad of others — cases where judges and the bar went after a pro se who could afford to hire a lawyer.

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Remember, all this comes from English law practices. Think of Ann Boleyn and the rest of the ex wives, who waited in the Tower for their appointed time to do the queen-walk down to the chopping block. Then, they were expected to graciously turn to forgive the axe-man, then do a queenly kneel to put a coiffed head on the block to be chopped off. That is what these guys want. So, what if you are a judge’s intellectual equal? Can you present evidence and persuasive logical arguments to the judge, to try to win your case, as though you were a player in an unbiased platform? Can you argue your case without having to grovel? Are you given a fair and equal amount of time? Are you allowed to object to judge rulings that violate the rules? Or law? No, you have slipped into the nobody class of people in court. And there is nothing you will be able do about that. In cases where court insiders already understand that a pro se cannot be allowed to win, the “show” of making the nobody party grovel and accept judge authority, will become even more important. That’s when contempt of court allegations and illegal judge actions can surface Another trouble is, when the earlier techniques (to provide an insider case outcome) start rolling along, the judge will see a defect, flaw, or potential ethhics exposure in the earlier orders. Once the judge recognizes this case will go up on appeal, the judge may need to patch up those earlier mistakes, (to appear more reasonable on paper and to evade reversal.) Written orders will become longer, with more rationalizing self-praise for the judge and cronies, and more recrimination, name-calling and ridicule of the target. Once, out of an 18 page hearing order, JNad spent 8 pages praising himself. Congratulating himself, and trying to make a written record of what a good job he and his BFF had done, despite my trouble-making objections. But, it’s also why PPIs work so well to put the outsider, (who arrives not knowing the futility of his efforts) to force a dissenter into a ‘proper’ judge-deferring posture of acceptance of whatever new rule the judge initiates and orders — without question or objection.

120 Those of a particular age and experience will recall the next bars of this Aretha Franklin song go, “sock-it-to-me, sock-it-to-me, sock-it-to-me, sock-it-tome”. Remember that. 121 I once saw opposing counsel move the court to require me, as a pro se, to ask myself questions on the stand, then to answer myself. It’s hard to list all the ways courts belittle and ridicule to make the targeted party into a nobody, without respect and equal status in the courtroom, but see chapter 2, Bad Words, and chapter 5 on nobody classes of people.

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American women don’t do ‘queen-walk’ well. That’s why we had a revolution and passed a Constitution, and organized for decades to be allowed to vote.122 American style is more equal, and we are feisty enough to think (or know) that we can reason as well or better than these guys on the bench, if we set our minds to it, and recognize the need. Some judges have been there a long time, and are sloppy; they are not up to speed on the law; they don’t do math well; and they are often lazy and ill prepared. They are coasting along on cronyism and institutional power. Trouble is, in spite of all the above, they are egotistical and all powerful over you in court. Remember what Oprah said.

These indicators often are not a considered a basis for appeal, and taken individually, they each probably do not make grounds for recusal.123 It is only in the cumulative that all this petty come-uppance will make sense and carries weight. Here’s a checklist of petty points judges use to teach judicial deference: Racist, sexist or demeaning comments Liberal use of courts rules by number and cases by name, without explaining the summary purpose for noninsiders124 Disparagement for not hiring an attorney, then for not knowing or understanding insider protocol Shorthand use of Latin phrases and doctrines in court; using Insider lingo to exclude outsiders A disproportionate reaction for etiquette rituals, including standing, groveling, and tardiness Making statements to indicate outsider motions/ arguments are a waste of court time Threats for dressing inappropriately Small errors in pleadings, such as a wrong caption, misspelled word or other typographical mistake, used to deny, dismiss, or not accept a defendant document Derogatory personal remarks, which also may be sexist, racist or insulting Acts of intimidation or exclusion Threats of fines, sanctions, and incarceration not warranted by the act Calling a civil defendant a criminal, or similar (threatening) mischaracterizations Especially when manipulating a case outcome for an insider, there is a need to establish control over the other party as early as possible, and to establish a pattern of acquiescence to all authority.

EXAMPLE: THE GAL TARDY FINE I was ordered by the GAL to attend a conference at his office, requiring a three-hour drive to a distant and unfamiliar seacoast town. I phoned en route several times for his directions (this was before GPS) but still arrived late because of several bad turns. The GAL did a scathing dressing-down of me in front of Chuck, his lawyer and the four hostile-take-over attorneys, then ordered me to pay a substantial fine to compensate seven attorneys (himself included) for waiting time. He also billed against the court fund for this meeting. He calculated my fine by adding up their billable hour/rates. The others had all arrived together, (no one told me what that time was, or if they had been similarly tardy.) After lunch, Where my staffer Karen and I stayed in McNeill office, the GAL and entourage arrived 45-minutes late for the afternoon session. The GAL failed to notice that all were late. He just said, they got hung up at Rotary. 122 That was the old days, when major changes required ratification of a Constitutional amendment, not a Supreme Court decision. 123 Recuse is a legal term used often in later chapters. It means disqualified from hearing the case because of self-interest, bias, prejudice or conflict of interest. 124 Never having practiced criminal law, I was unfamiliar with some case terms used as insider abbreviations in a civil case. The first five times I heard Alberico-Daubert I thought it was one foreign word. But the judge (a former prosecutor) initiated this phrase so early and often that I realized she was creating an issue for later. I inherently understood it was an upcoming set-up for trial. My deeper sense was that the judge was manipulating a way to help end the case, since I was the only party that had identified experts and witnesses by the court deadline. Ambrico-Daubert was a way to remove my experts. This stuff becomes intuitive.

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Now, a quick analysis suggests abuse — Harshly sanctioning one attorney, while totally blowing off a parallel infraction by seven attorneys on the other side; Overlooking his own later arrival at the afternoon session; Using gender-laden, chiding terms of rebuke; the obvious 7 to 1 ratio contributing to an ongoing display of gender dominance; The reference to Rotary — a member-only meeting where the boyz went for lunch.125 The subliminal message was “we all belong” and “you weren’t invited.” [That’s not a Rotary message, but attorneys are a group unto themselves.] The “insider/outsider” dynamic of assessing a severe financial fine for ‘outsider’ tardiness –but just against a female. I was to pay the other attorneys directly for ‘wasting their time’ to this was taken out of my court trust fund. The underlying message was insider attorney time is valuable — but outside (female) attorney time is not. Consider also the questionable authority about whether a pseudo-guardian ad litem had legal authority to be an imitation court. This pseudo-court, (not authorized at law) was used to circumvent discovery procedures, and order institutional special practices with the force of law.126 A pseudo-court where I was questioned by everyone about any topic (ranging from property division to spousal support) by the GAL and six opposing attorney — all without adhearing to the discovery boundaries established by the rules of court. The ‘informal but mandatory’ examination wasn’t mutual. The GAL also questioned how I was running and billing my new law office, and demanded full review of my client case files, billing, collections, accounts receivable, and separate bank accounts.127

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A Guardian ad litem is not a judge or even a quasi-judge; (it is authorized, and holds authority only by state legislative statute.) The legislature made no authority to hold judicial hearings. GAL’s are not bestowed with judicial contempt power, or law enforcement power. Nor can these coercive-powers be delegated by judges making the appointment.

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This section continues with eight more financial tricks from ex-wife of judge and client cases.

(16) ZERO VALUATION One technique to avoid dividing real property between the parties was when the judge undervalues the assets the insider receives, or alternatively, overvaluing the property awarded to the non-insider. This how judges evade the statutory equitable distribution mandatory laws of no-fault. To an objective outsider, the results are not credible, but even on appeal, even a blatant and false judge finding (that mis-values an asset) will almost never get reviewed, much

125 Rotary is an international service organization dedicated to performing community projects and good works globally. It promotes camaraderie among professionals. About 10% of Rotarians are lawyers or judges. Maybe it’s a good influence on them. 126 In 1961, the most popular daytime television show was Queen for a Day. Some lucky woman was given a scepter and crown, and was draped in a furtrimmed floor length cape. This is kind of like that — judge for a case. 127 The GAL followed up his seacoast meeting with an in-person inspection of my new law office. The GAL inspection included questioning my employees, looking at my law client files, new bank accounts, and client billing records. He also ordered members of my staff to report to him with follow-up reports.

The information gathered about my billings and accounts receivable later incited Chuck to try to intervene at the final divorce trial of one of my clients. He strode into her divorce trial with a Motion to Intervene (to take my clients marital property proceeds.) He claimed he owned the fees I charged for her divorce. That ‘case’ evolved into several other court cases and eventually resulted in a professional conduct complaint against Chuck. Later, he offered my client a free attorney, and that complaint twisted to become a complaint against me. I found I was reverse-sued by the former client. That became the case underlying my disbarment complaint. If anyone out there thinks the stuff on the Good Wife series was made up — I can assure them, it was not. The Machiavellian practice of law is more complicated than a Chinese puzzle box. It operates in four dimensions, and is extremely wearisome, except for the kind of personality that thrives on creating this kind of chaos. I think that describes a sociopath — but others may just find it a unique addictive personality trait. Can an entire institution have a personality trait?

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less corrected.128 Trial Judges know the odds are stacked that they won’t be corrected on appeal. There are two reasons used — (1) because this gets categorized as a so-called discretionary area of judge power129 or (2) the court’s splinter the bias issue into small segments, and find that each little splinter is merely “harmless error.” My re-trial (after appeal) involved dividing five real estate properties acquired and/or paid for during our marriage — but on the title, Chuck listed only his name. All five property values were disputed, but the trial record contained undisputed evidence of purchase price, assessed tax value, and actual payments and expenditures made to and for the property. Under any valuation method, each real estate parcel had some value. For division, each was mis-valued (each with a different manipulated judge ruling.) The overall strategy was to de-value each separate property to zero that Chuck received, and then award the so-called valueless properties to him.

THIS SAME TRICK IN REVERSE IS OVERVALUING WHAT IS A NEGATIVE ASSET Both the so-called assets I received were actually negative value. One wasn’t an asset at all, but a liability — the satellite office lease from the old law firm. The judge failed to note the liability aspect, and pretended it was an asset-award. This also happens where real estate value is under water, over over-appraised, or has a mortgage and other payments attached that the judge fails to make provision for payment. It’s somewhat like awarding a wife a life insurance policy on husband, without premium payment provisions. Other examples previously mentioned include the Wells Fargo-Helock houses, the marshy real estate, automobiles with substantial payments, and an office lease — a debt obligation (not an asset.)

DICTA AS “PROOF” Dicta is the legal word for extra words a judge inserts into a written order to provide explanations for what facts and circumstances justify the ruling. In many of these perverse outcome cases favoring insiders, the judge will systematically ignore contrary facts, witnesses and testimony, to avoid all evidence entered by the losing side, no matter how real or credible. At the same time, judges incorporate their own language (and selective testimony) into their dicta. Judge dicta is the justification for the outcome. As in the case of the Belle Isle nuns, Judge Coffey had to reverse earlier rulings, but tried to create a legal-sounding rationale for a biased final outcome. Cases with insider-favoritism and blatant bias use dicta to patch up a lack of logic and reason. In Belle Isle, Coffey opined in her dicta that the Nun’s original filing was criminal. That’s not uncommon — to allude without specificity that the loser is somehow a criminal. It’s a means to distort and explain why the case outcome is so harsh — and it implies an unexplored criminal act as the reason why the losers deserve to lose. There are few in the system that will stand up to this judicial dishonesty. Kudos to senior Boston Attorney Herbert Horgan, who despite well-founded fears, fought back for his clients on appeal. His out-of-state status contributed a small degree of protection from Judge Coffey’s wrathful dicta, but when we spoke, it was clear that he was cognizant of his exposure to bar retaliation.

128 The appeals trick is to refuse to review ‘discretionary’ rulings of a trial judge. 129 The appeal chapter shows readers why the appeals process does not do what the public thinks it does. Appeals process is sometimes used to forward a variety of political and institutional agendas, in place of a true review of judge error and abuse in the application of the rule of law.

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(17) EVADING THE FOF&ROL130 If you find yourself asking, how could the judge have completely overlooked or disregarded testimony, exhibits and experts to arrive at this result? read on — You may not be out of line to suspect the judge threw the case. Especially with an insider and obvious cronyism involved, (which you have tracked using the analysis techniques described above.) These cases lack common sense and don’t add up. They feel unfair because they are. It is hard but not impossible to assess the strength, reliability, and soundness of your tangible evidence, witness testimony, and legal precedents and law. Tally how much of your evidence went unopposed, how many witness statements were corroborated or notcorroborated, and how many were contradicted or impeached. If you made a request and submit findings of fact and rulings of law, they will contain clues of the judges thinking. If the judge declines to address your fof & rol, that is telling. He doesn’t want to organize or expose outcometainted judge thinking. Most telling is when the judge orders your fof & rol struck from the record. So no clear fingerprints are left behind.

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Look also for clues in the dicta. Does dicta talk about the evidence? Or about the judge’s personal thoughts, impressions, rationalizations, and excuses? Can you tell if the dicta trail suggests whether the judge ruled on facts and law, or on impressions? Impression is often bias.

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Does the dicta talk about case elements? About the weight assigned to each law element? And why? Or is it a cheap judge-shot conclusion, added to the order to protect herself later? Or to discredit you ( for example, as an unindicted criminal) if you take it up on appeal? Remember the Alicia Florrick adage — when the judge gets personal, you know he’s in trouble. If you can honestly say, as several of the ex wives did, that they had undisputed evidence; strong independent expert testimony; and undisputed or corroborated testimony, but it is never mentioned in the order — then consider whether favoritism deep-sixed compelling evidence, to make an unbalanced and pre-determined outcome. Make the decision based on the deconstruction analysis you have been keeping. A judge motivated by secret insider pressures will have to suppress your smoking-gun evidence for trial, disregard it in the ruling, or provide some unbalanced rationale — that will not compute or be logical and persuasive when deconstructed. Evidentiary rules and balances are supposed to prevent a judge’s flawed decisions about what to admit or deny; what evidence to suppress or allow. But a judge determined to order a particular outcome, won’t follow the rules properly; may just ignore all the evidence that opposes this predetermined outcome. Trial judges practice ultimate discretion. With that background, you can see how easily a judge can get away with deliberately and systematically devaluing marital assets awarded to the insider, for example. That’s why Judge Coffey’s order for offset is so suspicious. She issued an order that suggested a scientifically exact accounting: after offsets, I was ordered to pay to pay Chuck back $167.37 — representing the amount I received during the divorce process in overpayments for my legal fees and support. It was a precise figure to the cents — suggesting some tedious judicial bookkeeping had occurred. The exactitude was telling. This judge sat through nine days of trial and thousands of pages of expert valuation documentation demonstrating a range of values from $0 to about $4.5 million in total assets. Millions got ‘generally discounted’ with a technique that gave broad-brush-distributions to the husband. The judge’s nit-picking order down to the last 37¢ suggested that this judge (at the re-trial) had done a meticulous and detailed valuation and accounting. In reality the order bankrupt me, while Chuck walked with a multi-million dollar windfall in marital assets.

130 See Chapter One on Building Blocks, Findings of fact and rulings of law.

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Both trials were a sham. In hindsight, it is interesting that when my brother was my lawyer, I just lost everything I owned. When I had a team of experienced and smart lawyers (for the 2nd trial) I was left owing money back. Because of the judge’s new concept of ‘offset’ orders, I came out worse at the second trial. This fleecing isn’t an anomaly of my cases — but happens enough times that I feel compelled to warn the public about these practices and patterns. Insiders share ideas like these, at conferences, clubs, and meetings. They borrow from the cases where they lost. It’s a game that usually is played with other people’s money, or children, or homes, and assets. I couldn’t stop or reverse it my case, although God knows I tried.

(18) ERRORS IN MATH AND ACCOUNTING Remember to take a calculator to court. I once attended a meeting in a hotel ballroom with hundreds of pension fund investors seeking approval of funding from the office of the California State Treasurer Jesse Unruh. In just a few hours, hundreds of millions of dollars of public retirement funds were invested in private businesses and projects. The State Treasurer finally asked out loud how much he had spent? Amongst several hundred people present, no one was totaling his award expenditures. The same problem exists with property division and child support calculations in divorce cases. Different professionals do the math differently, so there can be wide discrepancies between the bottom lines. Don’t trust the judge’s math. Do the math. Personally. With a calculator.

(19) ROUNDING NUMBERS AND ESTIMATES Court moves quickly and judges like to move in percentages or large rounded-off bunches of money, because it simplifies thinking and order writing. They also are not good at math. The nitty gritty of overdue sums may lose thousands or tens of thousands of dollars or more through judge ‘rounding.’ If you are dealing in millions and hundreds of millions, the money is like the money in the board game Monopoly. Judges chose to be oblivious to the enormous difference their rounding down may make to the daily lives of ordinary and poor people. Watch carefully the rounding up or down antics in court. Using of fractions instead of dollar values. All accounting and valuation was ordered by the judge in fractions, not values. He ordered, the wife’s half of a new post-divorce tax bill will be covered by transfer of her half of the real estate asset. Generally, a loose, easy, non-precise accounting by the judge acts to devalue an asset down to the level of the claim. Inversely, the value of the claim can be exaggerated or overblown, or the judge fails to distinguish that only ½ the bill is the wife’s share — and even that is arguable, as the debt arose years before during the marriage. This is years later, post divorce. The net result is to deprive a non-insider of property previously awarded in divorce, despite statutes that prohibit modification of property awards. Watch for an order that changes legal character of a financial asset after the order becomes final. When judges just move in big, bunched-up orders with a lack of specificity, it’s easier to pass off extra and overpayments. I’ve seen this in forgiveness of earlier orders, and once in an unnaturally large award of nonspecified assets and funds. A later example — the Honolulu Advertiser — demonstrates this as post trial abuse.

(20) PROPERTY OFFSETS This was a new one for me. Judge Coffey, at the second trial after appeal, permitted my husband and the hostile-takeover law firm to offset my marital property division with expenses they back-claimed for their new law practice. The “bills” were actually intervenor-summaries manufactured for trial. By now, the ‘partner’ in the successor law firm were

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allowed to intervene in my divorce as parties. They asked the judge to order me to re-pay for months of so-called business and support expenditures, some going back a year before separation. They called this an offset. Instead of money, I was handed a thick packet of phone, computer, software, and personal item spreadsheets and it was subtracted from my divorce asset-award. Statutes provide for temporary support without repayment or offset. In my case, JNad had mixed business and support issues, at the first ambush hearing, where he announced I had no business rights. In the next breath, he announced I had two weeks to start up a new law practice (with nothing outside of my household support funding.) Three years later, the hostile-takeover attorneys did another ambush at the opposite end of the case — taking my so-called property award to repay support award. This meant mixing up — what at law are two distinctly separate funding categories. Giving with one hand, taking away with the other — not only violates the purpose of law, but acts as yet another back-door means to circumvent support laws. ‘Course, crossing-over two separate areas of law into one muddled combined-law outcome, becomes another fuzzy cover, wrapping a biased result in legal sounding language.

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(21) REPAYMENT OF SUPPORT

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This ties into the offset trick, but in some cases uses only support funds. There is no provision for repayment of temporary orders of support at law. When support is appropriate and ordered, a judge who subsequently orders the spouse to ‘repay’ it, he is acting illegally. Accrued support (money ordered but unpaid) changes to a property asset by operation of law. It changes ‘character’ by law, so to take support back would be to disturb a property interest. Remember the Doctor Dad who had a large child support arreage? The mother lost hundreds of thousands with this slight of hand judge maneuver.

PUBLIC POLICY ON FAMILY SUPPORT ORDERS Private support payments are like welfare or food stamp payments. If someone is entitled and qualifies for food awards, a judge cannot a year later, require them to repay the stamps they used the year before. Not even if, for example, they suddenly received an inheritance because a relative died, or they won a jackpot and became rich. An order to repay lawfully ordered support is improper. A who judge mixes classes of assets together as though they were fungible commits error in law. They are not fungible. Property division is a distinct class of asset to be divided. Support is another. The legislature set them up to be treated differently. It is a ridiculous but abusive exercise in discretion to give and take support using techniques to skirt the law. It’s why judges who ignore legislative policies and statutory framework in court, end up creating a private process inevitably filled with errors and injustices. But ignorance or violation of the law not enough (under judge conduct rules) to get a judge disciplined, removed, or the error corrected.

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(22) ARMED HOME INVASIONS Several of the ex-wives of judges131 experienced illegal armed home invasions. Common factors included: Crony judges acting (or failing to act) to prevent an armed home invasion. In each case, the judge/husband wanted immediate possession of the family home, (but prematurely and without a valid order.) That meant ejecting the little woman in residence. Timing of this disruptive life-altering tactic also interfered with the wife’s ability to keep defending in court. Sheriffs132 conducted a dramatic swat style invasion. They surround the home — complete with flashing cruisers, bullhorns and dozens of law enforcement. A law enforcement appeared at the door and said the family had to evacuate or be arrested. Each time, the wife asked to see a court order. There was none. For one, the new sheriff delivered a letter the day before, which implied a sheriff’s decision had the same effect as a court order, but of course, that’s not accurate. Sheriff’s don’t get to write court orders for contempt. There is no divorce statute requiring the families to leave their homes or be arrested, so this falls under those cloudy ‘contempt of court’ cases. No eviction process occurred. So whatever minimum eviction rights or procedures renters or tenants might have, were not followed. Elian Gonzales style, the armed home invasions just showed up without legal authority. For one, the sheriff brought a locksmith who drilled open the front door. Another, a team surrounded the house with military assault weapons, and just used force. Two wives of Supreme Court judges experienced a military-style assault, with a dozen uniformed and masked ninja-figures and cruisers, and drawn assault weapons aimed at them. After the family was forcibly removed, the judge-husband was then given possession of the home and the judge avoided further hearing. A startling element was the degree that some law enforcement officers (and other relatively low-ranking community officials) are willing to cooperate with the Insider to give the appearance, but not the fact, of a valid lawful action. To do that, would require a due-process notice and hearing. These are intimidation bullying tactics — designed to leverage symbols of law enforcement authority in place of legal authority. In my case, I was arrested and charged with three felonies. The lock-up intimidation was frightening and designed to be humiliating. Eventually, when I didn’t back down and insisted on a jury trial, the felony charges were reduced to misdemeanors. That meant I wasn’t entitled to a jury trial. Before trial, I was told my arrest file was lost, then I got a phone call that all charges were dismissed. For me, it was difficult to undergo this kind of law enforcement trauma and keep my heart and soul together — enough to file a civil rights suit. Even harder is to find any attorney (outside of Gerry Spence) willing to sue the state. The reason this falls into financial tricks, (as well as overlapping into judge’s abuse of contempt power) is because it has an enormous financial effect on the other party. The plugging-the-springs aspect involves not just the stopping financial revenues but taking marital assets. Here it is the concept of removing a stable home base from an opponent and from a judge position — putting wives on the street — represents a final plugging the springs. For me, there was much more to come because I was also an Officer of the Court problem, but for most wives, experiencing an armed home invasion is plenty enough.

131 This same swat-intimidation technique has been used in other cases to intimidate court critics. The same local officers tried this same technique against ‘The Gadfly’, but with different result. It’s not just the ex-wives of judges who asked to see a valid court order of eviction from para-military style law enforcement, mounting siege on their homes. See, Thayer v. Thayer, Hillsboro, NH, 99-805; See also Douglas v. Douglas, Rockingham 97-M0019; Merrimack, 96-M-1150. There is a 3rd so-called ‘arrest” case, but it is ‘lost.’ 132 For some reason, local sheriffs are the local law enforcement officers of choice by Insiders; rarely are local police or federal officers compliant or involved with these kinds of swat abuses, (except INS.)

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Watch for cases where the judge enables premature distribution of major assets– in violation of the spirit and the protocol of the statute. For Thayer, the house was awarded a month before trial. In my case, the business was awarded a week after the case was filed. Property division is a final trial issue, so timing and premature distribution are insider favors. By the time of my arrest, my law office/business and home were one, so a hostile taking and arrest meant disruption of every element of my functioning, safety and security.

(23) CONTEMPT OF COURT JUDGE JOKER CARDS The issue of contempt of court is a judge weapon that gets pulled out (often by ambush) as a tactic to allow the judge to exercise a catastrophic power to rule on the case despite any fact or law. It’s a super power, so if the judge can maneuver anything into this position, they can destroy the outsider quickly and summarily. “Summarily” means without due process or other procedural safeguard in law.

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Deconstruction involves a good record (transcript and audio); clear understanding of the rules of law (which are usually the basis for a judge’s assertion that the outsider violated the law, committing the “contempt”. Abuse of contempt power is also a gut feeling — you will know it is inappropriate and contrived. It’s just hard to deconstruct and prove in Appeals Court, because of tricky appeal processes. Those are covered in Chapter 8.

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Often, when playing this joker card, the judge skips over all the usual notice and due process requirements, and just rules in a summary manner. This means by ambush. I can attest it is very disorienting when it happens (quickly) in court, but some of that is the bullying judicial commentary that accompanies this trick. It seems to be a form of ranting and it is highly emotional and full of innuendo (you’re obviously a criminal if you think that way) and exaggeration (you’re a really really bad criminal, deserving of what I am about to do to you.) The judge may or may not be accurate in her knowledge of (a) the facts; (b) the law of contempt, or (c) the underlying law about rules, requirements, and procedural steps necessary for a lawful use of contempt of court. The complicated deconstruction of direct or indirect contempt of court, and other fundamentals is covered elsewhere. Often the judge is herself unaware of the steps and nuances of different kinds of contempt (for officers of the court, for parties, or for strangers.) The trial judge gets angry (or runs out of time) and like the Nuns, will start making unfounded accusations in order to dump the case — using a ruling that imprecisely translates into “willful and knowing contempt of earlier court orders.” Often they throw in the criminal suggestion, as icing. It’s why outsiders ought never to go to court alone. This judge trick is a convenient catch-all, routinely abused by judges in court. The judge ability to evade rules of law, statutory authority, and Constitutional due process, means the judge’s power is unlimited even when wrong. The issue occurs frequently in targeted-outcome cases involving court critics and pro se, as a manipulated judge “punishment”, difficult to be overturned or corrected on appeal. This is a rough road and a treacherous, unmarked path through the guerilla terrain of judge abuse. At the end is always an ambush. No matter how strong a case, the outsider will lose by some act of judicial discretion, which the appellate court almost always upholds, because judicial discretion is the trump card established by appellate courts — as an excuse not to review bad rulings below. This is also the place where the club makeup — social attitudes and ideas about power over people — weigh far heavier than in any other area of national power. The elitism factor, becomes a loyalty factor affecting case correction and review. Several long-term New Hampshire cases represent not only this manipulation, but Contempt of Court joker pay. It was how contempt power can be used to transfer assets in a lawsuit, as fines, rather than property award. Aspects involve slipshod short-cuts to manipulate the case into one of “contempt of court” (as the basis of a fatal dismissal or property 272

§51 Changing the unchangeable: advanced tricky modification techniques

taking). The Bonser progeny of cases are referenced throughout, as is my own divorce case. 133 Both case spawned dozens of docket numbers, appeals, new trials, and years of fighting to overcome rulings from the same judge, including the contempt-transfers-of-assets. In each case, we disputed and objected, but it required voluminous pleadings and interlocutory appeals to block and overturn the so-called contempt discretionary trial rulings. In the end, I merely evaded giving up the trash, because the issue disappeared in a black hole.

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§ CHANGING THE UNCHANGEABLE: ADVANCED TRICKY MODIFICATION TECHNIQUES Some orders, once established, limit a judge’s ability to make changes, absent a demonstration in court of certain prerequisites. Judges sometimes try to make modifications anyway, by skirting the requirements or by nullifying the earlier order.

1. IGNORING AN ORDER Another method to nullify an earlier order is to simply for the judge to ignore the one side’s failure to follow the terms of the order. The judge simply overlooks or mis-construes reported facts to avoid enforcing compliance and to avoid hearing and issuing contempt orders. Impossible. So say those who have not had personal experience with the out-of-control court system. A judge would not misconstrue facts. Would not overlook large bodies of trustworthy evidence. Would not arbitrarily act to avoid receiving evidence into the record. Would not look away from a blatant black and white contempt act or omission. The inherent expectations that hardworking decent people have about courts are that judges will act fairly and not fudge on the facts. The impression is strong in our culture. We expect inherent fairness. Well in cases involving financial orders for one side to pay, it is easy to determine if the order was followed. Is there a money trail or not? It is not an issue of extenuating circumstances or a request to modify. It later may involve modification (even not permitted under law.) Anything is possible in these Insider cases. For non-insiders, having a financial order changed either retroactively or in a de facto manner is like an Alice-world experience. The net bottom line is the same as if the earlier order never occurred.

That means in the rarified and sometimes surreal world of the courtroom, nothing is ever absolute until a judge says it is, and then for only as long as the judge says.

2. NULLIFYING A FINAL PROPERTY DISTRIBUTION ORDER Just as support arrearages turn into “property” for the person receiving the support, so a divorce order for division of property becomes a final permanent order, after the appeal filing time has run in a final order of divorce. If not timely 133 Bonser progeny includes Terry L. Bonser, Mary Bonser and Cedar Waters Village Partnership v. Town of Nottingham, NH, et al., U.S. District Court, District of NH, Docket 96-343-M. The original state matter was Town of Nottingham v. Robert Bonser, E-434-81 (1981). These cases extended more than 20 years with numerous tricks, including contempt of court. Another line of cases, also fighting to overturn contempt-transfers-of-assets, also spawning dozens of docket numbers, appeals, new trials, and years of fighting to overcome rulings by the same judge, was my divorce. The contempt of court for trash production is in the following chapter.

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appealed (and then overturned,) the order is permanent — forever. The judge can’t just reach out a couple years later and say, give it back, or turn it over or otherwise take it away without an allegation of fraud, or setting aside the final order.

3. IMPROPER OFFSETS A final order equally divided a real estate interest between husband and wife, but the property was titled only in the husband’s name. The husband testified the property was worthless. He never transferred title of the wife’s half-share. Three years later, there was a tax audit on an old joint marital return, with a nominal amount due (about $2,000). At an ex parte hearing, the new judge ordered an offset of the wife’s real estate interest, and out of nowhere, he said the new $2,000 debt was ‘equivalent’ to the value of the former wife’s real estate holding. It was a non-evidentiary hearing, and the judge initiated this transfer of the wife’s property interest, (back to the husband) while ordering the husband to pay the tax. Sounds reasonable on the surface? Right? Wrong! It was an act of nullification of a final property order. A motion was filed for wife to pay money for half the new tax assessment (or $1,000.)

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While married, the wife was a stay-at-home mom. Arguably, the marital debt arose at a time when husband was responsible for payment of joint expenses, including taxes. Arguably, he was responsible for the tax underpayment.

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From his own bank of knowledge, the judge initiated the real estate transfer of the wife’s half-share to cover the tax liability. The old trial record suggested but did not prove this $20,000 investment was ‘worthless’. The court transcript and record of the tax-hearing (two years) later contained no mention or reference to the real estate asset or its purported value. The first mention of the real estate asset was in the judge’s written order following a hearing. This means, the judge had to have ex parte communication about the wife’s real estate share. He didn’t hear about it at the hearing or from the file. He had no other way to know about it. The judge played racquetball at the Honolulu Club. Husband and his attorney both played twice weekly at the same club. Whether they talked in the locker room or off record in the judge’s chambers, the judge knew a pertinent fact he had no legitimate means of knowing. Three months after new order issued (taking away the wife’s interest in the real estate), that real estate asset sold.134 Twenty times the value of the tax bill and more than double the amount of the original investment.

4. DOUBLE DIPPING TRICKS: HOW SPOUSES PAY THEMSELVES We saw two earlier variations, so I’ll just itemize variations in a list. Payments for future child support get credited twice — once to the overdue (accrued) amount and once to the present amount due. Support payments come from wife’s separate assets — so they are subtracted from her property asset, and used to pay her current support. Support payments come from joint assets, so one-half of each payment is from her own funds to herself. Support payments are made, but the wife is ordered to repay those payments at the end of the trial. Creative judging is an ego thing that imbalances an established system of justice. The judge gives more weight to his own ideas and solutions than to the statutory rules and law. By not adhering to the guidance and mandates of the legislature, or to court rules, he elevates his own opinion, over the law. “It is a subtle cognitive and emotional disturbance” in the legal process that can have catastrophic consequences — such as we are seeing in an entire spectrum of divorces

134 The real-estate speculative venture was a square block warehouse which was torn down and is now the location of the Honolulu Advertiser Newspaper building, located mid-way between Waikiki and downtown Honolulu. The land is fee-simple on an island that is largely leased land (in an area largely Bishop Estate or other trust-estate owned) making a fee simple commercial property even more valuable.

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across the country — including the categorical impoverishment of spouses and children. Judges who don’t understand, value, or follow the written law, but set out their own path of folly for citizens appearing before them. Too many judges have become inappropriately led to believe it’s okay for them to meddle in the law and change established procedures. Whether it is to help out friends, or to follow another agenda, it is an irresponsible step in the usurpation of power from state government.

5. SHOW ME THE MONEY In any legal process, the legal professionals gravitate toward money. Case experts, and anyone associated with the administration of the case gets involved and appointed because at least one of the litigants has money. Judges are aware that once they control assets of the parties, those funds can be used for payment to other insiders. Sometimes, it seems like a feeding frenzy. Less prestigious club members get the state hourly fees. Insiders get both state and private fees. And Ol’Boys get the most lucrative hourly fees for the ‘services’ they provide to litigants — even if the litigants don’t want and can’t really afford them. These insiders get paid first, even before payment to victims (See the handling of the Dahar trustee fees from Judge Fairbanks theft case, and other upcoming examples.)

6. A HIDE AND SEEK ACCOUNTING GAME, THE FUNDS GET DISSIPATED PRIOR TO TRIAL The small balance remaining in ‘my $100,000 clerk trust fund’ was awarded back to Chuck. There were three accounting/ dissipation tricks. Slippage in the definition of who ‘owned’ those funds. The source was four $20,000 payments plus the judge ordered Chuck to chip in $20,000 to keep his interest. Over the course of the case, both judges just treated the trust money as a joint marital asset, but that was not its character. No one noticed the judge’s shift (in assumption of ownership) and by the time the second trial rolled around, the judge just pretended it was a joint asset. The judge and other players, having no claims to the money in trust, still acted quickly and often to ask for expenses, and for their obligations to be paid from this fund. It was treated like a free slush fund. Only it wasn’t.

7. FUNDING THE INDUSTRY What frequently happens—especially in divorce —is the end of trial depletes the parties’ savings. Lawyers and the judge keep the fighting going ’til the parties are broke or the assets and savings depleted. The judge issues orders that everyone associated with the case is to be paid in the first instance, before the parties. It’s funding for the divorce industry. When the Chief Judge of the State Supreme Court was questioned by the Chairman of a New Hampshire Legislative Study Committee about exorbitant fees and surprise fees in the range of $60,000 to $80,000 for divorce litigation,135 Chief Judge David Brock argued back that “there are many many people who make a decision to go pro se because they would rather spend the money on some other luxury or on something else rather than legal fees.”

Whee! What’s your first choice of so-called ‘luxury spending’?

135 New Hampshire Constitution Examination Study Committee, House Bill 1338-FN-A, October 28, 1998.

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But remember, this is an out-of-touch man who though transcript pages were excessive at $1 a page, (they were 4-6 times that) and he later asked the state legislature to pay his multi-million dollar defense tab for his impeachment. He lived in a cloud. So in his mind, you can selfishly represent yourself in court and luxuriously keep your savings for your own children’s college educations, (assuming you have $60,000 socked away) or you can put the lawyers’ children through college with your divorce fee. The legal system has avoided devising a method for separating families without the depleting their life-savings, such as a non-lawyer mediation process instead of family court litigation.136

8. VARIATION: If the trial is delayed for any reason, spouse must repay her temporary support from her property division proceeds.

CHAPTER

If you’ve been jumping around reading you might not get this one — but here’s a quiz — what judge is widely known for his unique, one-of-a-kind, idiotic creative orders with unexpected consequences that are usually illegal and unconstitutional? He’s baaaaack. New trick. First time I ever heard of this, and I’ve read thousands of divorce cases from all over the country.

4

Judge Nadeau tried to accommodate Chuck’s request for an early trial by forcing me to trial a year early. In April, he created a unique ‘financial incentive’ order that set trial for September. He wrote if the trial were continued to a later date, I would be required to repay to Chuck any support or alimony I received beyond the September date. In other words, the judge established an arbitrary date for trial extremely early in the case. He cemented it stone with punitive contingent financial orders. (Is that kind of like ordering prospective contempt?) This is a form of financial coercion designed to rush the case to trial. If there was a need for a continuance for any reason (even reasons not related to me), or the trial date became postponed, I would have to pay back any temporary support I might receive from any property I might be awarded. This kind of order can only be seen to benefit the husband. Why would the court initiate such an order? On its face, the order feels and smells “wrong”. In fact, it is biased and improperly coercive. But it requires a thoughtful detailed analysis to demonstrate why it demonstrates latent bias and abuse of judicial authority. The legislative purpose of support. Here, it is important to discern what is the stated legislative purpose is for providing temporary spousal support during a divorce proceeding? It is not a gift. It is at law, an obligation (or right, depending on which side you represent.) Statutorily, temporary support is both an obligation and a right to have one’s personal needs for support provided by the other family member who can afford to pay. It requires two components (two separate judge findings –remember those building blocks we talked about? These are two of the superblocks. The need for support block, and the ability to pay block.) These superblocks have to be met before support is initially ordered: the person receiving support must demonstrate a need for support and the person paying must have an ability to pay after allowing a set amount for self-support (established by law). Remember the first hearing? The judge didn’t do reliable building blocks. Willy-nilly he gave out favors without a legal basis. So his version of building blocks was based solely on his own will. They included: Making a ruling that I was a mere unpaid volunteer attorney without ownership rights in my law partnership. A quick awards of the most important of our marital property (the D&D law business to Chuck.) A fire sale secret ‘sales price’ tied to no quantifiable appraisal or FMV. Property division tied to a quick vague unenforceable ‘support’ award (I stay in the house until trial.) And a new power-shifting position for his friend — the appointment of a GAL for a defunct law partnership. 136 The author mediating family disputes for over a decade and finds the non-lawyer mediation process “kind” to ailing families, “easy” on their pocketbooks, and with flexible long-lasting results, even in child custody disputes. It’s a cross between family therapy and divorce resolution. It doesn’t eliminate the role of lawyers, just keeps them and the litigation battle-tactics at arms-length.

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So yes, by definition, those were building blocks at the foundation of my case, but they lacked the indicia of due process, and the inherent protection of public policy and law. When the legislature establishes procedures for court takings, there is a vetting process with public input about what policy deserves protection, and how to achieve that under law. The courts are to follow. So when judges individually or collectively short-circuit those laws, there are lots of collateral injuries and unanticipated fallout and harm to innocent parties. This has occurred on a large national scale — bypassing state/citizen input, with ad hoc case law. So by ignoring laws and rules, (because this judge didn’t know, or didn’t care to know) this case administration was sloppy and failed to include goals and rights that are protected with the proper and fair administration of law. It’s not about what a judge wants, or feels, or believes is a good outcome — those are all subjective factors based on the judge’s ego and, in this case, social pressures to provide favors to Insiders. A personal reflection. What happened in that first chambers hearing in my case was so supremely egotistical that the little details of law didn’t matter. Notice? What’s that? Due Process? What’s that? Superblocks? This ‘chief judge’ was the only superblock in the case. To me, he, (like other judges who found themselves specially assigned by a ‘chief judge’ to hear a variety of my cases over the next eight years) seemed dumb as a post about legal requirements and the law.137 But, they were often wily, like the coyote. They practiced political favors, not the practice of law. And I? I was always so focused on the elements of law — the practice — meeting the requirements at law fairly and precisely. I must have looked like such a square to these two men who knew the outcome before the case even started. They just slid through the court process saying, doing, almost anything that sounded remotely legal-like, even when it was made-up legal nonsense. I’d question the validity of their process, and the judge would make up more legal sounding nonsense to cover over the earlier gobbledygook.138 It gets terribly confusing for people who think and live like me, when law leaders don’t follow the rules or stay within the lines. All that study to learn the rule of law and proper procedures, to double-check my research and cases and statutes. And they just blew me off for two years, leaving me flummoxed at their disregard. Again and again I thought, ‘You can’t do that,’ ‘It’s against the rules.’ ‘It’s wrong.’ Often, I tried to show them the actual written laws. I though ‘if only I communicated better, or louder, or said it a different way, then they would understand’. I was legally sophisticated, yet naive. They did understand, but together, they were just groovin’ along to the end of the case — ignoring the rules, creating legal chaos, and winning, always winning. They (the trial judge and my husband) must have always known they would win together (maybe not exactly how, but that the outcome was predestined.) I didn’t realize for ten years that they also worked together in other cases — to screw the Bonser and probably George Blaisdell — because they were old law school classmates, a couple years apart. They had already practiced this contempt-of-court-daily-fine technique by the time my divorce was filed.139 They just settled into that old boy groovin’ together. Of course, neither mentioned their joint history. I was clueless, so didn’t understand then, that even the most powerful Ol’Boy judges in the state were not honorable, nor to be trusted. The practice of contempt of court is a wild card that judges manipulate to play in cases like these. It is why people should never ever go to court alone. Contempt is a Gordian Knot140 of extreme or inextricable difficulty for unraveling judge abuse of authority. Once those legal elements (statutory conditions that become FOF and ROL superblocks talked about in the Homework of Chapter One) are set into place in the case, then the support obligation becomes a property right of the receiver, 137 Several of these special appointments to hear my professional conduct cases were retired judges. 138 A term used by Supreme Court Judge Sherman Horton in his testimony at the state legislative committee investigation on impeachment. 139 These cases have little in common except the judge’s abuse of authority in manipulating murky ancient waters of contempt of court. They sit like pustulated boils on the pages of New Hampshire case law. 140 A Gordian knot represents mystical power for those who can untie it. According to oracle, the one who could untie it would be master of Asia. Alexander the Great was unable, so sliced it with his sword. In fable, the Gordian knot was always tied to a yoke — a symbolism that prevails in these cases.

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which can only be taken away by following certain steps established by statute. Those steps include notice and a hearing among other requirements. With more FOF & ROL’s. Underlying public policy and a secondary legislative intent is to prevent a dominant or wealthy family member from depriving a weaker or dependent family member of support, or to prevent impoverishment of a spouse because the other side has superior strength and wealth. That’s the pubic policy setting-up legal procedures that judges must follow.

CHAPTER

Judges have to follow the legislative steps. Once the statutory element of (spousal or child) need has been established, a judge cannot properly eliminate that support without notice and hearing and opportunity to prove the need has changed or is gone. If the payor is adjudged unable to pay (because of lack of financial resources,) the court must necessarily review that ability with sworn affidavits and bonafide evidence. If it is later shown that the payor hid or failed to report all his income and assets, that gets dealt with appropriately as fraud or contempt with an adjustment. Everything is based on sworn financial affidavits exchanged with the other side at least 10 days in advance of the hearing. That law requirement is supposed to make the support order ‘reliable.’ Here, I think the judge might not have known these steps — he seemed clueless what the law was, and he was used to presiding over cases ad hoc, and by judicial fiat.141 (That’s just a fancy way of saying, his judge style was to making rulings from his ego, power, fear, and generosity.)

4

Kingly pronouncements and scepter-waving. In the instant case, the judge misused his authority to avoid the public policy and law requirements. He avoided applying the statutory criteria for almost every judicial act he ordered that I have detailed. The laws and rules were mandatory, but he improvised various supernumerary non-legislative laws. The judge also ordered two kinds of acts that simply don’t exist in law: (1) ‘prospective contempt’ (2) a quasi-judicial surrogate, and (3) law-enforcement search-and seizure/empowerment for an attorney to act on an act of contempt. (Arguably, this was a bogus contempt finding, to boot.) It’s like he thought he was King Henry — waving around dictates and everyone is just supposed to follow what he says or die in the tower. Someone missed the revolution. But this is an example of how judges routinely get away with this stuff. No one within the system stops them. There are other Insider tricks for improperly transferring wealth. Look for cases where a non-insider had assets lost in court, while participating Insiders get a disproportionate share of the loot. This kind of order fuels an entire industry of professionals connected to the court system. Frequently one party lacks the financial resources to compete. Instead of equalizing the situation, the judge opens a credit card for the poorer party to pay at the end — forcing repayment of attorney fees, GAL fees, expert fees, trial expenses or even temporary support out of the division award to the poor-er party. In this way, trial award will always be a net loss, except to the litigation industry or a spouse with money. ll

Deidre Christo found that her attorneys tried to take her oceanfront home under a contract they devised for extraordinary legal fees never billed or accounted for in her divorce.

ll

The same thing happened with Attorney John Coffey $20,000 bill for estate planning. He just deeded himself his client’s oceanfront house as his lawyer fee.

ll

He wasn’t the first lawyer to use his power of attorney to make himself the beneficiary of an elderly client’s estate. Mary and Bertha Chapman experienced a similar fleecing for payment of their legal fees. It’s a pretty common complaint in bankruptcy, probate, incompetency cases, and other cases where the trial judge appoints a fiduciary attorney to control the assets.

ll

Alice True’s trial judge (Gray) threatened her with contempt when she wouldn’t agree to sell the judge her property (he awarded Alice in divorce.) He committed her for an Involuntary Mental Exam (“IME”).

ll

Chuck used a power of attorney to transfer client proceeds to his non-profit organization, then raided the checking account after he being forced to resign as an officer.

141 Judge JNad’s testimony at a legislative study committee confirmed he presided over few cases — about 20% of his judge time. He testified he picked the cases he wanted to sit on, and there weren’t a lot of judge divorce cases. He also claimed he did all the district court judge performance reviews, including his own, and that he always gave himself excellent marks.

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ll

The Bar makes disciplined attorneys pay the entire cost of their prosecution, (and a run-up of other Bar/ attorney costs) following a smack-down, plus they remove the ability to earn a living

ll

Cases involving the “unauthorized practice of law” apply reverse-trial costs, as financial sanctions, so the parties are under the same umbrella and threat. It doesn’t seem to matter that this is outside of American law — because it often is conducted as a bar-special-court-trial, not an ordinary civil or criminal (Constitutionally based) trial.

These are all formidable financial sanctions, tricky because they are shadowy rulings that operate outside normal protections of law. So far, challenges to this insider discipline/contempt system have not been very successful. Maybe a clearer understanding of jurisdiction, and jurisdictional challenges could help clean up this wild card. Or perhaps some form of financial accountability for judges?

52 SUPPRESSING ALTERNATIVES

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The financial cost of requiring people to lawyer-up before going to court translates into a lucrative living for members of the court system. A variety of cheaper non-lawyer and even non-court alternatives are rarely if ever promoted or utilized, because the Court/Bar zealously protects their new monopoly on law and justice. The historic role of courts as arbiters of problem was not intended to feed the lawyers as much as it was to dispense justice. With the ’80s unification of all state bars creating a monopoly from outside competition, some lawyers just quit. There used to be professionals informally educated and trained, as well as apprenticed, as well as the friends and trusted souls who, without pay, assisted others in court. Now these people are treated as class enemies of bar and the court. Yet, today in divorce cases, over half the parties in court are in pro se. The failure of judges to expand their roles outside the bar and existing litigation structure — to help families not only dissolve legal bonds, but also to enforce and modify amicably, is an issue of money. Court mediation programs are fainthearted superficial window-dressing that avoid the lucrative attorney-fee based litigation system. Attorneys and judges shun the alternative programs. As token alternative programs, mediation across the country lacks financial funding and receives barely token commitment from judges. And yet mediation is a healthy process for families and it works. As for public complains about quality of outside competition, there is no historic or actual complaints about outsiders representing people in court in New Hampshire. In ten years, there was only one minor complaint, and that was barcommittee generated. The public wasn’t complaining. The bar was worried, especially about several outside people (my brother Greg included, who showed up in court to help.) The Gadfly problem. The biggest problem facing the Unauthorized Practice of Law Committee in 2000 wasn’t public safety, but the fact that ol’boys were losing in court and in other cases, at the hands of the state Gadfly. Theodore Kamasinski was also calling out attorney’s illegitimate acts while poking fun at men not accustomed to being on the losing side.142 This aging ingénue man was busy helping several prominent ex-wives, prisoners, poor people and other outsiders identify and fight back against insider cronyism. He also initiated a series of public service lawsuits. He helped me (and many other law firms) on occasion by doing research and writing briefs. He filed to represent me in my divorce case post-trial. I got to judge his quality of work and intellect — they were both excellent. Really. Theo personified what had become so threatening to the bar committee — competent outside competition that saw through the shenanigans of

142 Theodore Kamasinski, see the review of this gadfly in the New Yorker Magazine, Jeffrey Toobin, Annals of Law, “The Judge Hater,” The New Yorker, June 12, 2000, p. 49. http://www.newyorker.com/archive/2000/06/12/2000_06_12_049_TNY_ LIBRY_000021039?printable=true&currentPage=all#ixzz2yonsgmpt

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judges and joked about it. He couldn’t be bought off, and he targeted Insider abusers. The committee was threatened enough by him, that bar members dedicated a year to writing a legislative proposal allowing only lawyer representation. Many bar resources were directed at excommunicating me, and almost as many were expended removing the Gadfly. And other lay people like him. Lay people like my brother, who help others in court who cannot get a competent lawyer. The right to help and represent others in court is a pre-revolutionary citizen-right since King George ruled the New World.143 By assault on the state statute,144 by court rule, and by a publicity smear campaign worthy of a Presidential race, Judges ganged up quietly but zealously to remove everyone but lawyer-members from representing people in state courtrooms. Their specific target was the Gadfly.145

CHAPTER

Non-lawyer representatives are one way court users can circumvent at least part of the insider gotcha mentality of modern litigation. It’s not just the fees, but frequently is a human approach to problem-solving. One example of local consumer-insistence (on containing the growth of big business in law) is the New York Justice Court system. Although under funded, and poorly paid, (it doesn’t seem to attract quality candidates) The People’s Court is immensely popular as a means of locally dealing with minor legal matters without attorneys.146

4

The present legal system is highly vested in increasing the complexity, the secrecy, and the mystique of the legal process, so that ordinary people who can afford to, must rely only on insider trained and controlled professionals. Americans traditionally do for themselves in all sorts of venues and platforms. The misguided emphasis on obliterating lawyer competition and protecting club members fails to address the issue from a consumer perspective or a marketing viewpoint. Demonstrably, it has no relationship to quality of service. The price tag is strictly what the market will bear. There is an enormous market for low-cost, no-cost legal services that would be well served by non-lawyers, as historically occurred from 1726 until 1986. By circling the wagons, tightening the process of getting accredited, and closing out lay people, union control of legal services adds to the high cost, poor productivity and insider trading in courts. Whatever the cost, citizens are the ones who suffer.

143 It is written in one of the earliest law books I have seen for New Hampshire — Acts and Laws Paffed by the General Court or Assembly of is Majefties Province of New Hampshire in New-England, Boston in New-England, B. Green, (1726), see anno Regni Regianae ANNAE, Decimo Tertio at page 47. 144 There are more lawyers, lawyer’s wives, and law-politicians on the legislature’s legally-related study committees than non-lawyers. 145 In fairness, he was irreverent, and had a lopsided, sometimes adolescent sense of humor about exposing hypocrisy. There were a couple of other flaws in his handling — but it was no different with members of the bar, who also had a personal agenda to avoid exposing illegitimacy. Theo was, as I have become, looking for the flaws in arrogant and smug inside behavior. 146 It handles custody, child abuse, and juvenile offender cases. But it suffers from underfunding and lack of resources. See http://www.psmag.com/ politics-and-law/the-trials-of-new-yorks-family-court, February 9, 2016.

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WHISTLEBLOWERS — 52THEATTORNEY ATTORNEY SMACK-DOWN

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Increasingly, a small body of attorneys and a few judges, each acting individually in their own local situations, have come to experience the collective regulatory power of the new legal system. Judges who squelch lawyers who criticize other judges. This includes the unspoken rules that avoids all club/judge criticism, and tolerate no dissention by members of the legal community — even when the objection is as small a matter of law as making an objection on the trial record. On the bigger questions — what is the Constitutional division and limitations of power between Courts and the other two branches of government? Even the big fish ignore and avoid.

Who Decides National Policy and Constitutional Rights: Legislators or Judges? For the first two hundred years, America followed the Constitutional Amendment process to expand rights to new classes under the Constitution. In the last half century, that changed. Why? How? Is it constitutional? These an important question impacting national and state social policy cases that evade the Constitutional Amendment process because the Supreme Court just takes jurisdiction over some issue, and presumes it has the right to do so. It’s the 3,000 pound guerilla in the courtroom. These recent usurpation of power court cases cover the Presidential outcome case in 2000, and other highly political social questions: the LBGT equal rights claim; voiding DOMA, cases about religion and the 10 Commandments. They alter other important state issues, including land and family, sex and privacy — all questions about “rights” protected by the U.S. Constitution, including birth and abortion. Mine is NOT a generic conservative/ liberal discussion about the topics that polarize us as a nation. Or quagmires that divides us. My questions are about the legitimacy of the judge process — ll

What is the proper American process to expand the classes of protected people — to declare new new groups covered by 14th Amendment protection?

ll

Why has it switched from the process of national voting for/against new Amendments to the Constitution — over to kingly pronouncements by a small group of unelected Bar-club leaders?

ll

Is that switch in power valid? Who authorized it? Is it constitutionally authorized? If not, are the judge orders valid? Have judges encroached on power relegated to another Branch?

ll

Have judges assumed a power not allocated to Courts in the nation’s founding documents?

ll

Hold off until the end of the book to answer this next one: Are judges the category of people you want making major social and political change edicts? And, do you trust them?

To bring this back to a personal and economic level, it is necessary to mention what happened to Attorney free speech under the new Court monopoly system. Each attorney lost their First Amendment rights. The judges don’t’ talk about this, and attorneys have been precluded from suing about it. (See next chapter) And Judges provide attorneys a lot of economic perks in the form of patronage, and achievement awards and titles, just like in a regular English kingdom. Judges allow the club to keep out competition, and they help increase attorney billable hours by all the tricks we’ve looked at (and many more.) In return, attorneys are expected to (a) be loyal to them; (b) follow the Club secret rules and not mess with what judges’ say and do, and (c) be deferential to judges always. Whether you see it as a kingdom or a trade-union closed shop, it’s a trade-off. Lawyers lose their First Amendment Rights and they get to work with a lot of economically helpful perks. Only this is fundamental to everyone because these guys are making decisions of law, and affecting the everyday lives and pocketbooks of all Americans. And they have almost unlimited power. What limits there are, judges have been circumventing. That’s what this book is about — illegitimate ways to circumvent and avoid established law.

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CHAPTER

That’s why there is lots of scepter-waving and power-poaching, but little or no criticism about the path judges veered onto. It’s no longer a path, but has become a major highway of Constitutional changes, without the actual pain of amending process. Objection is largely futile within the case. Lawyers aren’t going to protest because judges suppressed that internally, harshly. I didn’t realize for years they had taken my freedom to speak out. Attorneys who exercising individual conscience and who report corruption in judges and law, find they are on the hook of the monopoly to be quiet and accept judicial error and abuse. For those that don’t or can’t shut up, a whole gamut of coercion and retaliation tactics go into play to prevent insider criticism by attorneys. Attorney critics are an anathema to the profession. That’s why they are marginalized, excommunicated, and silenced. Most lawyers who fight systemic judicial corruption begin locally, with cases they are personally involved with. Their tiny individual voices get sucked into a huge bar-vacuum. Each is made aware that if he/she persists with a dissenting voice, they will become an individual target — against a colossal giant. Each attorney I have talked with described how alone they felt battling systemic corruption in just one case. Actually each is experiencing a pattern of similar treatment happening all across the nation — by a unified bar/judge system that silences criticism or kills off the critics.

4

Only recently has a brave band periodically met to expose and discuss the problems of systemic national-scale abuses by judges. Each experienced not only a pattern of discretionary coercive techniques, but most found they had to defend against ethics, moral and criminal charges that surfaced against them personally during or shortly after they reported or confronted a judge for illegitimate behavior and handling. Each reported act was an act of conscience. Those acts are being systematically suppressed within the profession. The judge-bar handling of critics is a back-door technique for criminalizing speech that is protected under the First Amendment. David against Goliath, individual lawyers who complain about judges and corrupt practices, soon find they are enmeshed in a secret system of internal discipline that most are able to emerge from intact. One at a time, lawyers critics are pulled into this star chambers court. These are quasi-criminal private courts, run by other bar members that discipline lawyers under a pseudo-joint “state” authority of the state bar association and the state court system. I know from first hand experience, these are Kafkaesque disciplinary processes that last for years, leaving an attorney (and her ability to practice law) in limbo. I found myself engaged in a prolonged struggle to defend against charges and allegations that were vague and constantly changing. Each of my successes was followed by more amorphous competency and morality charges. My divorce case was the beginning of a decade of self-defense in three-dozen shadowy-but-related cases.147 My whole life was reduced to shadowboxing.148 Eventually the internal wheels of the bar/ judge system ground over my attorney ability to practice law. Along the path, I experienced many of the financial tricks, including the ultimate to take my law license and charge me million$ for the process. I — one of the law community’s most reluctant members.

PLUG THE PROFESSIONAL SPRINGS Bar members who report judge misconduct, will experience first, a loss in referrals, appointments, and revenue. All financial incentives get removed. Referrals stop. Even the status of court certification can be removed. One had a 95% case load of court GAL appointments; after she filed a formal complaint about a judge, she discovered her GAL certification was pulled and her name removed from court lists. (She first reported the impropriety to JNad, the administrative judge, who told her not to file a complaint because he would handle it privately.) Being decertified (without cause or hearing) meant that she could no longer receive court appointments.149 I found the same thing in court contract mediation. I was approved and the only mediator under contract for the district, but all judges just stop making referrals. 147 See also a section on slapp suits in the next chapter. 148 The system is flexible — this is a dark side pattern, but for important Insiders, same process is more of a black hole, where their misconduct allegations disappear with minimum disruption. We’ll see examples of judge-handling for each in upcoming chapters. 149 This New Hampshire attorney testified about this insider retaliation at a legislative hearing. In the meantime, she survived by working as an expert witness for other lawyers. It is good to have an alternative career path and revenue stream in place, even if you do not expect to become a judicial whistleblower. Whistleblowing is not a career path anyone plans.

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§53 The Hidden Costs of Bad Judging

Punitive orders may happen — disincentives, financial punishments. If this financial shut-off doesn’t curb an attorney’s criticism of any judge, the attorney can be financially annihilated, through the court/bar internal discipline system. Then the attorneys each discover that not only do they not have any First Amendments Right of Speech to criticize a judge, they also have no property rights in their professional license. Courts have each decided that an attorney-license the sole property of the state bar (court) which granted the license. Federal licenses are based on state licenses, so outside of patent lawyers, the bar association (in conjunction with state judges) controls licensing, including removal of the license. All triggered by attorney criticism of a judge. Nationwide this represents a lawyer’s cost of doing business in the system — no First Amendment Rights regarding judges.

ATTORNEYS PAY THEIR OWN COSTS OF PROSECUTION Attorneys who face discipline might be startled to discover that if ‘found guilty,’ internal bar rules require them to pay all costs and expenses associated with their investigation and prosecution. This isn’t criminal court, per se, so the equivalent of “guilty” in a bar-court is actually a misnomer. It is violation of a court code. There is no prison or jail — only sanctions, humiliation, or excommunication from the club. This means an attorney targeted for silencing will experience a progression of bar-censure, or shaming. Here, plugging-the-springs means suspended from earning a living. The problem with this cost-shifting pay-for-prosecution scheme150 — it is not only un-American, but a defendant is forced to face off against state bar (salaried private firm) attorneys are not only receiving a paycheck, but they have relatively unlimited bar/prosecutorial resources, staff, and time. The imbalance can be staggering. One attorney estimated the cost of prosecution — only for my last discipline case (one of many) was $3 to 5 million. The bar team had unlimited resources for it’s prosecutors, while, like most lawyers in a similar position, I had few resources (except the truth) for my defense.

53 THE HIDDEN COSTS OF BAD JUDGING

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The failure of the court branch to remove bad judges means a cacophony of bad decisions over long periods of time. The failure to remove any judges for cronyism, neglect, misuse of power, insider dealing, abuse of office, tampering (witness and evidence) and obstruction of justice, means that the same bad apple judges impact thousands of cases over a lifetime. For a decade, judges have complained to the legislature about their excessive number of case assignments and the ever-rising number of appeals, filed by people seeking review of lower courts. Several state courts requested a new level of courts be added to the system to hear appeals. This translates into requests for increased court bureaucracy and funding. Simplistic as it sounds, an enormous hidden costs of bad judging is the fact that the losing parties not only appeal, but they can glut the court system with complaints, pleadings, extra motions, and extraordinary efforts to right judicially-created wrongs and bad judging, using the systems designed by judges to review such problems. So if it is not working? Maybe its time to review what’s wrong with the system the judges created? Maybe look at the bigger social problem picture?

LACK OF DE NOVO NEW TRIAL For one appeal, I filed & raised the issue of how the court decides when a new trial de novo151 is essential for fairness — when improper interference and judicially biased activism has been clearly demonstrated. For example, remember the 100 New York cases, where Freida wore a wire collecting FBI evidence proving the judge took bribes in those cases? Even in the cases underlying impeachment of the entire NH Supreme Court, the court failed to even mention ordering a new trial 150 This is contrary to the American system. In America, defendants don’t pay for their prosecution. 151 De novo mean new from the beginning. Earlier orders are void, and the rehearing starts fresh.

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Chapter Four — Financial Tricks

from the start for the Thayer victim of improper favoritism. Full speed ahead, and damn the torpedoes. Except if your case was one of those torpedoes….where you lost custody of your child because somebody slipped the judge a box of Cuban cigars…. Maybe it’s time for the legislature to take a look at when a new trial de novo is appropriate? Or how to report a corrupted judge, so something actually happens not only to him/her but to the septic tank of improperly influenced cases? My rough estimate is New Hampshire’s appellate review system may have improperly handled 8,000 to 9,000 cases over a decade152 because judges simply failed to recognize their own tainted insider handling. The appeals court refused to allow any rehearings. I was ‘lucky’ that I got a new trial, but unlucky because it was the same tainted judge, with even more tricks up her robes. By not addressing what is common sense, leads to the situation, where the same district court judge was reversed on the same issue (failure to disclose conflicts of interest and recuse when required) multiple times in his career. 153 That came out at his Executive Council hearing, after which he was approved for promotion to the top court. George Blaisdell was forced to return to the Supreme Court three times for new trials after JNad failed disclose conflicts of interest.154 George bore the cost of eighteen years of trial, appeal, new trial, another appeal, another new trial, and on and on. The profession gets enriched, while the client is ruined financially — despite being found ‘right’ each time on appeal.

CHAPTER

AND THE COST TO THE JUDGE FOR BEING OVERTURNED?

4

$ Zero. A judge can be knowingly, blatantly wrong, over and over. He can act improperly in a way that is unfairly punitive, dishonest and vindictive, yet still there is no personal cost or criminal charge for a judge. Judges claim they don’t have to follow the law — and in fact, assert a self-imposed authority to make new law. They have created a judicial immunity “privilege”, which may or may not be flawed in formation under the Constitution. Judges are discounting the Constitution, because it doesn’t support the modern usurpation of power by the Third Branch. The Constitution is increasingly inconvenient in Court proceedings. The stress on the legal system — by creating vortex cases that go to appeal over and over again, is because citizens pray the next judge will surely see and overturn the abuses from below. A single judge over a lifetime can create billion$ in unnecessary legal costs because of judicial abuse, yet the legal system refuses to stop, correct, restore, or provide restitution. This new bar-court invention is too much unregulated, uncorrectable abuse of power. Each insider judge case can stimulate decades of fighting to right the wrongs, creating millions of dollars of legal costs in only one case.

I have found that people can lose in court and accept the losses. What they cannot accept is the perversion of justice. People who feel cheated out of a fair trial, a neutral forum, and a fair judge. To accept all that is to accept the death of justice.

Grit is an American trait. (But so are fairness and a level playing field.) Non-insider court victims sometimes spend years educating themselves to find law to undo an unfair outcome. The enduring American value suggests that individuals who fight long and hard eventually can find justice. It also assume a level playing field. As long as judges are allowed to operate under a different set of rules and law — and they get away with it, grit or not, All Americans stand to lose. Big. Example One: An alcoholic judge in the Concord District Court may have a docket of thirty to fifty criminal cases for each half day session, three to five days a week. The potential for impaired, illegitimate judging can run over

152 This is the number of appeals filed between the two ‘bookend’ cases establishing improper acts of judicial interference – (cronyism) in the Home Gas Case, and the Thayer divorce case (about a decade apart). 153 And that’s only the cases taken up on appeal. 154 Blaisdell v. the City of Rochester, 135 N.H. 589 (1992); et al.

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300 to 500 cases per week, impacting up to 5,000 cases per year. The social cost of incarceration and improper removal of people from productive social lives into jail detention and prison is staggering in its ever-expanding pool — a shameful outcome on lives, families, and business.

AMERICA HAS THE HIGHEST INCARCERATION RATE OF ANY COUNTRY IN THE WORLD. Ten people out of a hundred are incarcerated. Often this aggressive criminalization of citizens is a result of an aggressive and unfair prosecution mentality, criminalization of social acts (and omissions) not considered criminal in other societies (felony charges for unpaid child support, for example), and poor judging practices, which create a net of legal abuse. Alzheimer’s and senility may impact a fewer number of cases, but with a greater dollar impairment. The social costs of litigating a case before such a judge involves not only the out-of-pocket costs of attorneys for each side, but the outcome losses/damage to the individual. Example two: Two decades of looking away. Pedophile Newport District Court Judge John Fairbanks presided over decades of cases he perverted by trading sexual favors for lenient sentences. He not only released repeated offenders, but also fleeced over $10 million from fiduciary accounts he also managed. Do his victims number in the dozens? Hundreds? Thousands? The FBI and a state legislative investigation after his death suggested widespread cover-up across the highest levels of legal and law enforcement, and the state bar professional conduct committee for more than a decade.155 They determined it was impossible for Governor Steve Merrill, the Bar President (a relative), Attorney General Jeff Howard and other law enforcement not to know.156 Meanwhile, the number of noninsider, non-legal victims, including elderly, juveniles, and women, just kept growing. No other industry provides such a poor, unreliable, and expensive consumer product. The court has no motivation to improve judge quality but it does have many reasons to avoid accountability and oversight. The lack of transparency is a national court problem, and without it, the public is unable to recognize the extent of institutional corruption. That is my point. Financial tricks by judges in court represent an alternative form of insider trading — now so rampant that Americans rightly should fear going to court. Court has a well-deserved reputation for feeding off the poor, the innocent, and weaker members of society. As it’s appetite has grown, so has the range of victims expanded. Middle class families, small businesses, even corporations have reason to fear the spiral of litigation costs and unreliable outcomes at law. The cost-benefit of the legal process to society is not only un-justifiable, it is as criminal an exploitation of court users as bad as any Enron or mortgage banking industry scam.

155 For example, a complaint was filed September 21, 1987 with the state judicial conduct committee- a roll call of Insiders — which for three years failed to act. Representative Philip Cobbin believed complaints against Fairbanks were ignored for years because of the “good old boy” attitude in the legal and judicial communities.” Associated Press in the Concord Monitor, July 14, 1997, B6. 156 Tom Auclair, “FBI: State was ready to offer Fairbanks a deal (because the) situation was a ‘severe source of embarrassment for officials, Keene Sentinel, November 13, 1997. Indicators and logic strongly suggest Fairbanks death was not suicide, as claimed by state officials.

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CHAPTER



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CHAPTER FIVE: TABLE OF CONTENTS

CHAPTER FIVE — TRICKS BEFORE TRIAL §54

ASSIGNMENT OF THE JUDGE

§55

COST OF JUDGESHIPS

§56

JUDICIAL PATRONAGE, PART II

§57

REFUSAL TO RECUSE

§58

INTERFERENCE AFTER DISQUALIFICATION

§59

WHO GETS PROSECUTED?

§60

SETTING BAIL

§61

GRAND JURY ABUSES AND USES

§62

SWITCHING THE PROSECUTOR (STATE OR FEDERAL)

§63

LAW ORPHANS: JUDGE-LAW DOCTRINES TO AVOID CASES

§64

“PLEA BARGAIN MILLS AND FRAME-UP FACTORIES”

§65

TIME OUT FOR KUDOS

§66

DISMISSAL BEFORE TRIAL

§67

DISCOVERY GAMES

§68

TIMING TRICKS — THE LOPSIDED CLOCK

§69

INDEFINITE INCARCERATION AND CONTEMPT OF COURT

§70

LIMITING THE ISSUES FOR TRIAL

§71

TRUMPED-UP CRIMINAL ACCUSATIONS

§72 LIP SERVICE ABOUT PRO BONO LAWYERS AND FLAT FEE CRIMINAL DEFENSE §73

LAWYERS WITHDRAWING BEFORE TRIAL

§74

PAID ALTERNATIVE JUDGING

§75

JURY SELECTION

§76

TRASH CONTEMPT AND OTHER EXAMPLES NOS THAT’S WHAT NOS MEANS 287

TABLE OF CONTENTS

INTRODUCTION: THE FOUR STAGES OF TRIAL

CHAPTER FIVE — TRICKS BEFORE TRIAL

INTRODUCTION: THE FOUR STAGES OF TRIAL We now move to a sequence of judge actions, which tend to surface during four different trial stages, covered over the next four chapters. The first is Pre-Trial, a chapter that covers a panoply of events from naming the judge and precharging events, up to the eve of trial. The next chapter on Trials involves everything during the actual event, including jury selection. The following chapter Post Trial includes all the procedures that occur from verdict or judgment, through sentencing or civil trial clean up; and the last chapter on Appeals deals with a stage where losers need to negotiate around a whole set of internal attitudes and problems to try to convince the next higher layer of judges to reverse or overturn. The material of earlier chapters still applies, and there are occasional cross-references back — either as a reminder, or to fine-tune a point in some case, or demonstrate a later building block in an earlier judge tactic. Issues like secrecy and sealing, move on to more developed stages. This is to help readers understand and recognize judge tactics are multi-stage; individually each may appear harmless, but as a game-pattern, they avoid judicial accountability and review. But problems like cronyism and flawed discretion weave throughout a case, whether or not the appellate court wants to recognize it. I hope it helps to place topics of study into trial sequence for identification and further inspection. As always, every case is true, and I strive to report accurately. Some names are omitted to protect the privacy of both the innocent and the guilty. Judges also have restrictions on reporting pending cases (notwithstanding the First Amendment) that they sometimes zealously use to deter law reporters from influencing pending case outcomes.

54 ASSIGNMENT OF THE JUDGE

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CHAPTER

Which judge gets assigned to try your case in court is the most critical element for whether you are going to win or lose.

5

It’s the first thing that can set your case on an irreversible path — fair handling or corruption. Everything else that happens to you from this point forward follow the path of the assignment. Insiders understand better than anyone. So they move quickly and quietly to get a known friendly insider assigned as soon as possible. If a clerk of court first makes a random assignment — they understand it is critical to get switched to a compliant judge before the other side has any idea what happened. Think of the Nazi concentration camp selection process — you just arrive, get in a line, and someone motions left or right. Live or die. It can be that basic and that simple. “Judge Pappagianis? He hates me! You have to assign me a new judge”1

Understandably Justice Stephen Thayer had already had the lower trial court Judge Groff removed from his divorce case and it was switched to Judge Conboy — a lady judge who sometimes seemed enamored during the trial court proceedings.2 So who could blame Thayer now for wanting the same professional courtesy — of changing out a problematic appeal-level judge for a new very friendly one — now that his lower case had been won but it moved up the court process for appellate review?

1

NH Supreme Court Judge Stephen Thayer to Clerk of Court Howard Zibel, and later to his boss, Chief Judge David Brock regarding judges to be appointed to decide his divorce appeal.

2

The relationship between the former clerk of the State Supreme Court (Bussiere) and Conboy, and Justice Thayer seems to have been a complicated, undisclosed, long-tern personal one over two decades.

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§54 Assignment of the Judge

SWITCHES AND SUBSTITUTIONS There is no greater leverage for winning a case than having a compliant judge on the bench for trial. Some cases demonstrate how Ol’Boy Insiders are able to switch trial judges because of political influences — even after the case has been pending pretrial for years. The Belle Isle Nuns3 learned the hard way that it’s never too late to switchout a judge. Their switch came the opening day of trial. The replacement showed up unprepared, but, as a designated switch-hitter, was willing to do what it took to make the trial end up in the right position. She replaced a judge who had presided two years, over many pre-trial hearings and rulings. Coffey dealt with the case in her usual nasty and winner-take-all mode. Belle Isle represents good and bad news — the first judge apparently was not going to throw the case (good news); but instead of holding trial, he stepped aside and played golf that week. There’s an ethics duty in there somewhere — including to report this kind of slight of hand reassignment by the chief (that’s the bad news.) Empowering and motivating good judges to speak out, would help deter this kind of unethical behind the scenes judge behavior. It isn’t presently on any court radar. Here, complaining might have deep sixed the first trial judge’s professional future and livelihood as long as JNad stayed in power, (he’s gone now) but what does it take to empower otherwise good judges to follow through to report the rotten eggs in the system? Are rotten eggs like apples? You get a few and the spoil just spreads? For me, it’s easy — a no brainer — part of my DNA. Just grow a pair. Everything else follows along in due course. I can attest what a legal nightmare these cases become for defendants who report this kind of judge ethics violation,4 but what about the other judges involved? The ones told by their bosses to skip work and play golf? Men whose salaries and health insurance are protected with tenure and guarantees? Because when trials are slight of hand, where nothing is as it appears, and beaucoup hard work and precious resources are just fodder to the fire, (I once mortgaged my truck to take just one deposition in one of these kinds of cases) what hope does anyone have to get treated fairly in court? In that kind of alternative world, the function of court becomes the whim of royalty and patronage. Without the cooperation of other judges and Officers of the Court, who are sworn to see (and report) judge abuse, even their own ethics code has no relevance. It is the illusion of ethics, used as a cover-up, because it is not followed. Meanwhile, the incentive for judges not to report each other is widespread — a fast-growing invasive weed threatening the entire ecosystem. We are exploring a pattern that exists amongst judges — those who misuse judge authority, and those others who stand by watching and knowing but not reporting under their ethics honor code.

Victim — “a living being sacrificed to some deity or in the performance of a religious rite.” This kind of victim is not a person caught in “random misfortune, such as train wreck, earthquake, or flood.”5 Scapegoat - a small domestic animal, unfairly assigned the frustration or sins of a group. Sacrificed as atonement. Projecting and transferring blame. Psychological displacement of anger onto an innocent and treating with hostility and aggression. Victim blame.

These cases involving abuse of authority judge appears to have fall into categories. Imperial judging is applied against — 1. Innocent victims, like the nuns (who just get in the way of a gift to a political Insider); 2. People like me, innocent people who represent a threat to the judicial system itself (those standing between an Insider judge and the “gift” of a winning case outcome); 3. Criminal cases involving targeted classes of people I will call ‘nobodies’ who are sacrificed to a government law system ideology that represses our national Christian heritage and character. 3

Rockingham Superior Court Docket No. 94-E-562. This case is first reported Chapter 2, §25, Paper & Ink Judicial Economy.

4

Why we keep losing in court and on appeal is also part of this rogue judge system. My goal is to illuminate, so others can overcome, correct, or circumvent the inherent flaws in the judge’s judicial system. It’s not the same system established by the U.S.Constitution, so let’s keep looking at the policies and practices that embedded this new one into our original system.

5

Kren & Rappoport, supra, 73.

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CHAPTER FIVE — TRICKS BEFORE TRIAL

This third class of cases operate as their own ideological justification, where the nobodies find institutional barriers to accessing their fundamental rights, such as habeus corpus, and Brady materials, and other judge-controlled fair-trialassets. It is the problem of judge-attitudes and extensions of authority that extend a (flawed) socio-economic policy into a court trial practice that encourages denying whole categories of people human dignity and access to fundamental rights in court procedures and trials.6 It is important to include mention of the government policies and undertones that created this imperial system, as well as continuing to look at cases where abuse of authority has occurred. Remember this doesn’t happen in every case. But who can tell which cases are affected? When it occurs in a case, I can confirm that there is a confusing cloud of illogic and reason, a haze of non-facts and criminal overtones (even in a civil case) that clouds and confuses judge rulings that use legal terms, sometimes delivered with thundering, moralistic-appearances. Illegitimate judicial authority that sounds and looks legal.

CHAPTER

This creates the fog7 that makes it hard for the victims to understand as it occurs in court, and for some time afterwards. We know we are innocent. But the courtroom drama is so different from our generic expectation that a judge will always be neutral and fair. This fog reflects how innocent people normally respond when a system doesn’t work for them. We also expect the system somehow will work to correct itself, fix its mistakes, and recognize my innocence of wrongdoing. It’s part of the psychological thought pattern of being a victim. [Guilty victims of the system don’t think this way.] The truly innocent focus on what we each know with certainty — namely, on our status as an innocent person wrongly accused, in a much larger system that doesn’t care and is motivated to ignore our innocence. Even in a civil case (you went to court on a property dispute, or domestic issue or a seatbelt-infraction ticket) — this kind of rogue “policy” judging will insert a criminal/guilt overlay onto the victim in each case. It is inevitable in what the system of justice in America has become. Making innocent citizens into judge victims represents the rogue arm of judging —

5

6

The court practices are both judicial and prosecutorial. Indeed, the two often become an insider team together, working cases by case, for the conviction of a nobody.

7

Holmes and Meier call this “the fallacy of innocence.” Their deconstruction of victims — “a living being sacrificed to some deity or in the performance of a religious rite” distinguishes the court kind of victim (one of intentional sacrifice) from the “secondary” victim status of random misfortune and natural disaster.

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JUDGE INCENTIVES Judge Posner, Chief Judge of the Seventh Circuit, wrote one of the few books on judge thinking. He lists three motivations for judges to be ‘fair’ in their work. Judge Posner’s three motivations for judges to perform fairly — doesn’t seem to be working well. If chieftains can bully lesser judges into playing golf, perhaps it’s time to initiate some monetary incentive to facilitate ethics reporting? A civil or perhaps a criminal incentive? How about establishing personal liability for negligent judging? Or criminal charges for improper interference and obstruction of justice? Maybe some enterprising corporation can provide judge liability/malpractice insurance — where people can file claims against bad judges, and the insurance industry or the state bar can step into yet another arena to battle to devalue and pay out cash awards for these kinds of ethics violations? How much it is worth if a judge takes a box of Havana cigars to award sole and exclusive custody of your two toddler twin daughters to your ex-husband’s brother?8 Or throws your case in any of the 120 different ways this book describes? What kind of incentive does it take for the judgebusiness to decide it is the right thing to do to police itself? Posner wrote a unique, judicially deferential book, How Judges Think.9 One of his theories supports mine — that in general, judges are not motivated by money. What I write about is usually not a matter of traditional hard cash bribery.10 Posner postulates that judge “errancy” in decision-making might be curtailed by three things: (1) what other judges think of them (peer respect); (2) the number of times they are reversed on appeal (reversal rate); and (3) the number of times they are cited by other courts (citation rate). Academia is helpful, and there is little available which explores the nuts-and-bolts function of judging. But judge commentary about the profession routinely dodges the systemic ethics problems reported here,11 (just as my book isn’t about reporting many fair and neutral judge cases.) Posner advocates spending not one minute studying the U.S. Constitution (for law students, lawyers, and judges) “for the history of its enactment, amendments, or implementation” because 18th Century American could not foresee the culture, technology, etc. of the 21st century. “In short, let’s not let the dead bury the living.” Posner from Harvard is talking about preserving the elite authoritarianism judge-system, without the messiness of us ordinaries with our pocket constitutions. And he has been the only treatise on Judging until now.

When a case is handled in a fair and neutral manner — who you are is not the defining factor for who wins and who loses. A just and impartial judge is the world’s expectation. But the court system has no deterrent when an imperial judge passes out favors to other elites. When opposing attorneys know they are going to win no matter what (as my husband Chuck did), they can do sloppy poor work, avalanches of it, and it doesn’t matter. The other side can be brilliant and well prepared, and that also doesn’t matter. None of it matters because these cases are not decided on the merits or the Rule of Law. In my experience, these cases will be decided by a last minute ambush. Some act of judicial discretion, twisting facts in a way designed to take advantage of the appeal court’s aversion to reversing a trial judge on the facts.12 Hard work won’t pay off, and justice won’t prevail. These Insider-favor cases makes a mess for the higher court to review, because the next tier of judges has to stretch and twist to apply judge-doctrines, contorted and erroneous rationalizations, and to avoid common sense, logical reasoning, rules, and especially THE RULE OF LAW, in order to uphold the lower court’s mess. It’s why Judge Broderick can find that it’s fine to use a nuclear weapon on a mosquito infraction on Greg’s court appearance form as a reason to uphold a default.

8

That’s a true but hybrid example. The cigars were part of a judge bribe in a NY case; the minor twins awarded to an ex-husband’s sibling is a New Hampshire Insider-favor case where a fit parent (in divorce) wasn’t even allowed visitation, after her young twins were permanently awarded to the custody of a former brother-in-law and his wife. Isn’t that called kidnapping?

9

Judge Richard A. Posner, How Judges Think, Harvard University Press (2008). Written by a national judicial leader, this book presents a rare opportunity to look at and analyze the world of judge-speak.

10

Cruises and luxury vacations? Yes, although sometimes these are ‘working’ vacations. Higher the judge, more luxurious the perk.

11

Example of Posner’s academic-style summary: “The filtration at the judicial appointment stage is particularly weak….” Id. at 127. World News Daily cited the Journal of Legal Studies, where Fred Shapiro called Posner “the most cited legal scholar of the 20th Century.” Here’s the news flash - there were only three notable treatises on judges in the 20th Century. It’s not that hard to be 1st, when you’re the only book in print. To the extent Posner is a commercial for the Bar monopoly, his protectionist thinking is flawed by bias. It represents authoritarianism, not democratic values. Ergo, Posner constantly undermines the US. Constitution. It is the same style thinking as Alexander Hamilton, who was a monarchist, and would have preferred George Washington be a king or president for life. Posner represents contemporary imperial thinking.

12

Named “reversal aversion”. Id. at 70.

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CHAPTER FIVE — TRICKS BEFORE TRIAL

Chief Judges are especially addicted to wielding this kind of power — being a sort of political connector or legal kingmaker. We suspect it is not a matter of money — JNad drove a Rolls Royce and wore designer. He switched the Belle Isle judge to provide a political favor to a State power-broker. He acted like a big shot amongst top political influencers in the state. Insiders across the country in their own cases know how to seek a quiet advantage for winning — by lining up the a compliant judge as insurance —a helpful finder of fact who can maneuver the case. In fact, we’ll later look at a two judge, two-year set-up to elect helpful judges to a West Virginia appeal panel. A case where the outcome was seen as a multi-million dollar return-on-investment political contribution. Manipulating an Insider judge assignment for trial is the first and probably the longest trick in this section for a reason.

THE NEUTRAL STANDARD OF ASSIGNMENT The federal standard for selecting judges to hear a case involves a random drawing process where each judge in a court is assigned a equal caseload. While it doesn’t assure a neutral judge, the selection process is mechanical and blind, with no human input into the process of picking which judge will hear your case.

CHAPTER

Unfortunately, there is no requirement that states follow the federal standard, and state judges wield extensive personal and political power by manipulating who hears which case. In New Hampshire, the practice has been that the chief judge at each court level, can exercise a prerogative to assign or reassign a helpful judge or take over the himself — by caprice, whim or bias. I find no rule, law or authority supporting this authority, and found exactly the opposite holding. I cited it in my brief,13 and the appellate court actually disingenuously found federal law supported the unethical state practice. But only because state judges mis-cited the federal case law in my divorce brief. A black to white 180 degree error in law. I wasn’t allowed to call out the 3,000 pound guerilla, but it is not for want of trying. And the Supreme Court judges noticed and coached each other, because the same judges, when standing for impeachment, erroneously cited law from my divorce case brief as their authority, with the same 180 degree error. Two legislators, (Soldati and Woods) noticed, but didn’t recognize the Chief’s lie as a bluff. (Each judge was forced to testified publicly a few years later in the legislative impeachment case.)

5

If the first assignment by the clerk of court is not what higher political powers want, they can make a quiet phone call and even clerks of court are out of this loop. The judge gets replaced. When two people in the Court branch are allowed to hand-pick and substitute in judges in special cases, it goes beyond a mere appearance of impropriety — a new trial judge is inserted into the case to help manipulate the outcome. That’s too much political power in the hands of two politically appointed chieftains. I never understood why these two didn’t just run for political office — obviously they loved the game of politics, passing out patronage, wielding power. In my opinion, each was the wrong personality and temperament for being a judge with its repetitious day to day administration of justice. But they obviously (in hindsight) like being important and initiated behind the scenes favors for other important people. Elected office comes with public criticism and oversight — so doing the power plays through judging avoids all that messy criticism. That’s a dangerous thing in any government — when officials make themselves beyond criticism and review — and with the force and protection of law. I am always aware that even in civil cases, judges can manipulate the case facts to cause me maximum harm — pain, humiliation, loss of assets, for noticing these little judge improprieties. Noticing what judges and chieftains routinely do — is now second nature for me, after deconstructing so many appeals and trial records over two decades. New Hampshire has no presumption of random assignment of judge — and when a state senator sponsored a bill regarding assignment of judges, Chief JNad successfully testified against it. He told the Judiciary Committee that random assignment would be “a problem” and “tragic” because — “people have to follow a previous judge’s order. They violate the order and want some other judge assessing their case”14

13

The issue was the definition of a “ministerial act” because JNad’s claimed his authority to pick compliant judges for reassignment was a ministerial act. Despite his use of unfettered discretion, after his disqualification, and the violation of public policy, the state appellate court found it was nevertheless a ‘ministerial’ act under federal law. It was flawed logic and irrational, yet five judges clung to and defended this ‘ministerial’ power throughout the impeachment hearings.

14

The Senate Committee on the Judiciary, SB 151, April 7, 1999.

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§54 Assignment of the Judge

IN NEW HAMPSHIRE, WHAT DID MURDER AND DIVORCE HAVE IN COMMON? JNad testified to the legislature that he personally picked the judge for each homicide case, and “when Supreme Court Justices is getting divorced, [sic] I will specifically assign it to somebody.” That suggests that from 1992 to 2000, he manipulated two identifiable classes of cases in New Hampshire district trials. These are the potential area-of-interest study cases, because this chieftain deliberately interfered with the random, neutral assignment of these cases.

Keep that thought in mind as we go through more problem-outcome cases. Ask — was the judge assignment random? Or was someone specially assigned into this case to affect the outcome? In 2015, the New Hampshire Court established a discretionary “complex case docket” in Dover. (Administrative Order 214-59.) Remotely situated, away from the press (AP in Concord, and as far away as possible from the Keene Sentinel — both known for intervening to unseal Insider cases.) Plus special handling entirely at the discretion of the Chief - to keep or assign ‘important’ cases to whomever he wants. Why is this such a bad idea? Keep reading.

I can confirm he did that — the special assignments were frequently to himself, and then to a small group of alter ego judges. Using chieftain powers, both JNad (district court) and DBrock (Supreme Court) manipulated which judges sat on which cases, as insider favors or ways to get a particular politically-desired outcome. In my case, JNad granted “a motion” to put himself in control of my divorce — but there was no motion.15 Same thing in Thayer — no motion, but the day after Attorney Bill Brennan got served on behalf of his client, Supreme Court Justice Stephen Thayer, JNad switched out the judge and even the Clerk of Court had no idea. I found JNad knew shockingly little about the specialty of divorce law and including the statutory requirements mandatory in each divorce case. But who’s going to question a chieftain? Everyone assumes a chief would know and apply state laws and rules. He didn’t. He did know insider politics though. It took months to get him taken off my case — and then I suspect he just moved into the new video production closet, to micromanage my trial default by coaching his alter ego during her abrupt breaks during the first hour of trial. My brother stood with several procedural questions, and each time the alter-ego bolted from the bench before returning with her answer. Twice. Mine was the first video-taped trial in state history.16 The trial judge claimed she was testing the new video equipment. She moved the courtroom to the only one at Rockingham with a video production capability. JNad’s office was next door. Whether another judge accepts a special assignment steered by the Chief, or whether the Chief reaches out and takes over the case himself, my experience has been that the purpose is to manipulate the outcome. Generically, two things are happening that affect public policy — (a) the NH state constitution requires the most neutral magistrate ‘as the lot of humanity may admit.’ A quaint way of saying the highest level of neutrality. (b) Yet the judicial system circumvents this, with a behind-the-scenes practice that manipulates judge assignments. Literally permitting cases involving Elites and Insiders to get special handling. So those who think judges might be ignoring the Constitution here, may also appreciate the larger pattern of disregarding the Constitution as a limitation of judge power. Sometimes, it appears judges are at war with the Constitution where they want to act in spite of it, not because of it.

15

They manipulated the replacement of neutral judges to put in compliant judges into New Hampshire cases for 20 years — Belle Isle, Thayer, Bonser, Blaisdell, Douglas, Smart, True, all the Claremont cases, are indicative of the kind of the epic problem cases created by special judge handling, followed by public disclosure and complaint. In each case the defendant stayed a loser (each person received institutional non-person status) but the profession suffered greatly from the criticism, loss of prestige, and continued scrutiny in each of these cases. Deservedly so. Other states have these epic David and Goliath battles representing Pro Se people who are not going away.

16

A year later, the Gregg Smart Murder trial — also orchestrated by JNad to go to JGray became the first gavel to gavel live television coverage nationwide trial. The coincidence suggests someone at the Rockingham Castle decided a video courtroom was the way to national stardom. See the next chapter on media-hound judges.

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“…she’d learned that winning lawsuits was more than courtroom pyrotechnics. Most cases were determined before they started by the character of the judge or jury, and [Judge] Kenton Harlow worried her.”17

RANDOM OR LOTTERY ASSIGNMENT Not every state works this way. When I clerked in California, assignment was random from a list. As a law clerk, I would take in a stack of cases, and the clerk of court just went down the list and put the first name on the first case down the pile. Sometimes we were instructed to take in a whole stack of cases and dole them out one at a time to try to get one judge for one case, but it had nothing to do with the clerk favoritism, who didn’t play favorites. It was transparent, and you could stand at the counter and watch the clerk make the assignments. Next day, it would be in the computer and that was that. If you wanted to change judges, there was a process — also transparent. Federal court too, has random assignment. But for all courts, the monkey wrench in both the federal and state assignment processes seems to be the “administrative power of chief judges.” In New Hampshire, I though both men were corrupted by this power — they each took pains for each special case handling — to make it appear to be something else. Granting a motion, when there was no motion, for example. The judge took ill, when he was really playing golf. And now, all the ‘important’ cases are going to Dover.

CHAPTER

LAW-SYSTEM-GAMERS

5

There seems to be a lot of random chief-judge power-wielding going on behind the scenes — but then again the cases I cite in this book are highly manipulated from day one through the last final appeal order. Everyone in the legal system plays along — from clerks, to opposing attorneys, to highest judges on appeal. In general these are the cases where an insider gaming-the-system got caught. Some innocent victims ended up blowing the whistle. And some of these damn Yankees blew the whistle long and loud for two decades. No one got the biased outcomes corrected (some got new trials, but those ended up worse than the first.) But the other law-gamers sure had to scurry around and either pretend it didn’t happen, or cover-it up on appeal and in the ethics cases that came afterwards. If you are the victim, you’ll know. If you’re the Insider, you either know or soon catch on that the case is slanted to your benefit. Sometimes, they can’t lose for trying. A lot of incompetence and drama occurs, but not much actual application of the Rule of Law. There are also examples coming up.

SPECIAL ASSIGNMENTS Some of these cases have Insider status or media appeal. But usually it is to be a big shot and help out another big shot — personal relationships superseding job mandates. Presiding over the case may further the judge’s career. The case may underpin a special political or social agenda. Everyone in the community thinks the wife murdered her husband, so who do you appoint to handle that one? It depends on what the Chief thinks.18 Judges also have personal interests, friends, and private reasons for making ‘special assignments.’ A preponderance of cases in this book involve special assignments.19 Special assignment removes the case from “random” and “neutral”, and the outcome becomes an extension of a judge’s personal power prestige and control. The right person wins. The other side loses. The whistleblower loses most of all, because they have to be punished. It is a steered outcome. Inversely, there are judges the ol’boys do not want sitting on their cases, (Judge Pappagianis, for example) which suggests that some judges will not provide an appropriate sensibility and professional courtesy to Insiders. Those 17

Scott Turrow, Reversible Error, Farrar Straus Giroux (2002), 197.

18

Chief Justice Brock indicated he appointed retired Justice Bill Grimes to hear the first Claremont school funding appeal case (NH Supreme Court Docket 92-711) because he knew how Grimes thought so Bill could help steer the right outcome. As an aside, New Hampshire courts are ranked 4th most liberal judges in the country. Brock also claimed he knew the mind of Judge Johnson, and said he put him into certain cases for a specific desired outcome.

19

Not all cases receive insider treatment — in fact, I would assume a large proportion of cases get handled routinely by judges who care about being fair. But it is more than a few bad apples in the barrel. Judges have no incentive not to manipulate case outcomes on occasion, and some do it routinely.

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judges more likely to be neutral and judge fairly for both parties? The name Pappagianis never showed up on any of the lists for my appeal panels or conduct complaints, for example. Why not? At one point, I went to see Howard at the Supreme Court and asked to see the list of district court judges recused from my cases, and he didn’t want to show me. Turns out the list I eventually got to see was a short select list of judges he said were polled. Not all judges replied, not all were asked. It wasn’t random, and Howard couldn’t say who or how these names on the list ended up there, and not others. The chief, who was recused, still selected my judges, plus he appointed a retired deaf judge to hear my last case (I think it was about case #40, over five years.) That’s why I asked for judges from a different state jurisdiction (I asked for a Vermont judge, for a New Hampshire divorce.) Turns out an out-of-state judge presided over a state divorce in at least one other case, so it’s not so ridiculous as the pundits at the local paper opined. I was portrayed as a public joke by the local newspaper editor and mostly-male reporters, who carried judge-water by ridiculing me and other Ex-Wives of Judges for a year or more. Local coverage was largely gender-biased summaries that skipped over completely the issue of illegitimate crony judging. These were wide-area smear campaigns. A former bar president/Senate president joined in, buying a state-wide ad entitled Boobs who Bash. That was the level of media attack — adolescent comic with slightly misogynist tones. Still I was surprised that I was targeted as ‘the problem’ and ‘the disruption.’ I was an innocent victim who just happened across a key to the hidden world of judges-who-fix-court-case outcomes. I was surprised by the public attacks. It seemed as though all the world wanted to do was change the lock. I had no idea about how judge-victims get automatically reduced to a nonperson status in court, and that this is “a non-negotiable ideological barrier” to justice and fairness for all.20

POWERFUL FAVORS FOR POWERFUL PEOPLE The political pull necessary to get a chief administrative judge to arrange for the replacement of a presiding judge on the day of trial is a powerful political favor. We’ve seen how a compliant judge can reverse the trial outcome, even after years of pre-trial building-block rulings. It involves collusion and misuse of administrative powers of the court — for the purpose of improperly influencing a case. At trial, there will be judicial bullying, because no self-respecting lawyer will sit by quietly, watching hard pre-trial work get systematically undone. Especially by a last-minute replacement judge. This kind of case is handling an unreported crime — because there is no place to go to report it.

Example One: The Belle Isle Sisters of Providence21 The convent was a defendant in a zoning case brought by powerful state political insiders to stop any development of the island. The convent sought a change to the island property for sale and development to raise needed funds to sustain their Order. The island/school/convent sits on the Atlantic Ocean in Portsmouth Harbor, N.H. One judge presided over the case for almost two years, making pre-trial rulings on issues like high-water/low tide lines, inherent flexibility in municipal zoning approvals, and density issues. Normally these are case building blocks, each issues argued and heard pre-trial, excluded or relied upon at trial. On the first day of a three day trial, the clerk of court announced a change of judge. The new judge was not prepared, had not read the file, and was not experienced in municipal, zoning, or ocean-tide law, but preside over the weeklong trial. It was announced that the presiding judge had taken seriously ill. A trial continuance was not offered.

A Compliant Judge Judge Coffey already had established a pattern of being reliable for the senior judges in Rockingham.22 The boys already knew that she could be counted to clean up in cases where they were forced to step down. As the replacement in Belle Isle, she reversed pre-trial rulings and ruled against the convent.23 20

Kren & Rappoport, supra, Victims: The Fallacy of Innocence, @ 75-76.

21

Charles DeGrandpre, et al v. Sisters of Providence, Belle Isle Partners Trust, City of Portsmouth, New Hampshire Supreme Court Docket 96-795, accepted January 1998. See also Powers v. City of Portsmouth, Rockingham Superior Court No. 94-E-562.

22

JNad and JGrey.

23

See also footnote 3.

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The Belle Isle Sisters had a Boston attorney. He was not used to trying cases in New Hampshire. He was shocked by how rudely he was treated, that the judge was unprepared, unprofessional and behaved in a manner he said was “disrespectful.” She also reversed and gutted pre-trial favorable findings in a multi-million dollar case.24 As was her wont, she wrote scathing orders suggesting the nuns rezoning plans should be considered criminal. She wrote “it is not worth the paper and ink” to write the order.25 Different details are in the financial chapter. The nun’s lawyer was tipped off by a phone call after the trial.26 He hired a private investigator, who confirmed a Rotary luncheon conversation where an Executive Councilor thanked the administrative chief for arranging the new judge for trial. Graciously, he acknowledged his participation. The counselor had a quiet personal investment and strongly opposed the convent rezoning from the start. The investigator also discovered the first day round of golf. The lawyer filed an affidavit in the appeal record. Later, he read in the Boston Globe about my criticism of Judge Coffey, (my divorce case was also transferred to the Kingdom of Rockingham.) In each case, she threw over the case as an insider favor. He tracked me down to compare notes. Sometimes, this stuff is serendipity. I also experienced her intimidation first hand. She was a judicial heavy for special cases. She employed her own style of personalized attacks throughout the case — humiliation and degradation against the losing side.27 The ridiculing language Herbert Horgan described fit with my experience — a perverse pattern that employs some form of personal contempt, threat, and debasement of her victims — as though we caused our own losses because we deserved what she was doing. Judge Coffey had similar moments in other cases — a kind of creepy sub-theme designed to devalue and demean the losing party, with language expected to frighten them into submission to her authority. It’s a page right out the Stanford Prison Experiment Guard Book, but at the time, I was unaware. “Appropriate sensitivity” is biased behavior by a judge that gets excused by the system as being an act of compassion or entitlement for those inside the group. It also has other names.

CHAPTER

Appropriate sensibility Professional courtesy A sympathetic judge A special favor Favoritism

5

Bias Moving down this word spectrum, the language of preferential treatment becomes more realistic. Preferential treatment is not for ordinary people28 — but for the powerful, connected, or influential in state affairs. The other side, by necessity has to become a non-person, without rights. The acts described above involve the element of secrecy. They are passed off in the ordinary course of business as a legitimate function — replacing an suddenly-ill judge. A lie. Because each is a concealed favor, each act represents a potential problem. Professional courtesy is not a victimless act — it creates a mirror harm, as a consequence of each special favor. These guys know how to couch what they do with

24

Once I started going to court in Boston, I understood better that New Hampshire had become acclimated to abusive, berating, temper-tantrum styles of judge behavior. Not all court systems spawn that kind of imperial behavior. It was refreshing to go to court where everyone acted relatively dignified and respectful — whether or not they were winning or losing.

25

See Chapter 2 §25 regarding the economic slur.

26

This happens a lot. People stung by certain judges — and who complain publicly, hear from others behind the scenes in the most unimaginable ways. It tells me that the judges aren’t doing this abuse in only one case — it’s a pattern.

27

This sets the victim of these cases up for the great defeat — a humbling process of being powerless while caught in a system that is broken. No one wants to go here, and no one goes here voluntarily. It’s a life altering spiritual marker. Some of the students assigned the role of ‘prisoner’ in The Stanford University Experiment suffered severe psychological trauma for decades. Later, we will look at this kind of loss and great defeat for its redemption value. For now, see the separate brutal acts of the judge for what they are, and recognize the birthday of the loss of innocence in the court system for each case.

28

Distinguish from acts of compassion by a judge. These are also done in public open court — not secretly arranged. The recipient usually is not the richest or most powerful in the room. Compassion is a different animal than judicial bias and favoritism.

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high-brow language. According to conventional wisdom, the term “appropriate sensibility” means refined awareness & appreciation in matters of feelings. (This definition is from the internet.)

DENIAL Initially one might excuse a certain amount of role-playing as a new judge learns the decorum and court procedures of how to act when hearing cases. The Greek word for actor is hypocrites (hypocrite). This discussion is about the pervasive process of judges who act the role and embrace the power-trip — but miss the point that justice is for all. That’s part of the job description. Each act of favoritism represents an act of denial. Franciscan Father Rohr calls this the shadow self — where people who are not evil, practice and reflect an evil hypocrisy. The dark side of this ‘shadow self’ is reflected across the institutional milieu29 of all courts, with an incidence that suggests it is a widespread private culture of favoritism, unacknowledged and unchecked across the whole national system. Legal brotherhood embraces this hypocrisy by practicing denial, individually and as colleagues. Both seek or receive preferential treatment. The accumulation of personal and institutional power by judges — bestowed as favors by the institution — is a practice widely reported by court users, but ignored by court leaders. It appears the institution is in denial, as much as corporate bodies can have human personality flaws. My question is — do we have a disproportionate number of Greek actors in the role of judges?

THE ART OF LANGUAGE In court, acts of professional courtesy and cognitive dissonance are obscured by court language that soft-pedals the real character of these actions. Judges don’t disclosure which case rulings and outcomes are based on professional courtesy. When ordinary people involved in the same practices get caught, they get charged with a crime. Here’s a sampling of that flowery overcoat — different words for the same act, merely a matter of rankism and semantics 30 — Pandering Bribery

§

Influence peddling Fraud Extortion

54

Conspiracy Deprivation of honest services A transactional crime Obstruction of justice

SWITCHING THE FORUM, CHANGING THE VENUE So if the first judge assigned to the case is perceived to be not inclined to go along with professional courtesy, the aggrieved insider might try to change to another forum. That means an automatic change of judge. If a party believes a judge is biased and unable to fairly try the case, they ordinarily file a pleading to get the judge to step down (to recuse). Or try to have the case transferred to another location (called a change of venue.) Anticipate you will be accused of forum shopping or judge-shopping. But Insider judges don’t give up easily. If you’re going to try to recuse a judge, Chuck always said ‘use a elephant gun, not a pea-shooter.’

29

Fr. Richard Rohr, Shadowboxing, Salvation from the False Self, Center for Action and Contemplation, May 14, 2014.

30

This is a list of the actual terms used to file criminal charges against judges and politicians about acts of favoritism.

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Fact is, changing forums and judges happens every day, and sometimes it is appropriate and necessary to get a cleaner, non-biased jury pool, or to remove a judge with connections to a party, or because the case was improperly filed in the wrong county or court in the first place. Personally, I asked that my divorce case be moved to Vermont. I was a practicing divorce lawyer and I couldn’t tell which judges in New Hampshire were trustworthy. Pappagianis name hadn’t surfaced at that point, or I probably would have asked for him.31 But the request to change a judge can backfire. The replacement judge may just carry the water, sometimes with a vengeance for the perceived insult of forcing the removal of a Brother Judge. Judges and Pet attorneys can get changes of forum, but outsiders, who file such a request, will meet an high wall. If successful, may find a first judge-bias will follow with the move. So it may be that the uphill effort to avoid judge bias will be predestined and futile. But not always—

A judge’s prejudicial pre-trial comments are a proper and adequate ground for change of venue. In a 1960s civil rights case in Montgomery Alabama, Morris Dees got a change of venue based on the judge’s public statements that “predicted Jimmy Lee McCloud would get the death penalty.” The trial was moved to a Birmingham jury, and the conviction was for second-degree murder — the difference between a ten-year sentence and one to death.32

CHAPTER

Several examples show how JNad assigned himself to judge divorces, and micro-managed the state’s high profile murder cases. (Not just for Rockingham Kingdom.) For two decades, he refused to step down — even after being appealed and reversed multiple times in different cases. Newer litigants would still discovered conflicts of interest he failed to disclose. For my case,33 I made six motions, including an interlocutory appeal to the Supreme Court before I got him removed.’34 After that, he ordered a special transfer35 to Judge Coffey. I never heard of her, but wondered why so far away? There was no electronic filing at the time, and it was a hardship to drive hours each way to file in court. Everyone, including the seven interveners in my divorce — all lived and worked in Merrimack County.36 This change of venue violated the rules of court on its face, and I should have acted as soon as I got notice. I write about my mistakes and my pattern of later insights, because I hope others will gain something good out of them. This female Judge was the cleanup judge that both Judges JNad and Grey routinely transferred their cases to when forced off a case. Their home base was Rockingham County, where Coffey started out in the 1980s (during law school) as Grey’s intern. She wrote on an early resume that she was experienced ruling on district court cases as a justice of the peace37 when Judge Grey had to step down. Remarkable that a student intern would sit on the District Court bench — instead of transferring the case to another district judge in the same courthouse? As for the precedent a Justice of the Peace presiding over a District court trial? There doesn’t appear to be any authority for that. So Coffey was her own precedent and authority. She was mentored on her services in these kinds of special cases and had proven reliable for the judges who appointed her.

5 31

My enemy’s enemy….the Art of War tactical thinking.

32

Morris Dees with Steve Fiffer, A Lawyer’s Journey, ABA Books, (2001) at 138.

33

He was wily when he took my case. When I asked, he said he ‘granted a motion for special assignment.’ There wasn’t any motion.

34

He claimed he stepped down, but was not recused. Take notice of this awkward language. Awkward wording is often a flag of semantics games to quibble that he was not “disqualified” and prohibited from appointing and transferring the case to JCoffey. But the state of recusal is like the state of pregnancy. There’s no room to quibble.

35

I was flying blind at the time, unaware of George Blaisdell or Mary Bonser or the s other cases involving JNad’s pattern of resistance and interference in cases he selected for special treatment.

36

I write these details now almost twenty years later, so you won’t be as clueless and without guile as I was in 1997. I wanted to believe in the goodness of judges. I suspect it is a part of that good girl upbringing in the 1950s that made us all yearn to believe in American authority figures. Recognizing it isn’t there is what Father Rohr calls Falling Upward, Jossey-Bass Publisher (2011). Strongly recommend this small primer on growing through life disasters for those over age 50.

37

A “J.P.” or Justice of the Peace, is a historic office in early American courts, where a citizen is made a lay judge. Some states still continue this tradition. I was always a JP in New Hampshire.

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Hanging On After Recusal JNad also had a hidden pattern of staying involved and interfering in cases after being disqualified.38 Disqualified judges stay involved (1) to get revenge for the insult of being removed; (2) to control case handling and outcome; (3) as an act of dominance. Both the two NH state supervising judges (and others) use the same erroneous dicta and other language to justify interfering with a case after being removed from it. Judges seem to rely on one erroneous excuse — they routinely twist an exception to the rule that disqualified judges may not act further on a case. They call their interference a ‘ministerial act.’ The two state chieftains misapplied a federal law exception as support that they were allowed at law to continue being involved after their disqualification (after they were exposed publicly.) Those I know personally are each Supreme Court judge divorce cases. They were caught also in Bonser, Belle Isle, and George Blaisdell’s three cases. If you know of more, I’d like to hear. David Brock (Chuck’s old law partner) was recused but continued to cherry-pick judges on my appeals, panels, and conduct complaints, stacking the process with Ol’boys. He claimed it was his ministerial authority to clean up a case after being disqualified. That cleanup role is limited to putting the papers back in the file and handing the file to a clerk for rotation assignment — not handpicking the successor. Officer of the Court dilemma. Where does one go after catching a top judge playing fast and lose? I found it is a game of bluff — who is willing to confront a judge about individual acts of dishonesty? Can you use the word lying when describing a judge? Or does it have to be rolled up in a semantics blanket? How about using the word dishonest? We’ll catch up what other Officers of the Court discovered, when caught in this dilemma. Trying to prove that a case transfer has been transferred to a compliant judge is frustrating and can be expensive. Proving it is a matter of luck, because the court avoids public record searches of court computerized data. The judges that do this fixing-a-case-outcome, may do it several times in a career. Slippery slope stuff. So there may be a network of other victims. Double-checking what the judge says and writes sometimes can help other victims identify acts of ethical compromise.

LINKAGE BLINDNESS The lack of information about individual (and collective) judge recusal practices prevents a comprehensive assessment of how prevalent the problem is. As long as judges can keep public data to themselves, segregated into separate citizen case records in multiple courthouses, ordinary people can’t find or expose patterns which might allow them (or investigators) to track this basic flaw in case handling.39

Correlation between Divorce Court, Bankruptcy Court, and Winner-Take-All Cases Corrupt judging practices are creating poverty. People in these judge-disaster cases end up bankrupt. The pattern appears across the country. No state statute — even in equitable distribution states — provides for winner-take-all and bankrupt outcomes as judge tools — especially when dispensing favors to friends or punishment to critics. No one seems to be correlating this kind of “discretionary” judge outcome with avoidance and violation of state statutes. But I think judges are systematically evading the law of property division and support. Because some trial judges are doing this repeatedly, the correlation between judges creating poverty outcomes, as an unnecessary and inappropriate exercise of judge power, suggests that by not following state law in specialty law cases (such as divorce, probate and receiverships) but instead providing outcome favors in property distribution, courts are making their own social policy. And that social policy is the winner-takes-all — an outcome that violates established public policy. It’s never a good idea to have judges enacting legislative public policy. On a personal level for the individual whose assets are transferred away, or on a broader scale (making a new class of poverty — people who went to court with assets, and came out bankrupt) it’s a life altering experience.

38

See the § on judge in a closet, and the handwritten instruction to the clerk of court in the Bonser case.

39

This institutional segregation of case data is called “linkage blindness.” See Author Pat Brown, Killing for Sport, 138, 154, New Millennium Press (2003) — Brown writes with a remarkable insight about subtle criminal patterns in people that live among the normal “us” that generally go unnoticed.

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Bankruptcy court may another means of getting a fresh approach to a case disastrously determined by an insider — or it can contribute more to the court cesspool. Cronyism extends across federal courts as well. Sometimes, flawed results can be partially reversed or avoided by bankruptcy, when the divorce court outcome is inconsistent with the mortgage and financial paperwork. But this makes a second spider web for the loser awarded underwater assets or all the debt in divorce court. But that happens frequently, when divorce court judges get in a rush at the end of trial to award everything of value to the Insider, with the liabilities to the loser. You can end up feeling like your whole life is consumed with court filings. Court-abuse support groups are recommended for people caught in this law quagmire. They become their own lawyers, often with rooms, time, and precious limited resources sucked into the process. Holmes & Meier describe “the odd atmosphere of mutual bewilderment and skepticism” in another irrational authoritarianism social example, where men on trial, when presented with “massive evidence of inhuman activity, responded invariably [with] submitted evidence to show that they were good human beings: honest, law-abiding sensitive, and concerned for the well-being of their families and subordinates.”40

55 COST OF JUDGESHIPS

§

How do lawyers get upgraded to sit on the bench? Generally, it is a matter of money and political capitol. It also can be illicit sex, which also appears to play a roll in some political appointments.

CHAPTER

For states where judges are appointed by the governor, these appointments are political payback, gifts to friends, lovers and mistresses, and of course, campaign contributors. The Governor won’t interview just anyone about an upcoming opening on the bench — and the opening may be a hush-hush secret to keep the unworthy from applying. In New Hampshire, the going rate to a governor’s campaign was $50,000. My ex had been secretly manipulating political dark alleys to get me appointed by a governor to some judge position. Unfortunately, his candidate for governor did not win — but for a year, I was shocked to be invited to a number of Eagle Events41 — like meeting the President when he landed briefly in Manchester. Somehow, I thought, I had mistakenly gotten onto someone’s political A List. Since I hadn’t donated wheelbarrows of money, (and was economically mired in a messy divorce) the political invitations were puzzling. After awhile it pieced together: my soon-to-be ex had frequently suggested I do more jury trial cases to get ”judge experience.” He himself had been appointed to the state Supreme Court without any trial experience. A judgeship pays a salary — something I never received at work in our law firm. So a judicial appointment would relieve hubby of the thought of paying alimony when he made his exit from our marriage. [Trust me, this guy schemes out everything…..] His bill for legal work for the Governor campaign got allocated as a donation or contribution of sorts — in the favor or ledger column — over to me, the little woman, entitling me to fly with the eagles. Unfortunately, Chuck’s candidate did not win the Governor race.

5

The rate in Florida is reportedly $100,000 to $140,000 for a county court appointment. In New Mexico the ‘Pay to Play’ scandal indicated judgeships were much cheaper in the southwest, with one judge admitting to paying the governor only $4,000 but at the same time recommending to other lawyers that they make weekly contributions to the state political machine — ‘as much as you can afford’ to get in line for nomination to opening judge positions.42 Political operative Edgar Lopez claimed he could influence Governor Bill Richardson on judicial appointments. He reported contributing up to $55,000 to the governor, plus another $33,000 to state legislator elections.43

40

Holmes & Meier, supra, at fn. 7.

41

Wealthy patrons who donate $50,000 to the state Republican party annually.

42

CapitolReport New Mexico, “Money and New Mexico Politics”, May 22, 2011; State of New Mexico v. Judge Anthony Cobos, Third Judicial District Court, Docket M-14-FR-201400096 (2014).

43

Denver Post.com, N.M. Politico pushed judge appointments, May 6, 2013.

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The $30,000 figure seems to be rough, as the amount of a donation to N.M. Governor Susanna Martinez campaign by brother and co-marina owner for a magistrate court seat/temporary judicial appointment. The political horse-trading of having a slightly scandalized (Democrat) judge who retired early to get his judge-pension, created a GOP Governor vacancy, shortly before the primary election. It was a quiet opportunity for the Governor’s staff to trade favors. There was a Mormon connection. One brother donated, the other brother got the appointment to fill the short-term vacancy — an early edge that helped him hump a win in the primary election. A shell game of shifting favors and linkage blindness. There are ballpark figures all across the country,44 with larger states having larger price tags. Lesser judgeships, such as probate court positions or probate court positions, may be given to campaign aides, top fund-raisers at a local level, political loyalists, relatives of large donors, spouses of influential lawyers, spouses of legislators, mistresses and former girlfriends. There is also a nepotism thing developing — as the children of the original 1970s ol’boys are graduating from law school. All are a class of people that a governor trusts with handling the Governor’s political powers. Political favor means passing the reins of insider power to trustworthy insiders, who each will inherently understand and respect the unwritten, unspoken obligations to other Insiders when necessary. It has been a closed club since states began switching over to mandatory bar associations in the early ’80s. An appointment to the bench carries an income in the high-five to mid-six-figure range,45 extraordinary benefits and vacation time, and unmatched retirement income (without contribution). Appointments may be officially for a life-time, or more frequently unofficially for a lifetime because it is so hard to remove a sitting judge from office, even in states that have elections.

BUYING A JUDGESHIP OR A FAVORABLE RULING Some courts46 have a long history of passing judgeships and court rulings in exchange for hard currency. This Chicago/ Brooklyn old style is more blatant than the favor-passing practiced by more discrete jurisdictions. One 89-year old retired New York Supreme Court judge told reporters1 about the long-time custom and practice of selling judgeships. He admitted that 30 years before, he put $35,000 in a bag and traveled to Tompkins Avenue in Bedford-Stuyvesant, where he purchased a promotion from Civil Court to Supreme Court. Then, the cost was $35,000 for district court and $50,000 for the intermediate level — Supreme Court. He counted out the money by hand to a “well-known bagman — a lawyer who would serve as go-between for corrupt jurists and the attorneys who purchased favors from them.” He was supposed to pay the additional $15,000, but never did despite pressure to do so. He attributes this to why he was never able to get on the appellate division. He complained directly to a powerful party leaders who told him, “We’re gonna put you in the criminal part of the court. A criminal court judge can sentence a man to 10 to 20 or 5 to 10. Ain’t that worth money? If you can’t make money off that, you’re stupider than I thought.” Of this act of selling and buying, he says, “It was possibly a crime … to demand it or to pay it.” “But practically speaking, few judges would have worried about being prosecuted because “it would be difficult to prove, and who’s going to testify?”47 The current district attorney called the way judges are elected in Brooklyn a “farce” and one lacking in any significant public input. Appointments are not the only avenue to judgeships. Election has its own perils. Challenges to incumbent judges can be risky, as Matt McMillian found out in Florida, when he challenged an incumbent for election and won. The bar

44

It is of course, illegal to buy a judgeship, so don’t expect to walk up to someone to ask the going rate.

45

For a list of state judge’s salaries, see the National Center for State Courts — online. This non-profit agency collects and analyzes a myriad of data about state court caseload statistics, state populations.. See www.ncas.org

46

From several stories by Newsday, Inc., staff writers Anthony M. DeStefano and Dan Janison, June 19, 2003 regarding retired Judge Thomas R. Jones and Brooklyn Democrat district leader Thomas Fortune. Brooklyn District Attorney Charles Hynes initiated the investigation and grand jury to look at the way judges in Brooklyn are elected and the extent of the problem today.

47

Id.

301

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CHAPTER FIVE — TRICKS BEFORE TRIAL

retaliation against him was so ugly and threatening, his wife wrote they were in fear for the lives of their children.48 The threats were not only strong but deadly49 — you don’t challenge an incumbent judge. After winning his election, Judge McMillian resigned, deciding it was better to be a live attorney than a dead judge. In Florida, apparently you ask permission first before throwing your hat in the ring.

56 JUDICIAL PATRONAGE, PART II

§

Takin’ care o’ friends takin’ care o’ business.

CHAPTER

Judges hold the authority to assign money-making positions in cases before the court. The positions pay attorney and friends of the court out of the estates of incapacitated, or deceased people; from state funds; or by ordering the parties to pay each of the positions from the party’s assets and winnings. The judge is collateral and insurance that everyone appointed will get paid, sometimes without limit, and often with cursory or no scrutiny of the bills and costs submitted for payment. This court-generated income stream is a significant proportion of annual income for many law firms — even the blue-chip firms — count on this guaranteed income for overhead. Solo and small firms get by and cover standing expenses through court appointed work, even if it takes the state six-months or more to pay. So while litigation may reap big bucks from a win, the bread and butter of court appointments stabilizes law firms, and is a reliable income stream that almost no attorney wants to jeopardize by calling out or pissing off a judge. Certainly not reporting a judge for ethics or criminal law violations. Even ugly judges can be the most popular person around. Lawyers and judges who use appointments as favors, assume it will not come to a stage where they have to publicly explain or account for this abuse of power. The attorneys and other insiders are grateful, and look on the judge as a patron. All minimize and cover-up these private exchanges, where the lawyers get lucrative business and the judges get admiration and gratitude — each gets what they need by ignoring what Father Rohr calls “Life-Lies. He wasn’t speaking about judges per se, just people with the following success-oriented traits from his list:

LIFE LIES by Father Richard Rohr

5

Disconnected from one’s own feelings and in tune with the feelings of a group or audience…. A strong need to succeed and often doing so. When self-esteem comes from competence in the outer world. People who thrive on praise, recognition and admiration. Those able to play whatever role any group expects of them. Their root sin is “deceit” (embroidering the truth so it will sell.) There is often a deep and terrible fear that they would not be loved if they were not successful. And first of all, they deceive themselves….50

48

Letter of Florida Judge Matt McMillan and his wife.

49

This tactic of threatening family and children, friends and staff is common; watch for examples as you continue reading, and I’ll try to note it in the whistleblower/challenger cases I report. It indicates the degree of fear those inside the castle feel. Whistleblowers and reformers threaten them, and they retaliate both through the power of the institution, and personally.

50

From Richard Rohr’s Daily Meditation: Type Three: the Need to Succeed, Friday, May 30, 2014.

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§56 Judicial Patronage, Part II

In small states or small court districts where there are fewer inside players, paying and receiving roles necessarily overlap and intertwine — sometimes for decades and over generations.51 The degree of cordial interaction perceivable between judge and appointee can be a signal. The judge has a different tone of voice and style for friends. Judge demeanor is a form of play-acting. As one who has been on both sides of this stage-show, I can sense when something is afoot long before I can prove it. Trust your senses to detect the tiny indicators that something is not right.52 Without knowing a judge’s background, career connections, former associates, social and family relationships and aspirations, then intuition, hunches and other sixth-sense indicators are the best available tools for an outsider to detect and prepare for potential disaster caused by undisclosed relationships and hidden club factors. HINT: If unacknowledged bias seems like it could be a problem in a case, it may be helpful (later in the case) to ask early — on the record, at the first opportunity, if the trial judge knows of any potential conflicts with any one associated with the case?53 Make sure the question and answer are fully on the record, and don’t accept an in chambers conference without a court reporter recording it. I don’t specify anything. Just have the judge establish he/she is aware of no potential conflict — at the start. The problem, as always, is asking the right question. Judge Coffey had a relationship of sorts with one of the Belle Isle expert witnesses, who provided her (on behalf of his developer/boss) with a ‘corrective deed’ moving the boundary lines of the judge’s property to provide her home with ‘new’ oceanfront property and view lines. But no one would think to ask, Gee, Your Honor, have you had any remunerative property-line correction discussions with any of the experts in this case, for which you agreed to remove your opposition to his boss’s oceanfront development, and isn’t that an undisclosed secret payment/conflict-of-interest issue? Okay, avarice and greed may still exist as motivators for some judges to hide conflicts of interest, but what about those cases where there isn’t an obvious greed or extortion factor? JNad drove a Rolls, he wore European designer, and retired, he travels the world as a hobby consultant to foreign governments. Why would he consistently over his career, deliberately hide his numerous conflict-of-interest relationships? There’s a generic reason.

§

56

51

New Hampshire insured tight insider relationships by excluding non-residents from applying for law licenses. I was in the first class of lawyers from out-of-state — after the U.S. Supreme Court struck New Hampshire’s lawyer residency law. ‘Course, the ol’boys found other means to discourage out-ofstate applicants.

52

Gavin De Becker, The Gift of Fear And Other Survival Signals, Phoenix Audio Books, 2006.

53

This is a defensive question, so I use the most deferential tone, and do not ever engage. Simple unchallenging tone and question, on the record. Just checking off a box.

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Judges trust and protect those within their own circles — other people like them Due to construction design and interpretative semantics games, the language of judge ethics cannot be applied by outsiders. Judges judge themselves. For example, judge-mandatory-disclosure rules don’t protect the public, because of the extreme latitude in the language (perp-judges manipulate with semantics.) The rule about mandatory disclosure of any fact the judge knows that might provide the appearance of conflict of interest, for example. The standard is an objective one — what would an objective outsider think — if they knew what the judge knows? Almost always, judges refuse to use an objective outsider POV. It’s not what the judge thinks about his appearance of conflict — it’s what 10 random people from Main Street would think. Study would also demonstrate that certain judges routinely avoid mandatory-disclosure-rules when they want to sit and decide cases where, if facts be known, the judge has a clear actual conflict of interest. Cases where massive harm happens against the uninformed party. These cases are not just a hypothetical potential appearance of conflict, (which is the actual standard, under the rule.)54 Court rules dealing with mandatory disclosure of potential conflicts of interest are deliberately vague and out of touch.

CHAPTER

Remember when I wrote that Chuck told me when we were dating that he wrote those rules of court when he was a newbie state Supreme Court judge? He had no experience writing laws and rules, no trial experience, no special training. His former law partner, the chief judge, just gave him the assignment after Chuck was appointed to the top court as a political favor of Governor Meldrim Thompson. My point is those making-their-own-rules-judges are human beings. There are faces and bodies behind what’s written as law. Six years after the ‘new rules’ were released, the Chief did an end run around the New Hampshire legislature and state citizens, when he took Chuck’s rules and slipped past a procedurally defective state Constitutional amendment — making Chuck’s court rules into Constitutional state law. I know my viewpoint of his work is skewed, because Chuck to me was a mentor, a husband, and a former loved-one. But there is an objective side to the experience of intimately knowing someone that says those court-man-made-rules had an inherent self-interest, lots of slippage/room to manipulate disciplinary outcomes, and built-in room for special handling and favors to friends, and allies, — but also maneuvering room to punish dis-loyalist, enemies, and unimportant nobodies.55 Since I am writing from the serial perspective of all five of those categories of people, I have a unique, although tinged viewpoint. Institutional Forces and Fear Judges increasingly feel they have a high need for protection from the rest of the world — namely those people who don’t look and act like that individual trial judge. Categorically Outsiders and Nobodies are psychologically threatening to trial judges. That is one reason trial judges want all nobodies to be represented by lawyers — loyalist in the club, who can protect judges as a first line of defense. It helps explain why trial judges are on an intense campaign to eliminate outsiders who represent others in the courtroom. Judges not only fear outsiders, but they use their authority to create fear in outsiders. What the Court/Bar rule system is overlooking — is the rapidly shifting real world of new borders and networks, new groups and connections — new people and entities for each judge to decide whether or not to trust and protect. The new groups don’t look like the old reliable insider WASP network anymore. Another factor we will explore is — the advent of corporate and government entities, — making the humans, (and human acts) hidden behind the curtain, — able to evade social and legal responsibility at law. Yet they represent wealth and power so immeasurable, it is hard to comprehend on an individual scale. The influence of these groups (since the Citizens United decision announced by the U.S. Supreme Court) represents the kind of power and authority traditional judges inherently value and respect. Yet without borders, without national priorities, these global institutional forces represent nothing but bad news for individuals, filing in trial court for protection or relief — those expecting to use and apply their fundamental pocket-Constitution rights case by case across the country. Remember judges think in black and white — which category will they treat with special favor? High authority global corporations or individual ranchers and farmers? The business enterprise model of democracy has always been plagued with corruption and exploitation.

5

Democratic government as a model has both corruption and inefficiency, so it should be no surprise that the question for every sort of corporate-interest case, national security claim, wealth and power litigation is one of what is the system doing to protect the little people who represent 95% of the population? But both with individual judges at the forefront, and in national policy (with a top court that increasingly takes control over stage agenda social state agendas) there is an absence of discussion and actions on how to balance the problem of abusive judge propensities? How to balance the inherent inequities in the legal system to protect ordinary citizens from a known down side of democratic government in the hands of an elite group of leaders? It’s a matter of housekeeping priorities — whose house does the Court focus on cleaning, while reaching out to assume even more national political power?

54

This isn’t a wayward and minor ‘harmless error’ problem. Nor is it a sloppy rule-drafting problem. It’s an enforcement problem for the public. Designed for internal enforcement only. Not public or external enforcement.

55

See Appendix C, judicial canons.

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§56 Judicial Patronage, Part II

WHY WOULD A JUDGE WANT TO HIDE CLOSE RELATIONSHIPS?

Legal political circles are like country clubs; over the last 50 years, the judiciary has developed an even greater tendency to elite self-containment. As a discrete society, set apart from the most of the rest of the population, they are wildly out of touch with people not like them. To strengthen their bonds of self-protection against the hoards of outside-others, they trade in discrete and profitable favors over long periods of time. A judge may want to handle a case involving a friend, or a friend of a friend, classmate or associate or a myriad of social connections — for his circle of trust, friendship or influence. The most powerful ties for the two Chieftains were the WASP inner-circle, and another of Middle Eastern, Syrian, Lebanese heritage/connections.56 Judges often explain this (when caught) as having compassion.57 That fits into the definition of being a patron who supervises and gives protection and financial support by private benediction — compassion and largess — but only for those within the inner circle of his group.58 Being patroné. My occasional Mexican day laborer/rattlesnake killer used to call this being patroné. Every time I was lined up to make a construction mistake — like digging a hole for a heavy fencepost in the wrong place, or mixing cement the wrong way, he literally would back away from me and sing out, you patroné, you patroné, he insisted. So I suspect there is also some element of taking responsibility for screw-ups in that whole patroné system. I wish Melo would have just told me I needed to move the hole over 18". But this little man had his own strict social class rules. That is my employee-deference-to-the-boss experience. He watched, while the boss made the mistake. He never criticized, and later would commiserate with me. But he wouldn’t offer suggestions or help organize. He would only follow my lead.

There might be potential political opportunity. Pandering to the politically powerful is a time-worn motivator, especially for people who might later assist the judge’s career. (Think of it as accruing brownie points.) The judge or spouse or children have private financial, legal, family or personal relationships touched by the case, or had such a relationships in the past and just likes/wants to financially help out another insider. The judge has an undisclosed financial interest in the university or corporation or stock or business, or a large personal loan from one of the people involved — almost always this loan is not disclosed on the annual mandatory financial reporting forms for judges. The judge may dislike the accused for any number of reasons that are not apparent. Judge and defendant likely have never had contact, but the judge dislikes what prosecutors pre-program the court to believe. The judge may think he knows and is adverse to the defendant’s cause, belief, politics, religious ideas. The defendant slips into the status of a negative icon, not an individual. The judge could be courting media attention for political advancement or self-aggrandizement. The judge may harbor prejudice for certain races, classes, genders, families, lifestyles, or types of people, or for the idea of religion in general. A judge may have a private grudge or intolerance. For example, everyone with court experience knows Judge Gray couldn’t stand crying women. He has ordered several removed from court, one for an involuntary mental health lock-up. (Course, Alice True was just being stubborn and she refused to sell the judge her land.) Many judges have a propensity to favor the prosecution. It’s a widely known bias within the system, unaddressed. Criminal defendants have slightly higher status than dog poop, but no one is teaching judges how to resist or offset this systemic bias in individual cases. Rarely, has this bias tilted toward criminal defendant rights. This favoritism is a decided slant and bonding process between judge and prosecutor, sometimes over many cases. Pace Law School Professor Bennett Gershman writes extensively (chapters!) about not only the ex-parte communications that often take place between prosecutor-judges, but how the judge and prosecutor have a symbiotic relationship — one feeding/supporting the other to investigate, try and sentence defendants:59 Excellent treatise…here’s an except: 56

Ethnicity and heritage has proven a surprising hidden factor in court and national politics at the state level, including the inner circle of trust and friendship that chiefs provide help and protection for. I don’t know why Lebanese appears to frequently get passed off as Syrian heritage, and other broad brushstrokes, but this always-not-mentioned-factor showed up in different NH state power-circles over two decades. I always though New Hampshire was a cheap date in national politics — meaning the cost of a Congressional primary race in California was a hundred times higher than one in New Hampshire. If an outsider group is looking to make an investment in national politics, New Hampshire is a cheap date.

57

Judge staff have also expressed this view — that these illegal acts are ones of compassion and human decency — but they miss Father Rohr’s true test for compassion ….

58

Cross-reference fn. 20.

59

Quote from Bennett Gershman, Prosecutorial Misconduct, Clark Boardman Company (1986) at 13:13, 560.

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“Prosecutors generally enjoy a close relationship with the judiciary.60This is not surprising. Defense lawyers appear briefly and then depart, but the prosecutor and the judge remain in the courtroom together to handle the next case. Moreover, the shared function of serving the public in a worthy cause generates feelings of respect, collegiality, and mutual support. To function effectively, each must be able to rely on the other’s integrity, competence, and assistance. Both are also aware of their mutual ability to embarrass each other, and this realization strengthens the bond between them. The prosecutor and judge additionally have the common objective to see justice is administered fairly, speedily and efficiently. In practical terms, the means cooperation over a broad range of matters, from authorizing search, arrest, eavesdropping, and other investigative warrants, impaneling and supervising grand jury proceedings,; signing orders to extradite defendant or commit to custody material witnesses; issuing subpoenas for witnesses and documents; and relieving the caseload through that vitally important joint undertaking, the guilty plea. It may not be unusual, therefore, to find prosecutors and judges engaged in private communications on a variety of issues, including the merits of particular cases. Indeed, some prosecutors believe that ex parte contacts between prosecutors and judges are an “accepted practice.” Bennett Gershman, (Treatise, 560)61 The judge favors his old law firm or the state agency he used to head, or the lawyer he went to law school with. Maybe he enjoys relaxing and belonging to a country club with 599 other white men, no women, no black, no minorities.62

CHAPTER

The judge is a deviant and has a criminal penchant for sex with certain defendants. Your client may meet the judge’s predator profile. The list is endless. But each secret reason stands for an inner agenda. An undisclosed influence, not apparent on the surface. Court is supposed to be the go-to place in America about applying and ‘interpreting’ statutes, rules, law, and cases. For getting protection and asserting claims. But not for making new law. Certainly not making new law based on a judge’s personal inner agenda. The distraction from mission — the raison d’etre for Court being — has gotten lost in these troubled cases that consume so many financial and social resources unnecessarily — for everyone. For the judges, struggling to hold the fort on their elitism and special privilege. For parties, who like Diogenes, seek truth and justice. And for society, who would like to trust and believe in the court process. Without definitively dealing with this corrupted area in self-regulation, how can citizens know whether or not their judge is reliable and forthright? Hence, arises a citizen need to investigate each judge’s background, and to ask one question on the record at the beginning of each case: Your Honor, are you aware of any circumstance with anyone involved in this case that might give rise to any appearance of a conflict of interest?

5

Why don’t Judges just make a rule and apply it in every case? The Court’s failures to clean up this smelly area of conflict of interest and the mandatory duty to disclose (external influences that might affect case handling) is both simple and crude. They don’t feel they have to. It’s an outgrowth of the arrogance of self-regulation without oversight. Generally if a breech of this duty blows up publicly, judges just hold the fort, even when Insider Judges behaved unethically by withholding information they knew, (and others in the case knew) but the defendant did not. Over and again we will see this. The examples I cite get more blatant by the end of the book. One never knows when a need might arise — to use this feeble, flawed ‘court practice’ to preside over a case involving someone from within one’s own circle. A donor perhaps. Or some other politically expedient reason.

REASONS FOR BIAS ARE AS DIVERSE AS HUMAN NATURE Robert Fuller has written an extraordinary insightful book about what he calls “rankism” and I believe this is epidemic in the judge/bar system. Rankism is epitomized by an elite attitude that judges (and some lawyers) are a class of people who are above the law because they administer it. The oversight is an inherent flaw in an insider ethics system fashioned to make loopholes judges can exploit. This book calls it country club mentality and exposes and explores the entitlement attitude, (a) where it comes from in history, (b) why the institution falsely reinforces it, (c) how judge practices promote elite-rank-attitudes among members (d) why the judicial ethics system is a flawed and unreliable model for judge discipline. 60

See Illinois v. Somerville, 401 U.S. 458, (1973), J. Marshall dissenting.

61

U.S. v. Huff, 512 F.2d 66 (5th Cir. 1975).

62

Belle Meade Country Club in Nashville. See Adam Liptak, Weighing the Place of a Judge in a Club of 600 White Men, New York Times, May 16, 2011.

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§56 Judicial Patronage, Part II

Fuller’s book Somebodies and Nobodies, Overcoming the Abuse of Rank63 addresses head-on the illegitimate applications of so-called rank; its authority and abuses in western society — in an optimistic enlightening way. His belief that democracy is recognized worldwide as a strong, fundamental desirable system of governing is consistent with my premise, that exposure and anecdotal information suggest Rankism created tyranny in judges. This tyranny threatens our democracy at its core. And by working externally to eliminate it, citizens may not only strengthen the democratic process, but save it from erosion from within. When you put it like that, it is a citizen duty to expose and correct judicial abuse. A continuation of the ongoing struggle for human dignity. “The rule of law is nothing if it does not apply equally to all.”64

This book was in its final stages of editing when I found Fuller, who also described challenges to confronting rankism as both difficult and dangerous. For example, the most blatant national rankism was racism (slavery and skin color), followed closely by gender discrimination. Each were challenged in the civil rights and feminist movements. Judicial tyranny is another area, more difficult I suspect because it is hidden within the legal system, and has altered the balance of our justice system from inside. But it is not invincible. Judicial abuse is unfettered rankism affecting daily court practices. So my goal is to refocus on equal justice to all Americans, one case at a time if necessary, while stimulating a more universal systematic approach to equal justice in court for everyone.

Could the key to eliminating judicial abuse be as simple as changing public awareness? Judges have made a zone of privacy around themselves and their internal self-dealings. Just as cell phone videos and instant camera-messaging have helped stem a culture of police brutality in some communities, so publicly spotlighting judge bad behaviors might help motivate judges and legislators to address the rampant rankism that created a court system permeated with insider corruption. And draw focus to the institutional inability of judges to effectively address and discipline other judges, when the public reports.

EXAMPLE ONE: THE PROBATE COURT GUARDIAN SYSTEM65 “The system for safeguarding the financial affairs of incapacitated people is riddled with problems that have drained the estate of the vulnerable and enriched politically connected lawyers and others, according to a report released by the NY State Chief Judge, Judith S. Kaye.”66 Handling estate cases are a plumb assignment in every state, because the are highly lucrative; there is little risk in the routine work; there is generally no questioning the bill; and attorneys often run up padded bills and excessive fees without any oversight. The lawyers get hand-picked by judges to represent estates of people who died without a will, or are senile or incapable of handing their own affairs, and minors. Client assets get plundered by lawyer billing and costs and even asset transfers to lawyer players.67 Even bankruptcy trustees collude with estate lawyers — or receivers (all judge appointments) to blatantly divvy up client assets — personal and corporate, and acquire them for themselves. Like plucking plums off a tree. Sometimes, everyone

63

New Society Publishers, 2003. See page 23 “Is Pulling Rank Human Nature?”

64

Id.

65

This type of case involves incapacitated people, minors, people who die without wills, businesses in receivership. In other words, the sick, weak, hurt and vulnerable in our society. There are parallels also to the mortgage-lending scams that still plague our nation. Those players include the bank, federal lending programs, court receivers, trustees, and assorted attorneys and judges. See an online u-tube documentary by Athena Roe, at HARJustice.

66

Jane Fritsch, Guardianship Abuses Noted, Including a $1,275 Ice Cream, NYTimes, December 4, 2001

67

Attorney Coffey claimed his client wanted to gift him with her oceanfront home but his client didn’t remember that.

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appointed gets engorged. Even the most prestigious law firms understand these cases are financially stabile and represent reliable lifeblood income to the firm. They not only bring in good steady monthly income to pay overhead, but often can be manipulated to produce extensive windfall-profit on top of the ordinary daily case maintenance costs. Probate and estate assignments can be easy pickins’, bringing in as much as the largest client of other, less dependable kinds of cases. The reason looting probate court cases is prevalent is because (1) it is highly lucrative, and (2) the appointment process of judges turns the appointees into stakeholders in the scam (3) the scam works below any accountability radar. No one will whistle blow on the judge, nor will the judge report the scamming of the appointments he made. There is no statutory outside accountability or external audit, except in extremely rare situations where someone outside the case blows the fraud whistle and the media hears and makes a protest/story with a short shelf life. And probate court operates as it did before. Nothing changes. It appears that modest, thrifty, trusting elderly people are routinely fleeced of lifesavings and assets by attorneys, and the judges who rubberstamp bills and costs. The judges don’t audit or respond to complaints. Often, client assets are wiped out without even a preliminary court case — such as The Chapman Sisters — a pair of charming elderly recluses in Coos County New Hampshire; or Attorney John Coffey’s Alzheimer patient, who lost her Hampton Beach home for a $20,000 estate planning bill. The fiduciary accounting and ethics cases came later, after the funds were gone. One lawyer took his assistant to visit the client at her nursing home, and brought flowers and cake for the client’s birthday. He charged her estate $850 for that visit, and $1,275 for another visit where they took the client for a walk. Other lawyers who “provided free legal or professional services for the judge” routinely received “lucrative appointments” from the same judges.

CHAPTER

A team made up of a guardian-lawyer and the client’s home-health-aide charged a client $470,000 in the short time the client was incapacitated. He was not expected to recover, but when he did, the client, a professor, found he could not get the pair fired. They paid themselves $160,000 before the professor hired outside counsel. The judge eventually removed them, but just re-appointed the guardian into yet another guardian case.68 Broken Trust is an investigative reporter series in Florida that zeros in on the activities, fees, and some shocking stories about probate court appointments. Judge-connections-gone-bad. Some feature Guardian Elizabeth “Betsy” Savatt, wife of embattled Judge Martin Collin. The married pair have lots of bad press about legal bullying strategies, extortion and judicial retaliation threats. Some include (1) taking fees from incompetent fiduciaries (not court approved), (2) attempting to loot external assets outside the estate, and (3) trying to force a ward to drain a retirement account for about ¼ of its value to pay legal fees, (4) refusing to step down unless payment demands and other extorted terms were agreed in advance. Two wards were able to get rid of this guardian only after their family/caretakers paid and agreed not to sue the lawyers.69 Savatt, a former tennis pro, has racked up numerous complaints from former wards and their families who wanted her removed — initially for nastiness and bullying people adjudicated incompetent. When asked to resign, Savatt held some wards hostage for payment of her fees, plus payment of the other attorneys involved, plus adhesion contracts not to sue. A variety of allegations include double-billing, unnecessary litigation, extreme acrimony, threats of hostage-taking (to make wards inaccessible) and multiple taking-ward-assets-without-judge-approval. Savatt’s answer for those who disagreed with her handling implied an improper law-threat for those who cross her, “My husband is a judge. You don’t know who I am. I can get away with anything I want in court.”70 I can’t tell if the judge is involved by protecting his wife’s honor, or has a separate pattern of his own, however his putative infant grandchild and her mother are also caught in the pair’s scorched earth litigation style.71

5

68

Id.

69

John Pacenti, Series Staff Writer, Guardianships A Broken Trust, Palm Beach Guardian, May 23, 2016, onlinewww.mypalmbeachpost.com/ guardianships-colin-savitt/

70

http://www.mypalmbeachpost.com/news/news/judges-wife-facing-more-complaints-about-guardians/nrQ4K/

71

See http://palmbeachhealthbeat.blog.palmbeachpost.com/2016/05/27/judge-colins-attorney-calls-palm-beach-post-reporter-to-testify-in-hearing/

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§56 Judicial Patronage, Part II

INTERPRETING DOUBLE-SPEAK — THE NEW YORK STATE COURT RECEIVES ‘DISTURBING’ NEWS OF CORRUPTION A New York Court Study found “about a dozen lawyers out of 1,000 lawyers routinely “benefited” from their fiduciary appointments. Really? One out of hundred — and this kind of insider self-dealing is euphemistically called benefited. In Wall Street, it is called Insider Trading. The billion-dollar Enron insider-manipulation was the business scandal of the decade.72 Here, a similar insider scheme that fleeces more money from more people, year after year, is classed down as a crime of “benefit.” The language alone supports that reporting court fraud is an institutional problem. No attorneys or judges were named in the report or punished. Offenders just moved on to new cases, to become repeat offenders. Judge Kaye under-spoke about the “problems that exist in a state court system for safeguarding the financial affairs of incapacitated people.” Is it mis-speak to minimize a problem created by the lack of judicial oversight (or as she calls it, the lack of ‘a system’) for patrolling this area of embezzlement by attorneys appointed and supervised by judges? The chieftess says there is no system, but in fact, that is the system. While it is admirable the Court did the study and learned about the existence of prevalent and widespread problems in guardianship fraud, what followed next?

v

Version 1: N.Y. Chieftess under-speak “Court officials said they hoped the report would be a deterrent to lawyers and judges who work in an obscure and little monitored area of the law.”73 And this one: “Chief Administrative Judge Jonathan Lippman called the problems disturbing, and said they were widespread throughout the state.”

v

Version 2, paraphrase The judges were a little obtuse when announcing a state-wide court problem. A paraphrase of the official answer about the official court report/investigation follows: A deterrent effect will take care of the widespread and disturbing past and future harm caused by lawyer abuses and embezzlement from their incapacitated clients, that happens under the oversight of judges, because these are just problems that happen from working unsupervised in the dark unseen recesses of law.

56

Still too much doublespeak? How about this one: v

§

Version 3, plain English: Hey! Listen up. You work in a bat-cave, you expect batshit. That’s just the way it works. Shit happens.

Good to know. So, if court and judge studies74 don’t work on correcting internal fraud and attorney embezzlement, what about trying an appeal? Or another study? Or maybe a new novel tort theory? Appeal is an impractical avenue to correct this kind of abuse, because appellate courts are reluctant to second-guess a judge’s discretionary authority and refuse to examine a judge’s private motives — for example for rubberstamping trustee acts. Plus appeals cost money. Even when the Court, as in this study, looks under the rock — all it offers is hope of a deterrent? It suggests either the court leaders believe in miracles, or they are actively involved in avoiding recognition of the nature of the system and the built-in financial incentives to cheat and embezzle from incompetent, elderly clients. This appears typical of internal ‘oversight systems’ over judge

72

Documentary, Enron, The Smartest Guys in the Room, Director Alex Gibney, Fortune Investigative Reporter/Writers Bethany McLean and Peter Elkin (2007).

73

Id.

74

Florida’s Chief Judge Jeffrey Colbath vowed to form a committee of other judges to look at “stakeholder issues” in probate court fleecing of clients, to strive for a higher ‘best practices standards.’ Swell, another study striving. See fn. 53 and 54.

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special appointments in other states, including of course New Hampshire. Here’s a look at Roswell, New Mexico, home of alien landings and Area 52:

EXAMPLE TWO: COURT PATRONAGE FOR THE LOCAL CORN GENTRY As I watched, a Roswell District court case involving the sale of a cemetery in bankruptcy, I was alerted by Judge Currier’s groveling demeanor toward the trustee in the case — while being quite stern toward the other parties. The judge initiated the question of trustee fees. The trustee had not asked for fees, nor submitted a bill, and he confessed in court he had not yet decided his hourly billing rate. As the hearing progressed an hour or more, the judge insisted on approving the trustee’s bill, even though it did not exist, no rate was known, no hours tabulated. The judge was adamant he wanted the trustee to work up a bill and get paid whatever the trustee decided to charge — before the next hearing. So strange, because the Trustee did not appear to care about getting paid — but the judge was making a specific point, and an unusual ‘courtesy.’ I caught up to the trustee in the parking lot and asked him why the district judge was so helpful to him.75 The trustee said he was formerly was a magistrate judge. Now he was just a wealthy rancher who sat on a local governing board.76 I hung out a couple more hours studying Judge Currier, but did not observe anything like this kind of excessive judicial courtesy in any other case dealing — in fact, overall found the judge to be bullying and intimidating in his case handling. A real home-court atmosphere.

CHAPTER

EXAMPLE THREE: ENTERPRISE CORRUPTION THEORY

5

New York, a state where court studies have proven otherwise ineffective to stop probate court trustee abuse, passed several state penal laws.77 Sort-of a state version of the federal Racketeering Influences and Corrupt Organizations Act (R.I.C.O.) that might apply in probate/guardianship taking cases, or mortgage fraud lender cases. The kind of court-aided systematic exploitation of citizens (legalized stealing in a court arena, under the guise of judicial oversight.) Attorney Scott Stafne, a second generation personal injury lawyer, calls it ”foreclosure fraud and court abuse power” where courts cooperate when banks and lenders repossess borrower homes, using less than legal methods and intimidation. Generally it involves a double payment scheme — where federal government insurance payouts to lenders make it doubly profitable for banks to force homeowners out of their homes, with a second profit from the resale.78 Some states enacted laws specifically preventing this kind of ‘enforcement’ by lenders and banks as a predatory act. Yet state protection laws get circumvented by lenders who go to federal court instead. Similar schemes happen with bankruptcy trustees, probate court trustees, and compliant judicial cooperation. The idea of using a racketeering act/concept (perhaps in conjunction with obstruction of justice for the court-compliant aspects) in these mastermind court fraud cases is a relatively new idea. The elements of enterprise corruption laws are (a) knowledge of the criminal enterprise, (b) participation or an interest or ownership in the enterprise, and (c) guilty of at least two other felonies (conspiracy is almost always a part of the enterprise element.) 79 The interesting thing about this genre of case, it not only involves severe fines (multipliers of gross value), but also asset forfeiture, and mandatory minimum term of incarceration. It is an interesting tool that goes beyond the traditional charging of conspiracy for securities, bank, and wire fraud found normally in these cases.80

75

Former Judge Robert B. Corn

76

Roswell NM District Court

77

New York Penal law 460.20 makes Enterprise Corruption a Class B felony. Aggravated Enterprise Corruption (460.222) is a Class A felony.

78

See http://www.occupy.com/article/people-lawyer-fighting-against-foreclosure-fraud-and-courts-abuse-power by Attorney Scott Stafne of Washington state, for a discussion of the federal court take-over of states rights/jurisdiction in the area of foreclosures by banks and lenders.

79

One criminal defense firm specializes and writes online about Enterprise Corruption defense. See BlanchLawFirm.

80

See example U.S. v. Farkas, U.S. District Court, Eastern District VA, Criminal No. 1:10-CR-200.

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§56 Judicial Patronage, Part II

GENERATING FEES FOR FAVORED ATTORNEYS HAS BECOME THE CURRENCY OF JUDGING Other judicial techniques that add extra revenue to law office coffers include loose to non-existent review of attorney charges: Appointing extra lawyers, experts to beef up the billing Permitting lawyer-staff payments for research that unrealistically drags out case research to inflate billing and costs Permitting excessive hourly rates, including billing for nominal acts, secretarial services and overhead Inflated bills and unnecessary work, rubber stamped by the judge Unsupervised, questionable, and outright-ly fraudulent billing Approving bills with either cursory or no review or audit Make no mistake — all kinds of attorney appointment/fees are a significant unregulated industry, which routinely is operated to deplete savings and assets of incapacitated people — who cannot avoid or even get rid of the scam of court-appointed experts.81 In any other forum, this insider appointment system would be called an insider scheme, and a crime.

NEPOTISM IN JUDICIAL APPOINTMENTS A different form of insider favoritism, nepotism, costs nothing and is free, and best of all — nepotism provides a level of loyalty and secrecy that only comes from family protection and influence. Paternalistic grooming of a child to wear a second-generation mantle of justice may begin with a light stint in a major state office. Look for a second-generation child significantly different from other hires. A progression by nepotism may start with the Office of the Attorney General, and/or be followed by a stint in the Governor’s Office as Governor’s Counsel, or maybe special counsel to state Supreme Court judges. Something status’d as a symbol of family favor and entitlement, but all promotions and titles bestowed early and by connection, not merit. These professional training experiences are often superficial — similar to an internship — and may need to be rounded out with in-kind campaign trading to the governor’s race by campaign or legal services donations.

EXAMPLE ONE: FEDERAL LAW PROHIBITS CONSANGUINITY OF A FEDERAL BENCH Notwithstanding, no one bothered to enforce the law when two brothers sat on the 8th Circuit Court of Appeals. Richard Sheppard Arnold and Morris Sheppard Arnold respectively were appointed by Presidents Carter and GHW Bush. Lawyer complaints were made to Congressman Howard Berman on the House Judiciary Committee about them, but in typical fashion Berman was involved in redistricting and his own conflict-of-interest nepotism issue and got his brother, Michael to the commission that draws the district boundary line.

EXAMPLE TWO: THE FATHER-SON OVERCHARGING DUO OF STEPHEN AND ADAM MOSER OF NASSAU COUNTY Family Court in Mineola, New York is famous for overcharging and misreporting attorney fees, even before the son became a Nassau County District Court judge. One client, a woman in divorce, quietly tape-recorded, then transcribed and submitted the transcribed tape to court to prove the son-father team had agreed to cap her attorney fees, but then misrepresented to the court she was not paying her bill. The bill went away, but Father later moved the court to award him advance fees of $10,000 as a law guardian, where he upped his hourly rate $50/ hour after he was approved. By that time, Dad said he was charging $250/hour and wanted be paid in advance and before the end of trial. Their billing antics in overcharging divorce clients have been followed at Family Coalition 81

See also later sections on the retired-judge corporate and class-action arbitration scams. Big buck fees, retainers, and luxury cruise perks for arbitrating class-action settlements for big corporate cases in California.

311

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CHAPTER FIVE — TRICKS BEFORE TRIAL

meetings, along with the names of crony judges who approve them.82 Although Stephen Mosher asked the client why she would do ‘that’ [tape record him] when it could get him disbarred — “but of course, nothing happened to either Stephen or the new Judge Adam Moser.” This is why you tape record everything. Maybe the I-Phone 6s are helpful after all.

IT IS THE FAVOR OF HIRING SOMEONE’S RELATIVE One edge in obtaining a judicial appointment over a field of thousands of practicing attorneys with extensive seniority, legal experience, reputation, scholarship, and known integrity for fairness and compassion in the community is having a father who is a chief justice, a spouse who is an influential Senator, or assigning 85 cases to your best-friend who hosted your wedding reception.83 “USDA Judge Samuel Kent was finally sentenced to 33 months in prison… In 2001, there was grumbling about favoritism in Kent’s case on Galveston Island. The Southern District removed 85 cases from the court docket. The attorney on all 85 was Richard Melancon, Kent’s close friend and the host of the reception at the judge’s wedding. The judicial system looked into it and moved the cases. The judges in charge told the public the reason was a heavy caseload.

CHAPTER

Later, Cathy McBroom, Kent’s former case manager, complained the judge had tried to assault her in his chambers in Galveston’s federal court. The Judicial Council of the 5th Circuit Court looked into the matter. The judges in charge removed Kent from the bench for four months — with pay. The judges did not tell the public about sexual harassment or sexual assault. The order reprimanding Kent said: “Based on the special investigatory committee report, the council reprimands Judge Kent for the conduct that the report describes.” The report itself was secret.”84

THE NEW NEPOTISM: FORMER LAW PARTNERS ARE BETTER THAN POLITICIANS

5

Let’s face it — there just aren’t enough sibling lawyers. So what better brother is there to trust with your back than a former law partner? You built careers together — why not share the glory now that one of you has made it to the rank of judge? Whether from the U.S. Attorney General’s office or a law firm, the highest number of judicial assignments goes to members of the judge’s old law firm.85 The blue-ribbon two-year long investigation into New York’s patronage system86 found that despite years of political party loyalty, even political insiders were shut out of lucrative appointments.

EXAMPLE THREE: TWO ATTORNEY/MEMBERS “OF THE BROOKLYN DEMOCRAT PARTY MACHINE …wrote letters … complaining they were being shut out of plum legal work on a receivership by Manhattan Attorney Ravi Batra, despite their years of loyalty to the county party. … Instead Batra gave the legal work to lawyers in his own firm.” 87 This law office seems to be fertile ground for the type of bending, bonding and connections that appreciate, inherently, the latent responsibilities that accompany a judicial appointment. What occurs less obviously is the appointment of former law partners and law associates? The most obvious was the appointment by Governor Steve Merrill of his super-best-friend forever, John Broderick — a man with no lower court 82

Monica Getz founded the National Coalition for Family Justice, which holds monthly meetings attended by clients, attorneys, judges and concerned legal professionals about dealing with abuses in New York family courts.

83

This issue of guests at a wedding seems to be on the judges mind. It is revisited in later chapters.

84

Attorney Gary Zerman, part of a comment on the Breyer Report on Judicial Accountability, May 19, 2009; Zena Crenshaw, internet radio program “Change of Venue”. http://www.blogtalkradio.com/Change_of_Venue/2009/05/Special-Anniversary-Show

85

Mike Gill Senior swears this is the New Hampshire pattern of judicial appointments. www.stateofcorruption.org

86

Chief Judge Judith Kaye initiated the study after a series by the New York Post focused on a state-wide pattern of patronage between judges and the Democrat party.

87

Murray Weiss and Maggie Haberman, State Report to Slam Judges over Patronage, New York Post, November 30, 2001.

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§56 Judicial Patronage, Part II

judge experience appointed despite lack of temper-ment to the highest state court based purely on affection and brotherhood.

JUDGE APPOINTMENTS IN GENERAL The failure of the court system to use random methods of appointments to positions which generate business income to members of the legal club is indicative of the premium on judicial appointments as patronage to friends, relatives, and supporters. Outsiders, critics and dissidents need not bother to apply.

EXAMPLE FOUR: $250,000 IN 10 GUARDIAN CASES “One lawyer received $250,000 from 10 cases he had been assigned by a single justice. The lawyer lacked the proper qualifications for those cases and had twice declared bankruptcy. The lawyer regularly worked for the judge without charge and was appointed a special master in unrelated cases.” 88 Others received lucrative appointments from judges after they provided free legal or professional services.” (Called quid pro quo.)

EXAMPLE FIVE: JUDGE FAIRBANKS INVESTIGATION: $2 MILLION IN TRUSTEE FEES In the New Hampshire investigation of Judge Fairbanks — the deceased judge accused of bilking clients, relatives, and others of $10 to $13 million in assets — one tiny but well-placed law office was awarded fees of over $2 million dollars, generated it was claimed, by 18 hours of legal research per day, 7 days a week for over a year. The lawyer’s daughter further contributed to the research, he asserted. His firm was rewarded with this lucrative and unmonitored assignment, while the bilked creditor-victims received next to nothing. A two-year investigation of court fiduciaries uncovered disturbing and widespread problems of connections between certain prominent firms (appointed to lucrative assignments over the most vulnerable members of society) — and the looting of the client assets. A system that fails to appoint people on a requested or random basis, and allows a judge to steer appointments to a particular law firm or group, is capable of improper influence and pandering.

FAVOR POSITIONS FOR SPECIAL APPOINTMENTS ARE ENDLESS Not only do these honey-spots allow naming the usual list of judge-helpers (receiver, estate administrator, court expert, psychologist, psychiatrist, guardian, surveyor, appraiser, child attorney, defense attorney), but these appointments will be passed to people who appreciate the judge’s largess. Sometimes the position openings are statutory — meaning the legislature approved a general judge-power to appoint. Others times, they are imaginary — that ‘guardian ad litem’ over my liquidated law business, for example.

EXAMPLE SIX: AND THE WINNER IS — SALE OF STOLEN PROPERTY One of the most lucrative-sounding court appointments I came across was a police stolen-property sale. An attorney I knew socially asked advice because I had a client who needed to sell jewelry and I had devised a formal system for getting the jewelry appraised by a reliable assessor, having the client review and approve the written values and prices, and checking again with the client before each sale. Often divorce clients don’t have liquid assets, but they have valuable tangible assets (usually overvalued in their minds), so I had to be scrupulous with the valuation and sales — (I thank God again because of what happened later, after the client became embroiled with Chuck in our divorce, as well as her own. Chuck was determined to take this client’s fees , and when that didn’t work, he contacted my client directly. Eventually, his debacle turned into two PCC cases - including charges against me related to alleged ‘theft of jewelry.’)

88

Murray Weiss and Maggie Haberman, The Report New York Attorney General Investigation on Probate Court, N.Y. Post.com, November 30, 2001.

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So I went with the lady lawyer to the bank vault where we viewed many safety-deposit boxes of jewelry, gold and coins. She had a judicial appointment to sell the stolen property recovered by law enforcement and not otherwise claimed. (It was an court appointment she confessed she worked hard to get — but was evasive about how it actually came about.) There were no orders, instructions, or limitations. She was to use her discretion. I was astonished at the thousands of valuable items, diamonds, gorgeous jewelry of all kinds, plus gold and coins. ‘We’ talked about the need to inventory and divide the goods the lots, and various ways of conducting a sale. She knew I used several appraisers for my client’s jewelry (as collateral or sale) and I gave her names of those appraisers I trusted and those I did not. I asked her to tell me when she held her auction or sale — as there were large stones and watches and jewels I would have liked to have a chance to bid on. I ran into her a half year later, and asked how the inventory was going? She replied she sold everything at a private auction, right after we met at the bank, and she just forgot to let me know. There was no publication, no announcement, no list of items or buyers. Just liquidated stolen goods under that vague and unspecified order of the judge.

57 REFUSAL TO RECUSE

§

89

Once they get on, they don’t want to leave.

CHAPTER

Judges are disqualified from sitting on a case where there is conflict due to interest or prejudice. The standard is high — even the appearance without proof of conflict, requires disqualification. Under the ethics canons, judges have a duty to disclose circumstances where there might be an appearance of conflict. It is called judicial disability. Judicial disability also refers to violations of the cannons of ethics. Sounds like a broken leg, but it refers to a broken ethics duty.

JUDGES JUDGE THEIR OWN NEUTRALITY AND FITNESS

5

How ironic that judges are supposed to judge themselves as to whether they are biased or neutral. As far as I could see when married to one, there was no special equipment over other mere mortal men — but the joke of judging yourself is delivered with a straight judicial face. It’s a game of pretend. So judges pretend to step outside themselves and look back and judge whether they are biased. Like asking Archie Bunker if he’s biased. No way, he would say, while being the American caricature of white male bias against everything in the 1960s era of enforcement of civil rights.

THE SO-CALLED DUTY TO SIT MIS-ARGUMENT Once a judge takes a stand not to step down, (he has judged himself and found he is just hunky dory) he gets vested in upholding his own authority and may struggle to invent some reason to stay on the case. The judge is in a state of denial — and fear — that the challenge to his authority is personal. It’s not — even if it is a personal trait that makes the judge disqualified. It’s very inefficient and wasteful to run a courtroom with bias — attorneys have to over-prepare on zillions of little points that have nothing to do with the merits of the case. The other irritating wasteful aspect is all the drama that comes when someone with authority is cheating. They get so absorbed in protecting their image and turf — in being the big Kahuna in the Courtroom. I want to ask if we just can’t get on to the merits and elements of the case — instead of all the game playing and posturing that accompanies preferential treatment by judges. They seem to have this big addiction to drama and being a personality presence in the case. The judges actually become a presence bigger than the dispute in these cases. Simply put — the case is all about them.

89

“Recuse” may be the most abused trick in existence. It means for a judge to remove himself from hearing a case when there is any appearance of conflict, as seen by a disinterested reasonable person.

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§57 Refusal to Recuse

I want my judges to be very efficient, kindly smart wallpaper — the procedural force that gets resolution for people with differences and problems both efficiently and fairly. Follow the elements and look at the evidence. Apply the rules fairly. Balance the bullies. Listen to witnesses. But in the background, not the show. Who really wants to be in court? Who really wants to pay for court? Little bitty cases that should be decided in one hearing can be made to stretch out years because of the judge’s ego and the elevated theatrics and insider-that drag cases out years. While defendants wait for justice. It becomes a war of attrition. If judges would use their authority to discourage that patronage nonsense, and treat everyone with equal respect, cases would be long enough, without adding extra judicial drama to the process.

One of the reasons judges fabricated not to recuse prior to 197490 (now discredited) was that a judge had a duty to take every case assigned to him and could not pick and choose. The excuse was abused, and logic follows the idea that if a judge has no stake in the case, who cares what judge is assigned next? Step aside and let someone else be appointed. But the reality is, cases get assigned to specific judges to get specific outcomes, so a judge who allows himself to be taken off the case, appears disloyal to those who appointed him. The next judge might not understand the desired outcome, or the need to punish, or the favor owed to the prosecutor. To keep control, judges routinely balk at recusing from what they consider a personal affront to their turf.

THE FEDERAL STANDARD FOR RECUSAL By statute, federal judges may not hear cases in which they have either personal knowledge of the disputed facts, a personal bias concerning a party to the case, any earlier involvement in the case as a lawyer, or a financial interest in any party or subject matter of the case. Federal judges also are subject to the Code of Conduct for United States Judges, a set of ethical principles and guidelines adopted by the Judicial Conference of the United States. The Code of Conduct—and the opinions interpreting it— provide “guidance” for judges on issues of judicial integrity and independence, judicial diligence and impartiality, permissible extra-judicial activities, and the avoidance of impropriety or even its appearance.

WAFFLE TRICKS However, the federal standard has a waffle provision: the appeal court routinely finds it to be harmless error if a judge ‘forgets’ to disclose his relationships that required recusal.

EXAMPLE ONE: MASSEY COAL IN WEST VIRGINIA The U.S. Supreme Court has struggled to fashion a recusal rule for elected judges who preside over big-donors to their election campaigns. The President of Massey Coal Company lost a $50 million dollar verdict for fraud when his coal conglomerate put the small defendant coal company out of business. He decided to appeal, but first contributed $3 million dollars to remove one state Supreme Court judge and elect another. Judge Brent Benjamin took office after winning the election, and he then sat on the appeal, overturning the $50 million verdict. Judge Benjamin claimed he was not biased by $3 million campaign contribution, and refused to recuse, and the matter went to the U.S. Supreme court. More than that, both Company President Don Blankenship and Judge Spike Maynard (another judge in the 3-2 decision to overturn) were photographed dining together on the French Riveria, where they just happened to be vacationing at the same place, same time. U.S. Supreme Court Justices Kennedy, Souter and O’Connor all acknowledged the financial arms race for State Supreme Court and discussed the gratitude curve of receiving favors, campaign money, presidential appointments, and even attending each other’s weddings.91 The Supreme Court wrestled but did not decide a constitutional due process right to recusal. 90

“Duty to Sit” was in the judicial recusal statute prior to 1974 and in some case law, now discredited because it “tilted against recusal … Since 1974, Congress amended §455 to reflect the Constitutional concern that judges not only must be unbiased but also must avoid even the appearance of bias….by replacing it with an objective standard, eliminated the notion of a duty to sit, and broadened substantially the range of cases in which federal judges are required to disqualify themselves.” From Monroe Freedman, Thomas Ethics and the Court Nominee “Unfit to Sit” For Failing to Recuse in Ralston Purina Case,” Cases and Controversies, Legal Times, Week of August 26, 1991.

91

Tony Mauro, Justices Appear Ready to Set Recusal Rules, Legal Times, March 3, 2009.

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THE STATE STANDARD FOR RECUSAL In New Hampshire, a higher standard got established after George Blaisdell92 tried to recuse JNad from his cases repeatedly over ten years. (A lot of us grabbed by the strong-arm of ‘Chief 1’ felt the same way.93) None were ever allowed to testify, except at the Executive Council hearing on Chief 1’s nomination to the highest court. That hearing stretched two days because so many people showed up to complain, who had appeared in his court. Anyway, George Blaisdell ended up with three trials (two do-overs) because the nominee failed to make conflict-disclosures. Many New Hampshire judges caught this ego-fever and got tricky about not recusing — and although some eventually recused themselves, most refused unless they forced to by the top court. My ex used to say if you want to recuse a judge, use an elephant gun and don’t miss. So judges who were removed involuntarily pretended with semantic word-games that they were not really disqualified. They developed an evasive vocabulary — writing evasive and deceptive words — and like the act of transferring Catholic pedophile priests, the problem just wasn’t acknowledged publicly. A victim’s requests for rehearing de novo always got denied, and the bad, biased rulings and findings were allowed to stand uncorrected. “Since Master Fishman was not disqualified or recused from hearing this case, the holding of Blaisdell is not applicable,” wrote replacement Master Pamela Kelly, in her denial to a rehearing based on an allotment of only 22 minute for the defendant to present his case at trial.

CHAPTER

One way or another, the women in the Kingdom of Rockingham felt a strong loyalty to each other and that Mike deserved to wind up as toast, even if they had to cheat to make that happen. Even if somehow, against all odds, this pro se defendant managed to win, he was going to lose. The semantics language of removing a judge is an example of legal hypocrisy — pretending removal of a biased judge was by ‘transfer’ and therefore not the same category of removal as ‘disqualified’ or ‘recused.’ I expect each woman had either strong rationalizations to justify what they were doing (for and with each other) and that they didn’t spend a lot of time thinking about whether or not this was morally okay. Or else the three legally licensed professionals, each with a separate ethics duty, each pushed the moral aspect for their collusion into a dark recess and refused to examine it. Under the current operating system, no one asks or insures any moral examination of acts, (which are purely discretionary).

5

RULE CHANGES In 2002, after the public ruckus of the New Hampshire impeachment trials and the appointment of JNad to the highest court, the state court passed a pilot rule that parties could challenge the appointment of a judge to a case once as a matter of right. This is called a pre-emptory challenge, and 12 states have some form of right to remove a judge. In six states, judges hear and determine their own bias. My brother Greg once researched all 50 states, and he found 50 different written variations, plus individual judges wiggle through avoiding their own recusal with intellectual dishonesty and slight-ofhand semantics. As a whole, judges become very territorial and hate to step aside to let someone else judge a case. If there is no personal interest, who cares? Step aside and let it be assigned by rotation or draw — or any neutral process. Few studies have been conducted but they indicate judges largely have difficulty in objectively assessing their own bias. And the standard is low. Duh. Litigants who ask for recusal should expect retaliation. Some of this is the institution’s high intolerance for autonomy of any litigant. There is no allowance for legal dissent. It is assumed that any challenge to a judge is anarchy. The culture requires strict obedience to judges. They are paranoid about perceived criticism, which is seen as a need to show high authority and teach them a lesson, lest criticism take root and pop up elsewhere.

92

Blaisdell v. City of Rochester, 135 N.H. 589 (1992) was the last of George’s three cases.

93

“Chief 1” was the vanity license plate on JNad’s Rolls Royce.

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§57 Refusal to Recuse

INDIVIDUAL ACTS OF CONSCIENCE If a judge is biased, fails to make mandatory conflict disclosures, or is helping someone win a case — there is no effective remedy. No sanction. No downside. Judges and lawyers have a good thing going. They are making money, holding power, and crushing people for sport and retaliation. Their authority is from their system, not from a Constitutional mandate or a higher moral authority. What kind of personality is drawn to this kind of highly authoritative, rigidly structured work? One that demands obedience and rewards group loyalty? One that has no room for individual conscience? It is an environment where individuals count little, if at all. Under vague bar and licensing rules (that I learned the hard way), there is no room left in the institution for individual acts of conscience.94 It has become a matter of a dominant ethos that allows criticism only within highly controlled limits permitted by judges. Prevailing standards of ethics can be only what those in authority say it will be. And the abusive consequences of all these authoritative practices — the harm resulting to individuals — never registers in the dominant system. It might arise in the context of a perceived need for additional security and staffing. Demands by judges for a greater funding from the annual budget bill to the legislature. Protect me, judges cry — from the angry people I screwed over in court. Give us funding for more judges because there are too many cases on appeal. We need more judges, and more courthouses. I am personally not sympathetic to Third Branch requests for increased public funding.95 My own loss-experience was a life-altering experience caused by judges who didn’t know and didn’t follow the law. For those who underwent similar experiences in criminal courts, my consequence isn’t in the same universe as innocent people who are incarcerated. I struggle to understand from this side of the moat, how those up in the castle of law can intentionally play word games to deny someone the opportunity to have the case re-heard de novo after it is overturned for judicial impropriety? They are cheating because they can. The brute power of the state to uphold bad judging against innocent people is unjustifiable from any moral, ethical, rational, or logical perspective. Modern authority of judges is a system that can do anything it wants to those under its control. Do these masters of the universe just see their denial as an efficiency? Because they know the final outcome is destined be the same as the first trial? Do judges think to themselves — a re-trial is a waste of my valuable time because the end result will be no different? Or is the objective to send the nobodies of the world a message? Don’t mess with judges. You’ll never win against us. We are too powerful. You are too inconsequential.96 If lawyers weren’t regulated by judges, but instead, were licensed by the legislature (same as doctors, estheticians, and Indian chiefs)97 would lawyers stand up and speak out about what is happening? Would they be less afraid if another branch of government regulated their livelihood? Prevarication. This same semantics game shows up in case after case but with different judges. The two marital masters in Rubin’s used the same alternative words for disqualified98 that JNad and Judge Brock used in other cases.

94

This becomes especially important if the institution and its officers and leaders are acting in a manner that is illegitimate. The role of institutional trust in the legal system is covered in the last chapter.

95

See Appendix D, Op Ed, In NH, court reform means developing a court work ethic, Union Leader, May 15, 2000, A9

96

Make no mistake, Mike Rubens has individual courage including in his convictions — more so than the half-dozen Rockingham attorneys who confirmed the P.E.T. relationship between the attorney and judge but were afraid to take a case involving the two friends.

97

I acknowledge that no federal or state governments regulate Indian chiefs. They have sovereignty — except when they do not. Washington State, for example, has a 1953 state law that usurps some (federal) ICWA tribal authority by treating tribes as wards of the state in some child custody and adoption cases, (unless tribes affirmatively jump through some waiver hoops.) It also has adopted higher (tougher) standards of proof and appears to contradict federal law and policy.

98

The word game avoids the words “disqualified” and “recused.” In this game a second judge is supposed to re-hearing all the first judge’s decisions and orders. So judges claim that by saying the first judge was “removed” or “transferred” or “voluntarily replaced” or any combination of words that implied there is a difference — then the defendant is not entitled to a de novo re-hearing. Federal judicial code uses the word “disqualified.” This removed-but-not-disqualified game is ‘sophistry’ and it is dishonest word play.

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In fact, it seemed like almost every judge in the state (that refused to voluntarily remove for conflict of interest) — then the replacement would try to avoid de novo rehearing of all the tainted earlier orders and rulings. The Blaisdell holding required a replacement judge to rehear three cases. George Blaisdell also experienced JNad; he appealed his case three times, and eventually the top court vacated all orders in three separate cases. In the Rubin’s divorce case, the same something was wrong enough to remove the marital master and transfer her to a different county. The semantics of claiming her transfer/removal was not disqualification is prevarication. If it wasn’t, Marital Master Fishman would have been still sitting on the case and traveling back and forth from the seacoast for the Rubin hearings.

CHAPTER

Are the marital masters and judges in collusion when they argue with a special coded language they don’t have to step aside? Are they in denial? In avoidance? They clearly don’t want to vacate the first judge’s rulings, and re-do a case that was tainted from the start. I think they are in fear. At the core of the New Hampshire court system, is the fear that if judges don’t back each other up, if they don’t join in the cover-up, then the whole secret power system will be found out. They use a special vocabulary to distort and manipulate results to avoid the loss of control. Their group actions fear of loss of prestige and peer approval. Fear of loss of control over the obscene amount of unsupervised money changing hands. And fear that the authority of the kingdom will be challenged by nobodies. The fact that the court’s special rules and vocabulary creates unfair harm to the nobodies, doesn’t enter their so-called “rational” equation and special language used to make judicial decisions. This is a system that has removed morality, removed individual determinations of right and wrong, and blocked the emotional and physical pain and harm caused — from the judge’s behavior models. That’s why I suggest inserting outside input and individual human supervision into this tightly closed legal system. Judges have come to derive their authority from the system itself, rather than from the higher moral power of religion and law — two cornerstones of U.S. freedom.

5

It’s easy for clever educated people, most trained in the Christopher Columbus Langdell pseudo-scientific system of law, to manipulate language, to split the reality of the outcome from the so-called detached “rational intellect” that judges pretend to use to make decisions.99 The nobodies in the court equation, who often cannot win for any amount of trying, are predestined to lose. Their pain, their emotions, their lives, all destroyed — because judges deny the connection of language, science, and morality. Using secret practices, twisted words, and bullying, the modern court castle is now constructed. Each outsider can represent a serious threat to the castle. Judges and loyal subjects could lose the castle if outsiders — those lesser educated, lesser bred, less deserving people — are allowed inside as equals under the law. Are allowed to win. So they cling to the idea that what judges say are “real facts” and “real definitions at law”- and that this is something more than mere self-serving theoretical constructs, justifying their acts as defenders of the castle. That’s why groveling before a judge is so important. It is the outward manifestation of acceptance of the hierarchy and authority of the castle system. No matter how illegitimate that system may be. On a level playing field, Mike Rubin, Janice Wolk-Grenadier, Mike Gill, Theodore Kamasinski, and many others — the warriors outside daily attacking the flimsy rules and twisted semantics of the castle — they each might win.

58 INTERFERENCE AFTER DISQUALIFICATION

§

As a discrete small state, with the same judges running the bar, the courts, and each other since they more or less went to school together in the 1950s and 1960s, New Hampshire judges developed an ownership feeling — that they were above challenge, and could influenced case outcomes, even when removed from the case for disqualification. I’ve not met George Blaisdell, but I have met dozens of other defendants who all had the misfortune to be in the Rockingham District Court, where for over two decade, pro se defendants were systematically hosed by compliant insiders. Unbeknownst to each other, we defendants each fought to remove a presiding judge. Some were successful — kind of. But for this kind of abuse — a win with a new trial (after years of fighting) is at best a pyrrhic victory. Viewed alternatively, it is a double dose of the worst judging available.

99

This forced detachment of emotion out of court cases is hyped by the court system as a special judge ability to apply reason without passion. This pseudo-mental splitting concept does not serve justice. See generally Ludwig Wittgenstein essays, Philosophical Investigations, and Kren & Rappoport, supra 134-137.

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I went to the State Supreme court on interlocutory appeal (during the middle of my case) to get JNad off my case. I complained and filed motions to remove him and his BFF.100 I technically “lost” each appeal but because the judge removed himself, (as eventually did the GAL.) Then he appointed a protégée and transferred the case over to his home court. The case was pre-destined to come out more or less as it did. Intellectual Dishonesty. The semantic trick of avoiding the word “recusal” and “disqualification” and calling it a “transfer” or “reassignment” to avoid mandatory re-hearings is intellectually dishonest, but demonstrates the cohesiveness between judges to protect and carry the institutional banner to keep out dissenters — even those that win on appeal.

JUDGE IN A CLOSET AND OTHER COVERT OPERATIONS BY A DISQUALIFIED JUDGE TO AFFECT THE CASE OUTCOME. Example One: At my first final trial, Judge Coffey said she was testing the new courtroom video recording equipment for the first time. She ordered a VHS video made of the trial. She called the hearing; then stopped; started, stopped, started, stopped. Each time my brother Greg raised a motion or objection, Judge Coffey stopped the trial and went out the judge door. To confer with JNad, the recused judge in the video closet?? Each time, she returned with a fresh idea to remove my brother, to default me, to award every asset in the case to my husband without trial. Example Two: Mary Bonser, a decade before, finally got the infamous JNad removed from one of her cases (he later told a review committee that he assumed everyone in the county KNEW that the county attorney was his uncle.) Afterwards, she found a handwritten note (in JNad’s handwriting) in the court file — directing the clerk to avoid dismissal for 10 days, and tell the prosecutor to add a new party to avoid dismissal. The new party was her father’s estate. Mary photocopied the note, and the original disappeared from the record.101 Countless judges across the country each claim they have a ministerial act exemption that allows them to appoint their own successor and otherwise fiddle-faddle with the case after disqualified. When disqualified is an existing condition from the onset of the case, (for example, a judge failed to make the mandatory disclosure at or before the first hearing) that means they were always incompetent to sit ab initio. Yet they won’t let go. And the New Hampshire Supreme Court judges repeatedly condone this aggressive misstatement of authority. When pushed by case law, the Supreme Court found an illogical understanding of the federal-standard102 — illegitimately turning the standard inside-out, and declaring it to mean 180 degrees opposite what the M/y Johanny case actually held.103 Ministerial act is putting the papers back in the file for transfer — it does not include: ‘Cleaning up’ old rulings;

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Writing new orders; Appointing a successor judge; Transferring the case into the office (or video closet) located next door to the disqualified judge to facilitate easy access and private judicial conferences with the replacement judge; Making rulings about what standards are to be applied on review; establishing “facts”; and otherwise directing the case improperly after disqualification.

100 Recusal for judges trading favors with an attorney, see Leslie Abramson, Judicial Disqualification Under Canon 3 of the Code of Judicial Conduct, note 4 (American Judicature Society, 2nd ed. 1992); for failing to disqualify when the attorney was the judge’s close personal friend and who represented the judge in an unrelated real estate case, see In the Matter of Bivona, N.Y. Comm’n December 29, 2003 and In re Conti, Unreported Determination (N.Y. Comm’n March 23, 1987.) 101 Bonser v. Courtney, 124 N.H. 796, Bonser v. Nottingham, 131 N.H. 120, cert denied, 490 U.S. 1109, 132 N.H. 68; 42 U.S.C. 1983 Bonser v. Town of Nottingham, USDC NH No. 96-CV-343, Maloof v. Bonser, N.H. Supreme Court No. 95-605. 102 M/Y JOHANNY, 36 F.3d 136 , 141 (1st Cir.); U.S. v. O’Keefe, No.99-169, F.3d 281 (1999). 103 The legal term is violation of a rule of law.

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STALKING A CASE A judge who continues to make orders and influence the case after recusal “acts outside his jurisdiction” — a error of law.104 If failing to let go of a case was like failing to let go of a relationship, this so-called ministerial act treatment would be considered criminal stalking. And it’s that personal. JNad stalked some of his cases — once he took possession of a case and assigned it to himself, he wouldn’t let go, even after his conflicts of interest were exposed and removed. Outsiders were forced to investigate his connections. He was blatant and imperious, even when finally discovered. Catch me if you can. The State Supreme Court, in appeals and ethics complaints, just sat back and let him repeat the error of his ways — by personally interjecting himself against victims for years and sometimes decades. They covered for him. The top court knew and controlled the data, the docket information, and didn’t act, didn’t discipline, didn’t stop the case stalking. We defendants were as unimportant and unacknowledged as fodder. Until a brave and angry and confused few, with nothing left to lose, began speaking out.

59 WHO GETS PROSECUTED?

§

Secret behind-the-scenes influence allows insiders to evade prosecution — because it is important to hide the institutional failures, whether the institution is court or the CIA/Department of Defense.105 The New York study of judicial appointments to particular insiders is classic judicial doublespeak — where acts of over-billing and fraud in fiduciary cases is finally recognized, but no one is named, no one indicted, no fees are disgorged, and business continues as usual. Even the reporting these insider abuses is muffed — much like the decision to prosecute Edward Snowdon, but not Leon Panetta for leaking NSA classified documents to reporters.106

CHAPTER

Other serious abuses about who gets arrested, who gets indicted, and who goes to prison are extensively annotated in a report by the Texas Defender Service.107 Official misconduct, phony experts, race bias, snitches as the only prosecution witness — and many other examples of corruption in prosecuting capitol cases in Texas, have resulted in a

disproportionate death sentences to African American males where the victim is a white female. It also appears, death sentences are given to a significant number of innocent people overall.

5

41 of 857 capital cases, Texas108 police or prosecutors “intentionally engaged in practices resulting in presentation or risk of presentation of false or misleading evidence.”109 This includes threatening witnesses into false testimony; extorting confessions; experts who lie on the stand; hiding DNA evidence, hiding other confessions, re-prosecuting a defendant precluded by DNA. The judges often find such abuse to be “harmless” police or prosecutor error. 43 cases relied on snitch testimony — jailhouse informants who stand to receive favorable treatment for fabrication. Indigent defendants rely on public defenders — inexperienced, new, and impaired counsel who in almost half the cases, prepared no new investigation and raised no new claims post conviction, before filing short, cursory, losing briefs. “The system is flawed and riddled with misconduct and unreliable evidence.”110 104 Id. 105 Leon Panetta was formerly head of CIA and the Defense Department. 106 Dina Rasor, Government Secrets: Bureaucratic Wars on Who Gets Prosecuted, Truthout, April 14, 2014. 107 A non-profit organization of lawyers who represent death-row inmates in appellate cases. They provide direct representation, consulting, training and case tracking, and trial projects. See their report A State of Denial: Texas Justice and the Death Penalty at http://www.texasdefender.org 108 Texas ranks number one in executions since the death penalty was passed in 1977. It had 232 by 2000, and as this and several other reports conclude — grave injustices and the wrong people have been executed. 109 John Aloysius Farrell, Report Slams Death Penalty Process in Texas, Boston Globe, October 16, 2000. 110 Maurie Levin, a spokesperson for the Defender Service, Id.

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THE JENA 6 But the big boy case trick for manipulating who gets charged, in what court, and how harshly, probably goes to the Jena 6 — a group of six high school students in LaSalle Parish District, Louisiana who tried to sit under the “white tree” at their school for lunch. This was not in 1882, or even 1968111 — dates of the first and last lynchings in America. This was in 2006. One boy asked permission of the school principal, who told him sure, ‘sit where you want’, but the principal never acted to back it up. They did sit but the next day nooses were hung from the tree. Fights broke out between black and white students from August to December 2006, or about four months of simmering escalation. The District Attorney called the nooses a prank and he generally minimized to avoid dealing with the taunting and escalated feelings directed toward the black students. “I can take away your lives with a stroke of my pen,” he threatened them.112 When a taunting white student was injured in a general fight, DA Walters charged the 6 black students with attempted second-degree murder. Some were charged as adults, some as juveniles. Eventually on appeal and re-trial, each pled no contest to simple battery. Obviously, the acts of white students were first minimized, then treated with leniency and ignored. No whites were ever charged. The implication was blatant — death threats against black students would not be investigated by white prosecutors and law enforcement. Then, the DA made excessive criminal charges against black students — blatant racially-motivated law enforcement. All across America, simultaneous protests were held the same day as 20,000 people marched in Jena — the largest civil rights march in decades.

DRUG INDUSTRY CASES Another case worth following is the case of a juvenile in South Carolina — a 12 year boy old, who was prosecuted and sentenced as an adult. The case of Christopher Pittman, a child both abused and abandoned, and who suffered and had been hospitalized for severe depression. Christopher had just started taking the adult drug Zolof two weeks before he killed his grandparents, whom he loved and who had taken him in. Several expert psychiatrists testified about the reasons for his psychotic break and the effects of the adult medicine (which is specifically not recommended for children). The death tolls of anti-psychotic drugs are in tens of thousands if not more. Both the tremendous increase of manic-murder cases in America, such as school shootings, military shootings, and the huge increase in suicide as a major cause of death in America. The over-diagnosis and mis-diagnosis of millions of children (and the expansion of the sale and use of these drugs contributing or leading to this reaction) has lead to a similar de-legitimization in the mental heath industry,113 (as is provided by this book for the law industry.) Questioning the legitimacy of claims — appeals — and outcomes eventually rests on — “trust us, I’m from the government and we’re legitimate.” The difference between trial as a juvenile in Family Court (Family Court was an option for Chris Pittman) and Adult Criminal court was enormous. Family Court would have provided a confidential process focused on providing him treatment and rehabilitation. Jurisdiction would have ended when he turned adult age. Family Court would also have permitted Chris Pittman’s release with reasonable bail for him to get help. In adult court, he was denied bail and kept incarcerated three years before his trial. This judge’s decision pre-supposes as fact the drug-industry testimony — but later pharmaceutical research (by external scientists worldwide) suggests is inherently flawed. Flawed enough to raise serious questions about not only the drug-study criteria, but the public literature.114 And Chris’s case outcome. 111 From 1886 to 1966 over 3,500 Blacks were lynched in America in racial vigilante ‘justice’. 112 David A. Love, One Year After the Jena Tree Was Cut, Little Progress Has Been Made, The Progressive Media Project, Truthout, July 31, 2008. 113 An introduction to this topic, and the research supporting these claims can be found several places, including The Cochrane Collaboration Symposium (31,000 researches from 120 countries working to evaluate what is good scientific criteria and what is the prevailing invalid, unreliable biased clinical trials, passed off as ‘scientific’ research to drug users (largely in America). Thanks to Dr. Bruce E. Levine, PhD at www. Brucelavine.net; video summary of the Conference can be found at http://www.madinamerica.com/2013/03/the-systemic-crushing-of-young-nonconformists-and-anti-authoritarians/ 114 Id.

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Chris’s attorney claimed the judge had a bias and sided with the prosecutor on all the threshold issues. That appears to be so. And this juvenile or adult court issue is big for anyone with juvenile options. How fair was the judge? The website established for Chris has a number of interesting assessments and insights about the state’s handling of this case (The insights are written by a New York Family Court judge.) As a former family law attorney, I find this case disturbing all around — from the so-called unrecorded ‘confession’ coerced by Deputy Lucinda McKellar (from the child — without a lawyer, without family, and without any knowledgeable waiver of his constitutional rights, who had symptoms of a psychotic break — prescription induced or otherwise.) Disturbing also over the adult forum Chris was tried in. The way the trial judge excluded exculpatory witnesses and ignored numerous instances of juror misconduct — rings multiple bells with other cases in my research. But the biggest trigger in Chris Pittman’s case is that a drug manufacturer, protecting its market and industrysponsored drug research, interfered in this case prosecution — suggesting an industry-financial-component at work. This suggests a flaw and a biased imbalance in the justice process. There are multiple errors suggested — but the judge’s jurisdictional choice (made with the input of the prosecutor in selecting the criminal adult forum); appears to have impacted Chris’s ability to get a fair and neutral trial. It suggests some pre-determination or latent bias in the judge. And it also suggests the drug- industry invested big-time in this case by slanting and minimizing the existing scientific research and the known impact that genre of drugs has caused to tens of thousands of psychotic breaks (estimated to be from 4% to 10% of users,)115 for one anti-psychotic drug alone according to The Cochrane Collaboration.

CHAPTER

The reason I’m including Christopher’s case is the law trick of putting an impaired 12-year old juvenile into an adult setting. There are more disturbing flaws in other sections. The charging of juveniles for school infractions has soared, as schools fund positions for quasi-law enforcement employees in school. The tendency is to arrest, remove, and charge juveniles with felonies is an over-reaction now too-common across America. In Virginia, Governor Terry McAuliffe asked for a cabinet study to recommend policy-level changes, to prevent low-level misconduct from being automatically sent to into the juvenile-justice criminal lock-up system.116 It’s a country-wide problem with the escalation in criminalizing people everywhere, including prosecution of juveniles and people with mental health problems.

SELECTIVE PROSECUTION

5

This is sometimes called discriminatory enforcement. It can stem from a policy or from an individual bias, dislike or agenda. It can single out one or more, and avoid prosecuting or plea-dealing with the rest. It is a violation of the 14th Amendment Equal Protection Clause, and often has been raised in cases involving race, especially skin color. Remember that grand jury we talked about that was convened for one defendant and ended up indicting the San Francisco Chief of Police Earl Sanders, and his six of his top commanders and officers for cover-up? There were ten officers in all. The district attorney running the grand jury responded to jurors request for a list of officers and DA Terence Hallinan left some of the names out. The jurors wrote them in! DA Hallinan still did not indict — saying he wasn’t sure he had enough evidence.117

VINDICTIVE PROSECUTION The rule is early termination of meritless proceedings and prompt full disclosure. The national publicity from a university jock-rape case in Durham, North Carolina was great, and the local district attorney was in the limelight. So even after he became aware that the DNA test results did not support (and in fact exonerated) the three lacrosse players, he continued to prosecute. Finally the State Attorney General took over the case, called a press conference, and announced he was dropping all charges.118 
 115 Figures for one anti-psychotic drug by one American manufacture alone, Id. at the Cochrane Collaboration Conference, Interview with Peter GØtzsche. 116 Charlie Archambault, Center for Public Integrity, July 13, 2015 www.publicintegrity.org/2015/05/14/17327/Virginia-governor 117 Associated Press, Uncertainty in SF police probe, Boston Globe, March 9, 2003. 118 http://www.legalethicsforum.com/itigation as the government attorney in a criminal proceeding. The same duty exists for government lawyers in civil cases.

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Vindictive prosecution may be charged against either a judge or a prosecutor. It is not the same as selective prosecution. They are as night is to day.119 Vindictive prosecution has been described as “chaotic.”120 It involves prosecutor decisions about whether to prosecute, charge, sentence, and the prosecutor responses after a defendant seeks post-trial constitutional relief. A retaliatory prosecutor (and/or judge) acts unfairly, denying due process because a defendant is exercising a constitutional right. The chaos stems from the need to assess factors that are often unclear and may be contradictory. Examples we have looked at include Tommy D., the deaf man who appealed over and over, to the same judge, who made repeated false findings of fact to deny rehearing and release. Another case involves a North Carolina prisoner who, years after sentencing, obtained a reversal of his conviction, but was retried by the same judge who tried the first trial. That judge not only found him guilty again, but increased the sentence.121 I was also subject to this same process in my second divorce trial in front of Judge Coffey, after the default was partially overturned on appeal, but the judge arrived at the same lopsided 99.99% property division.

60 SETTING BAIL

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The defendant enters a plea to the charges brought by the United States attorney at a hearing known as an arraignment. A similar process occurs for state court. This is my personal experience with setting bail. My arraignment was after a long night in a holding cell. I had been moved from the county jail to the state prison. I was finally permitted my one phone call, but only after prison officials set up a movie camera on a tripod to video-record my call. I called the Associated Press. My bond was less than precise: the voice on the TV phone setting my bond seemed to be the bail bondsman, although that doesn’t make sense in hindsight. It should have been a judge. He was whiney, but obviously knew who I was. We negotiated. $10,000, he said. I’m a member of bar and an officer of the court; it should be personal recognizance only. He hesitated. You can call your family. They’ll pay. I have no family. Well, my fee for this is $40. You have to at least cover that. Where’s my car? My wallet was in my car. We confiscated your car. You had thirty-five cents in the ashtray. Well that’s it. That’s what I have. He accepted my thirty-five cents. Others have different experiences with setting excessively high bail or no bail — especially for those cases of what I euphemistically call the political prisoner cases. In the Elena Sassower case, for example. An attorney — non-violent — respectful — who they refused to set bail — for almost a year. I wonder if she was held in some inter-jurisdictional never-never land? Because she was an attorney ‘disrespecting’ a federal judge nominee/appointment122 and somehow pissing off two U.S. Senators?

119 Some judges treat post-conviction selective and vindictive prosecution as “almost indistinguishable.” See Gershman, Prosecutorial Misconduct, supra at 4:34. 120 Gershman, Prosecutorial Misconduct, supra at 4:33, 183. 121 North Carolina v. Pearce, 395 U.S. 711 (1969). 122 See Elena Sassower case at §70.

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And setting bail for an amount that seems not relevant to the severity of the crime — $100 out of pocket for attempted murder (arguably four instances of premeditated, attempted murder) by a mother of four-year old Downs Syndrome child. The mother expressed dislike for the child, tried twice to drown her in the bathtub, and once at the lake, and who talked about doing a Susan Smith drive into the lake. The case was disturbing because it was handled by an inexperienced judge, apparently swayed by non-judicial influences, and treated it as child abuse case by the state. Maybe, but $100 cash bail? Armed Home Invasion. In my mind, the whole trauma of being set up for an armed home invasion, my arrest, jail processing, holding, and my arraignment rolled into a blur that I could not internalize for many years. Because I hope my experiences might help others going through similar law enforcement abuses, I will try to break it apart. If and when it happens, even for people who are by nature cool under stress, it is a debilitating dehumanizing condition — all the more harrowing when instigated by one’s spouse. The deputy sheriff123 came out a couple days earlier, with another letter on Concord Police Department stationary from the new police chief. His second day on the job, and the new chief of police writes me a letter? Advising me not to make trouble and to vacate my home in 48 hours — (so my husband could have it.)124 He had no court order — because there wasn’t one.

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I knew this deputy sheriff, who handed me the chief’s letter. I didn’t let him inside. He hated to wear a uniform. That day, he was dressed like a lawyer, in tassel loafers and a tweed sport coat. It was cold and he didn’t have an overcoat. A tiny man, he blustered as he stood on my front porch. Our house was remotely situated, on a forested bluff overlooking the Merrimack River. You could see the sparkling gold dome of the state capitol from the backyard. As vistas go, New Hampshire doesn’t have exciting views, (like out west or on the coasts or the Rockies) but from my backyard, I could see low soft pine-covered mountains for sixty miles. This was a home where we hosted office staff on canoe floats on hot days and held backyard pig roasts for politicians. It was remote and rustic — charming. And I had recognized it instantly when I searched for a house to invest my life savings and retirement into. Chuck thought it would make a good governor’s mansion, and he agreed to sell his old house, albeit at a rather large loss, so he had no money to invest in this purchase.

5

No matter, I thought at the time. This house is my contribution to our marriage. Without a word to me, Chuck had the title closing company put the house title in his name alone. Because of my trial schedule, I was the last person that day to sign the closing papers, and that’s how I found out. I was furious, so he gave me a quitclaim deed for ‘my half’, but secretly took the deed back and locked it away without recording it. I had worked several years, renovating, remodeling, and doubling the footage under roof. Just about the time construction was finished (Thanksgiving weekend — heading into the Christmas holidays) is when my husband without forewarning, moved out — in secret — removing whatever he wanted — a unilateral looting on the morning of the day before Thanksgiving. Now, two days after one deputy sheriff visit, this same little deputy stood on my front porch, with swat teams and a dozen various county and city law enforcement vehicles in the circular drive. This was a couple years before the City of Concord bought the military Bear Cat. They were there, apparently, to do whatever it took to make me leave. I stood inside the front door (unlocked) with my Rottweiler Jake. I got Jake for protection a year before, after several attempted burglaries, a break-in and a fire, and after finding Chuck had purchased a second fire insurance policy on the house. The alarm system just wasn’t good enough to let

123 Funny how it is often sheriffs who do these buddy-buddy favors for the judge/husbands, — not the police. Local sheriff departments are highly political, as the highest elected local law enforcement authority in the county. Sheriffs seem to be the go-to people to provide Insiders with abusive law-enforcement favors. 124 Judith Thayer and her children had a similar experience a few months earlier. Sheriffs showed up with swat teams and a locksmith to bore open her front door to forcibly remove her and the children from her marital home. (Similar to my case, it was purchased with her money.) Ol’boys follow each other. I feel like it is the trusting spouse (who adds earnings, savings, and assets to make the marriage work) who are set up to be victimized by judges later. Spouses wouldn’t succeed in ripping off the marriage without the excessive cooperation of compliant Insider judges.

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me know in advance of all the possible events, so I purchased and steadily trained this beautiful dog as my early warning system. Jake responded to hand signals, whistles, and voice commands. Sometimes we played outside — Jake would sit; I would hide; when I whistled, Jake would come find me. He was magnificent. And aggressive. The deputy must have learned my dog’s name on his first visit, and as he ordered me to get out, he was nervous. Extremely nervous. I asked again through the closed front door the same question as I asked several days before — if the deputy had a court order. He peered through the multicolored stain-glass panels and could see and probably hear Jake lapping at a water dish. He never answered (because there was no order) but he yelled to the dozens of sheriff, police and swat officers -“She pouring gasoline on the floor. She’s going to torch the place. Break down the door.”125 As he was screaming “go, go, go” I ran backwards through the house toward the river view, and seeing more officers in my backyard, I turned and headed down to the basement bulkhead where my car was parked a few yards away. Officers started whistling and calling Jake’s name, and Jake hesitated, turning his head back and forth to follow the different direction of the calls. I left him by the picture window, where he was sorting out the sounds. On my way through the basement, I spotted a small box, tied with a filmy gold wire ribbon with a big bow. It was a present from my children years before when we were barely scraping by. One Christmas when I was in law school, we were so poor we cut out pictures from magazines and catalogues, and secretly wrapped them for each other. They were pictures of the gifts we wished we could give each other. We were so generous that year — colored pictures like sets of paper dolls. That year, I had bought a house, and I struggled to make the payments with two jobs ands law school classes. This was Sacramento, and there was a three-story high naval orange tree in the back yard. We ate hundreds (maybe thousands) of fresh oranges — for free — and dined largely on baked potatoes and blue and orange boxes of Kraft macaroni. I still love all three — the three basic food groups. I grabbed the box with the gold ribbon as I fled up and out the steel bulkhead into the winter snow. The swat teams had not covered the bulkhead door, and I burst through and sprinted across the snow to the trees beyond. Just before reaching what I thought would be safety, a black hooded figure with an AK-47 appeared. “Stop or I’ll shoot.” He was quickly joined by others, similarly attired. Two regular uniformed police handcuffed me and the same deputy made a point, as I was driven to downtown Concord, to tell me they killed Jake, which didn’t make me cry, but made me mad and sad and tight-lipped. You never let them see you cry. That’s what all this about — and tears are sign that they got to you at your core. Reduced you to nothing. Broke you.126 Whether it was what my husband intended, this little man would take pleasure in seeing me break. I ended up in the cement block basement of the Concord jail, initially with some female guard to process me. Apparently that included a strip search. I still had the box and she took it roughly, “What’s in the box?” “Angels,” I said. She didn’t understand and asked again. “Angels. From my children.” Warily, slowly, she untied the ribbon and lifted the lid. Inside were two homemade wood rose angels nestled in tissue, from that poor Christmas years before. They made the angels at school — kindergarten and third grade. I was glad for my impulse to grab them, not to leave the angels behind. 125 There was never any gasoline or anything liquid and flammable. I wonder if the diminutive deputy, fearing failure in his mission, simply made up something to justify battering down my door (which was unlocked.) I counted 19 law enforcement personnel that day — some black-clothed with hooded masks, some in uniform. 126 Linda Wojas, Pame Smart’s mother, told me this was the same female instinct that she used to counsel her daughter throughout the murder trial whenever Pame was going to collapse or cry. Stay poised, because once you start you may not be able to stop, and the world will judge you guilty. I don’t know if the advice ever works, but it’s what came to me that day handcuffed in the back seat of the cruiser when they told me they shot and killed my dog.

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The angels took the mean out of that woman. She stared hard, and then she changed. There was no strip search, and she must have said something because the next round of officers who drove me 20 miles out to the prison at Penacook were quiet, as were the processing officers who strapped me into an electric chair to take my fingerprints. I had been fingerprinted when sworn in as a lawyer — both in state and federal court, but the new state DNA lab had just opened, and, after the ACLU debacle with my client,127 I declined to volunteer my DNA. They did not force me, although I was leather strapped, head, chest, arms, and legs, into what looked to be a restraining chair suitable for execution.

61 GRAND JURY ABUSES AND USES

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The grand jury is the fourth arm of government. In 1964, courts started denying citizens access to grand juries. Under the Constitution, a felony criminal case may only proceed beyond the initial stages if the defendant is indicted by a grand jury. The grand jury reviews evidence presented to it by the United States attorney and decides whether there is sufficient evidence to require a defendant to stand trial.128 Originally, Grand Juries in England were to protect citizens from overreaching by the King. Modernly, there are two (flip sides) to potential abuses. Once a grand jury is empanelled, they sit on all cases for a set period of time. In San Francisco, the grand jury meets twice a week for four months and there are three grand juries a year. In Virginia it is once a month. Anyone is supposed to be able to ask to present a matter to the Grand Jury,129 although Janice Wolk Grenadier, a pro se, twice tried, but was waylaid by a judge, who at the time of her pre-arranged grand jury presentation, had security guards approach her in the court hallway and escort her into an adjoining courtroom where a judge detained her with a “preliminary” hearing until after the grand jury was dismissed. The preliminary hearing is one-sided for the prosecution/presenter to show a nominal probable cause to hold a person for further charges and trial.

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The defendant (or his attorney) is not allowed to be present to hear witness testimony. The hearing is secret, behind closed doors. No public, no press, no leaking. Only the prosecution/presenter gets to speak and present evidence and witnesses. The rules of evidence don’t really apply. The stated purpose of a grand jury is to avoid prosecutorial overreach.

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The proceeding is often based on bad and incomplete evidence, doesn’t have to be true or evenly presented. ‘Nominal probable cause’ means evidence may be so flimsy and malleable that a grand jury will indict the proverbial ‘ham sandwich’ as a defendant for trial.

ONE HAM SANDWICH CASE Judge Richard S. Sheward130 dismissed charges brought by the grand jury and complained about flimsy cases where everyone gets indicted in an assembly line, where “cases are run through and we rubber stamp them.” Court dockets in the Common Pleas Court in Columbus Ohio run 700 to 800 cases for each of 16 judges. Sheward complained that local prosecutors and police overload dockets with irresponsible charges — such as one against a bonded-state-certified security guard who services cash machines for banks. He was charged with carrying a concealed weapon. “The guy has a responsible job, no prior record. We probably screwed up his life,” groused Judge Sheward.

127 See below § the ACLU DNA debacle. 128 Information from the U.S. court website. http://us.gov/uscourts/FederalCourts/Publications/English.pdf 129 Citizens seeking to go before a grand jury may get additional help from PreSeAmerica.net 130 Bruce Cadwallader, Judge Said the Grand Jury Is Nothing More Than a “Tool of the Prosecutor,” Columbus Dispatch, November 3, 2000, as reported in J.A.I.L News Journal, November 9, 2000.

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BUT, NOT EVERYONE HAS EVEN HAM SANDWICH RIGHTS Citizens don’t always get a grand jury, even under the 14th Amendment, and some want one.131 The problem in criminal prosecution is that the State is considered the plaintiff — so even the victim or the survivor or witnesses are not allowed to bring a claim to the grand jury — they lack standing.

A HISTORY OF THE GRAND JURY STANDING PROBLEM132 Standing was a real problem for a Kentuckian named Blyew who had been subject to an armed home invasion by white Crackers. People were murdered. Coloreds were incompetent to testify against whites, and the white witnesses had all disappeared. Federal statute provided federal courts had jurisdiction to try all cases including — “civil and criminal in causes affecting persons who are denied or cannot enforce in the court of judicial tribunals in the state or locally where they may be, any of the rights secured to them” (namely full and equal benefit of all laws and proceedings as those enjoyed by white persons.) But standing was (and in other regards is still) a problematic issue in grand jury matters.133 In Blyew, whole class of people were denied access to the grand jury because they were not allowed to testify — laws required a white person to testify against another white person on behalf of the colored person.134 Modern issues of standing, it could be helpful in cases where the victims have no standing to bring criminal actions to the grand jury — (if the AG or Prosecutor refuse to do so) — to address and expand the standing issue. It has been suggested that officials other than the Attorney General/Prosecutor should be able to go to the grand jury, for example in matters of judicial misconduct where the parties lack a forum to have their grievance heard. A proposal was made in Illinois to appoint a citizen grievance panel to review judicial conduct complaints, possibly with authority to take cases directly to the grand jury if a criminal matter, or to a pre-trial panel if a civil disciplinary matter.

GENDER ISSUES IN THE GRAND JUROR POOL The issue of gender was reason to throw out a male-dominated grand jury indictment of a mass murderer in Ventura County. The jury “failed to reflect a cross-section of the county’s population.”135 It was the second time in a year the grand jury indictment was dismissed against a rapist-murderer “accused of gunning down a 20-year old Moorpark College student.” Judge Ochoa found that the grand jury pool had been dominated by volunteer male jurors for seven years or more, and less than one-third of the juror pool was female. That constituted defective procedures used to seat the jurors. However, accused rapist-handyman Vincent Sanchez had already plead guilty in ten other rape assaults on other women, and those cases were not affected.

THE GRAND JURY AS A FISHING EXPEDITION In theory, the FBI can’t just enter and search your home to obtain information about your politics or activities. But by invoking the grand jury process, the FBI may fudge on the charges in order to do ‘research’ on people who ‘have some beef with their government.’ Notably in the recent past, the government has used the grand jury process as a means to get subpoenas to scoop up materials from a dissenter’s home and offices without constitutional restraint. In Portland Oregon, the FBI and a Joint 131 Hurtado v. California, 110 U.S. 516 (1884) and Blew v. United States, 13 Wall 581, 80 U.S. 581 (1871). 132 Many thanks to Professor/Attorney Andrew Jackson of the Judicial Disability Law Project for these historic cases and ideas. 133 United States v. Ortega, 11 Wheat 467, 24 U.S. 467 (1826); see Plessey v. Ferguson (Harlan dissent), 163 U.S. 537 (1896). 134 Blyew v. United States, 80 U.S. 581 (1871). 135 Tracy Wilson, LATimes, Ruling on Grand Jury Gets Dropped. March 12, 2002, as reported in J.A.I.L. News Journal, Los Angeles, Ca. June 5, 2002.

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Terrorist Task Force conducted multiple raids with warrants from the grand jury, taking computers, phones, clothing, and anarchist literature they claimed related to violent crime. It sounds terrorist, right? These political objectors were suspected of causing relatively small scale property damage at Starbucks and several other locations (spray painted cars, slashed tires, and smashed windows). The point seemed to be to cause intimidation and collect information among the protesters. It’s not condoning domestic protest-violence, but as Justice Broderick asked in my case, is it okay for a trial judge to use a nuclear arsenal when a bow and arrow would do?136

UNINDICTED CO-CONSPIRATORS This is the other side (do we have three sides yet?) The Justice Department has been known to release lists of names of unindicted co-conspirators — which throws a pall over who ever is on the list, while not actually charging them. It threatens and is coercive, but is it honest to do this. The department has guidelines against releasing such names but the argument claims maybe the release was for some undisclosed but important law enforcement purpose. Defense attorneys call it ‘overreaching’ and claim DOJ is unfairly targeting — Muslim organizations, in one case.137 The point of a tactic is not that the un-indicted have necessarily done anything wrong — it could be as nominal as making a hearsay comment that is reported to the jurors, but it implies, for example, terrorist association or cooperation. In this case, the un-indicted sued to get their names removed.

ANGRY GRAND JURY WITH A MIND OF ITS OWN

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Once a prosecutor makes the choice to go to the grand jury,138 those nineteen people “decide your case for you.” A San Francisco district attorney wanted to indict two off-duty police officers, who beat up a man at a Union Street bar after attending a police chief promotion celebration party a few blocks away. The prosecutor put on 42 witnesses, and in his opening and closing statements invited the jurors to look at the evidence as they wanted.139 The jurors returned 10 indictments, including top police brass. They indicted the new chief, the deputy chief, and other ranking officers, and the son of the chief — for obstruction of justice in impeding the investigation. This expansion of the scope of trial can be risky, unless the DA has evidence to support the expanded parties and charges. But the grand jurors sure made a notable political statement.

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At a higher federal level, the excuse of lack of standing is political judge trick manipulated by the highest Court to avoid hearing Presidential abuse-of-power cases, especially those involving important Constitutional challenge issues. The trick is one of omission — the Supreme Court declines to act. It’s called abstaining, although sometimes, the court finds there is no one with standing to bring the suit. The argument becomes highly esoteric: no one except maybe federal Congressmen or Senators have actual standing or concrete “harm” to sue the President, (except maybe the United States of America, but America’s attorneys — the Department of Justice — are the perpetrators, so they won’t sue). Although the courts found federal legislators may have standing when the President nullifies an act of Congress, but in the end, none really qualified as ‘actually harmed’. Basically the twist of this judge-made law is that in a country of 317 million people, when the President avoids following the law, there may only a handful of U.S. Senators and Congressman who are directly injured enough to sue because the court says it won’t hear a ‘generalized’ grievance. So while it’s not okay for one person out of 317,000,000 to chose what laws he wants to follow/enforce as President, there is no one with adequate “standing” to stop him because of a so-called “blind spot” in the Constitution, as discovered by modern day judges.140

136 Unfortunately, for all us lesser beings, Justice Broderick found that a judge using nuclear weaponry out of the available arsenal of ‘cure’ remedies, was just fine in my case. See Douglas v. Douglas New Hampshire divorce appeal. 137 Neil MacFarquhar, “Muslim Groups Oppose a List of ‘Co-Conspirators’”, NYT, August 16, 2007. 138 Alternatively, the DA could have just filed criminal charges and taken the case to the judge for preliminary hearing on probable cause. Here, the police department failed to properly investigate, and the DA went to the grand jury. 139 Chuck Finnie, SFPD Indictments Shock the City: Angry Jurors, Chronicle, March 1, 2003. 140 For an example of Supreme Court analysis of federal standing in a NSA 3rd party foreign surveillance matter, see Judge Seyla’s opinion (redacted) in United States Foreign Intelligence Surveillance Court of Review re http://fas.org/irp/agency/doj/fisa/fiscr082208.pdf

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Issues where the Supreme Court declines to review Presidential orders not to follow the existing law or the Constitution include: 1. Executive orders include stopping 1.76 million deportations and avoiding enforcement of violations of the Immigration and Nationality Act; 2. Executive order to suspend and not apply some provisions of Obamacare; 3. Selective prosecution of certain selective political opponent groups opposing the President by the IRS or the DOJ. These groups include the Tea Party, certain religious and socially conservative groups and individuals; and others perceived to be political opponents of the President; 4. Executive Orders to suspend prosecution and enforcement of other existing federal laws; 5. Executive Orders (to suspend the Constitution) by allowing the abduction and killing of American citizens by government forces without due process. 6. Executive orders establishing a secret death committee to accomplish #5. Generically, these are a Constitutional crisis: a. When the Executive Branch nullifies acts of the Congressional Branch by Executive Order; b. When the government practices selective prosecution based on discrimination; c. When the Executive issues orders that misuse federal agencies including the IRS to punish political opponents; d. Overall, practicing the selective enforcement of law; e. Forcing an Executive political operation/agenda after Congress failed to pass the same Presidential program/ bills.141 Amazingly, Richard Nixon was threatened with impeachment and he resigned from office for the same thing — for illegally using the FBI to target, spy, harass and prosecute his political critics, using their own government. What changed? At a time when the Supreme Court could/should act — it keeps ducking. The judges avoid review and confrontation with the President over the Separation of Powers clause, the Take Care Clause, the authority to declare war, and kidnapping and ordering the deaths of American citizens without due process. The Court seems afraid or unwilling to exercise the judicial role of checks and balances over the executive, and largely by manipulation the judge-created excuse of ‘lack of standing.’ More crimes and harms without a forum to be heard — if anyone is making a list.

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THE STATE ATTORNEY GENERAL OR THE FBI? Practices in this category are usually the acts of overzealous investigators or prosecutors, state court lawyers who collude with federal agencies to enhance the terror/prosecution threat to defendants. With the marriage of military to local law enforcement, and even local law enforcement lusting to become a SWAT force, the degree of over-reaction by law enforcement across the country is epidemic. We can expect to see more of this kind of ‘trick’ designed to coerce defendants to give up their fundamental rights. Innocent people become targets of government investigation. When that happens, individuals with power and authority may run amuck over the rights of everyone. But the practices exist only until the courthouse door — where judges are expected to be an upholder of defendant rights. The tacit encouragement and compliance of judges in law enforcement trickery becomes a bonafide sneaky judge trick, because of judicial bias and sympathy for the prosecution trumps the rights of the accused. Trampling personal rights of a suspect would only survive as a bureaucratic practice — until it reaches the courthouse, if judges would not silently condone and encourage it. That is not a proper judge role. Once in the courthouse, judge duty adheres. 141 See Cato Institute, http://cdn.cato.org/archive-2014/cpf-05-21-14.mp4

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Overall, I oppose sneaky prosecutor tricks, even when they are “legal”, such as lying to defendants to trick confessions. It’s a matter of morality — law enforcement says its okay to lie to suspects because of a greater good in catching a lawbreaker. But is it really? The opportunity to misuse is so great, and the state’s prosecutorial resources so disproportionate with any defendant’s, this ‘accepted’ lying to get an early ‘win’ is a bogus public policy which should be exposed, examined and corrected by the judge. But too often judges work with prosecution in a myriad of subtle ways to coerce an accused into giving up fundamental rights, and in the end, they work to unbalance the scales of justice.

EXAMPLE ONE: THE CONCORD BOMBER Several examples are contained in a case involving a manhunt for the Concord Bomber — an inept bomber who in 1997 left a crude pipe bomb on the steps and another in the stacks at the city library — located across the street from the legislative office building. There was no explosion, but for several days the city quaked over phantom bomb threats that the Concord bomber would strike again. Nothing indicate this was a threat about judges, but the newspapers were covering the Gadfly, I was noisy and testifying, and judges were getting paranoid. And the Supreme Court hired its own public relations lady from NPR, married to an AG.

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Local police apparently had no leads and never found the Bomber, but they rounded up a variety of local men, with a profile like Joe Haas, a judicial reform activist who regularly followed the legislature. They targeted and interrogated local men willy-nilly, largely looking especially those who testified at legislative hearings about the need for judicial reform. Suspects were detained and told they had to provide spit or nail clippings to the local police. One refused. He was told he was a suspect “because you have a beef with the judiciary.”142 He was arrested and taken to court hearing over his refusal to provide DNA material for the newly built state DNA laboratory. The man was initially charged by the State Attorney General’s office. But the state AG finally must have realized there was no state law to prosecute someone who refused to volunteer his DNA. At the time of hearing, the case quietly shifted to the FBI and he was taken to federal court. His case was the only one, and the judge inexplicably failed to show up. He sat with the FBI, the State AG, various county sheriffs, U.S. Marshals and attorneys in an otherwise empty courtroom for over an hour while he was intimidated with words, whispers, gestures, crowding, and threats of immediate incarceration as soon as the judge showed up.

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Just spit. Then it will all go away and you can leave.

After an hour, overwhelmed by fear, he spit onto a paper plate conveniently handed to him by a bailiff. The judge suddenly appeared and dismissed the case. As the courtroom cleared, the bailiff threw the paper plate into the trash.143 Staging a scenario to increase the defendant’s apprehension and to coerce a ‘voluntary’ DNA sampling was all done outside of the presence of the judge, who later could claim he knew nothing about the drama and coercion coming to a head in his courtroom. However, such tactics used by law enforcement to break the balls of non-cooperative citizens, and are allowed to occur with regularity because sympathetic judges tolerate it.

142 That phrase was said by several law enforcement about the suspects that were rounded up for interrogation. Each had testified in the legislative study committee hearings about problem judges. I know the supreme court judges plus the so-called Supreme Court Judges personal ‘ethics attorney’ Eileen Fox used to sit in the front row and take notes when I testified. 143 This client contacted me, and not being a criminal attorney, I called the local ACLU, and talked a hot-shot attorney there, who was good at grandstanding. He agreed to represent the man pro bono. I trusted the client was in good hands and did not go to this hearing. After hearing about how the hot-shot was also coercing his client to spit, I recognized the ACLU was just individuals who each could sell out to the fraternity. The ACLU lawyer probably got a couple brownie points with the AG or FBI for flipping my client — that he could use later to trade a better plea deal for some other paying client. This case taught me that sometimes, you have to just go do things yourself. I didn’t recognize ‘rankism’ back them.

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Here, switching to a federal forum without proper notice, use of federal and state law enforcement to threaten, whisper, taunt the defendant by holding him in the courthouse indefinitely, were actions that occurred in that judge’s courtroom. It is naive to suggest there was no judicial compliance in the appearance, timing, and staging to coerce this defendant’s so-called ‘voluntary cooperation.’ I suspect there was no federal mechanism either at the time to search him for DNA for the database. So they had to intimidate him into cooperating. And if there might be some doubt, the back-slapping and congratulations between the man’s un-civil ACLU attorney and the other actors on the way out of court should reinforce the success of such a sneaky trick. Winning at all costs is about tricks. But justice and fairness aren’t had by tricks.

DIFFERENCE BETWEEN FEDERAL AND STATE SYSTEMS Major differences between the state and federal prosecutor conduct is demonstrated in the Arizona case involved in a shopping center parking lot where a lone gunman shot Congresswoman Gifford and others. Here’s a summary:144 1. Different rules of evidence apply, especially relating to what evidence the prosecution must give the defense before trial. 2. Defenses. Insanity defense may apply in a federal case; but not in a state case under state law. 3. Who investigates? The Pima County Sheriffs or the FBI? Here it was both, with accompanying territorial conflicts and resistance to sharing information. The feds sent in 250 federal law enforcement officers and investigators for this simple single-shooter case with plenty of eye-witnesses; the sheriff’s department is the seventh largest in the country and has 516 officers, 872 civilian staff and 350 volunteers, 2 airplanes and 300 cars. You do the numbers. Did they really need the feds? 4. Public access. Here President Obama sent in the FBI. When the DOJ is involved, they release less or significantly less information to the public. Here, Pima County Sheriffs were liberal in their press releases concerning their part of the investigation. (Arizona has an open government law.) 5. The FBI was first to file charges and the FBI put the information into federal databases for ‘specific events’ and ‘critical incidents’: namely Operational Response and Online Network (“Orion”). The state was slower to file state charges. 6. Under Arizona state law, the defense is entitled to know and interview everyone the prosecutors investigate that might be called to testify — virtually everyone involved in the case. Federal law conceals much of that information and provides a lesser right for the defense to have that information. Federal pre-emption. The question of which court has jurisdiction to proceed (state or federal) is further complicated by the court-made ‘federal preemption doctrine’. Several U.S. Supreme Court decisions have stated that when a federal law conflicts with a state law, federal law will trump or “preempt” state law — leaving the state law without effect. More recently the populist movement to re-assert state sovereignty and state rights, and state jurisdiction for citizens to sue locally, has led to political challenges to any federal expansion.145 There is more explanation of other more recent federalstate doctrines, Congressional acts, and law in the chapter on appeals, especially regarding sentencing. For example, although permitted by state law, federal law precludes suing a drug manufacturer. In the Birth control skin patch case, a class action suit was about the damage caused by under-labeling the amount of estrogen included in the patch. (Ortho Evra) Apparently, it was a lot. The FDA approved label failed to advise of a greatly increased risk of blood clots and strokes.146 The local case under state law was dismissed for lack of jurisdiction, because the FDA involvement allowed the drug company to invoke the federal pre-emption clause, leaving state law moot. The problem of harm caused became an orphan — a harm without a forum to be tried. No forum for obtaining discovery, to investigate or to question the FDA or Johnson & Johnson.

144 From an article by Kirk Johnson and Charlie Savage, “Differences in Federal and State System Could Complicate Prosecution,” NYTimes, Tucson, January 14, 2011. 145 This is a simplified summary that doesn’t discuss whether or not Congress made a clear purpose in the federal law. This book is intended to be a summary of issues — not the practice of law. 146 “The Dangers in Pre-Emption,” NYTimes, April 14, 2008.

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63 LAW ORPHANS: JUDGE-LAW DOCTRINES TO AVOID CASES

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Judges and politicians have created some law weapons that deny citizens access to court — thereby avoiding enforcement of Constitutional or other rights. They use several judge-made doctrines — which I call ‘judge-made law.’147 There are more (see all appeals chapter) but two notables in the pre-trial chapter include: Rooker-Feldman has been used since the Reagan Administration by federal judges to refuse to enforce the 1983 federal Civil Rights Act.148 Younger Abstention was a case I challenged in my First Amendment rights for lawyer cases now cited by state courts all over the country to stifle lawyers from making public criticism of judges. As a lawyer, I was shocked to find out that I had no forum to enforce my First Amendment rights to criticize judges or the courts. Once I took an oath of office to uphold the Constitution and the laws of the state (at my bar swearing in ceremony for both state and federal court) — I thought that was my attorney duty — right there. I was corny enough to believe it — in fact was outraged when I figured out under the nonsensical reasoning of court/bar oversight of lawyers, I was supposed to owe a higher duty to judges (to ‘protect them under the banner of ‘the integrity of the judiciary’) than to the U.S. Constitution! AIN’T HAPPENING

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Wow. I thought my world turned inside out when I realized I can’t continue to hold a bar license and publicly accuse a judge of misconduct without severe, even deadly retaliation. That’s why you don’t hear any lawyers speaking out. If they do, they are very careful how they say, whatever it is they finally end up saying.

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By not upholding the First Amendment speech rights of lawyers, bar associations can and do retaliate against whistle blowing lawyers. A so-called lack of ‘professionalism’ becomes an indirect excuse to take the professional license to practice law.149 Prior to the unification movement, a professional law license formerly was an individual property right. It is now called a privilege, bestowed by state court judges and limited to good behavior as defined by … the bar oversight committee … under a nebulous and subjective platform of rules that my ex-husband claimed he wrote his first year on the top court bench. Both doctrines reverse the act of Congress and allow states to finally decide whether or not they will protect or enforce the federal constitution and federal rights.

147 Judge-made law is not common law or statutory law or constitutional law. Some states try to intertwine judge-made law as just a later version of common law, but judge-made law arrived centuries later. 148 Rooker-Feldman was an act of Congress that prevents federal courts from hearing a state court violation of a federal civil right. The underlying circumstances always involve a state court creating the federal rights violation during a state trial on a state issue. Rooker-Feldman is yet another example of the government making a forum-less crime — so a federal Constitutional violation by a state court judge has no where to go. There is no federal forum, and therefore no remedy available at law. So many orphans. 149 My own federal court brief challenging Younger in my own First Amendment rights case is available if other lawyers feel ready to retire by taking on challenges on this doctrine. Who better than lawyers to expose the tricks of judges? No one knows better. In Younger, the U.S. Supreme Court refused to uphold First Amendment rights of lawyers for almost any matter involved with public criticism of a judge.

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64 “PLEA BARGAIN MILLS AND FRAME-UP FACTORIES”

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A social policy of state bullying of criminal defendants. America has the largest percentage of citizens behind bars of any country in the world. One out of every 32 US citizens is behind bars, on probation or on parole.150 Criminal justice operates most efficiently if defendants would just admit guilt and stop clogging the court dockets. I call it “that pesky due process”, which sure gets in the way of efficient judging and turning cases.151 Prosecutors and judges both hate it. Legal author Paul Craig Roberts, an active proponent for the wrongfully convicted, calls the high conviction process in America a product of “plea bargain mills and frame-up factories.” The federal court website handbook says: Most defendants— more than 90%152—plead guilty rather than going to trial. If a defendant pleads guilty in return for the government agreeing to drop certain charges or to recommend a less severe sentence, the agreement often is called a “plea bargain.” If the defendant pleads guilty, the judge may impose a sentence at that time, but more commonly will schedule a hearing to determine the sentence at a later date. If the defendant pleads not guilty, the judge will proceed to schedule a trial. Because so many people plead guilty and forego trial by jury, it stands to reason there are a disproportionate number of innocent people incarcerated. Roberts claims innocent victims in prison number in the hundreds of thousands as a result of a system that preys on the often naive, frightened, and coerced prisoners, including innocent and innocent but coerced-confessed defendants.153

HISTORY AND EVOLUTION OF PLEA BARGAINS A letter about a surprised and angry criminal defendant’s personal experience “When you are accused of ANYTHING and get a lawyer, ‘simple standard procedure is to kick a plea agreement out of the computer’, then set your client up for a plea agreement, not a trial. They act like this is ‘normal.’ I contend it is A MAJOR CRIMINAL CONSPIRACY. They do not tell the client about this ‘normal procedure’ until the last moment, then use coercion, intimidation and threats causing extreme stress and depression to force the clients to sign. They all pretend that ‘at the last moment the prosecutor has made this incredible offer they must take or spend years in prison.’ Nondisclosure to this contract is why there are very few trials-it is the major reason there are no trials. This needs to be STOPPED. Lawyers need to be prosecuted-and I mean from both sides—most importantly the judges know this is ‘normal procedure’ and they allow this illegal nondisclosure to continue daily—happily listening to people lie about their guilt and then sending them to prison for whatever the prosecution dictates. I believe there are several hundred thousand people who would testify to this happening to them and a major lawsuit with several hundred thousand people’s names on it would stop this horror.”154

150 Paul Craig Roberts, America’s Injustice System is Criminal, 2006. 151 A state incentive to waive a fundamental right: “A procedure which offers an individual a reward for waiving a fundamental right or imposes a harsher penalty for asserting it may be not sustained.” See Darrell K. Harris, U.S. Supreme Court and NY Court of Appeals, George Bundy Smith dissent regarding a state statute, which impermissibly discouraged defendants from asserting 5th and 6th Amendment rights. 152 This figure is understated. In 2012, Justice Anthony Kennedy noted that 97% of federal cases and 94 percent of state cases are resolved by guilty pleas. Criminal justice is a system of pleas, not trials, he noted. NYTimes, July 17, 2012, 22A. 153 Have you ever wondered where all the men went in America? In addition to war casualties, and a slightly lesser birth rate, the millions of men locked up are a result of the new policy to expand what we criminalize. Criminalizing more and more Americans for actions never thought to be illegal, adds to the disproportionate male-female ratio in the U.S. 154 Nan C. Anderson, Worse than Mockery — the Campaign Against Judicial Fraud, J.A.I.L. Newsjournal, October 14, 2000. Ncanderson7@earthlink.net

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I have to agree with this angry man. I have seen too many cases where criminal defense attorneys charge a flat fee (twenty to fifty thousand) for a trial, then do almost nothing to prepare, and on the eve of trial (sometimes earlier) try to manipulate and frighten the client to accept some ‘great’ plea bargain. You can’t get your money back, and even if you tell the judge you are innocent and want to go to jury trial, you have to raise a second and a third retainer for the same bogus defense. Last minute — the coercion to take the plea deal is emotionally crushing — even for innocent defendants.

GAME THEORY FOR PLEA BARGAINS

Computerized algorithms are used to plot out possibilities for sentences under plea bargaining as computer code moves the destruction of people’s lives to an abstract game level of decision-making. Plea bargaining enhances system inequities. Plea bargains are coercive to innocent people — who act out of great fear because of a system of overcharging defendants with a greater number of crimes and increasing the risk and costs of mounting a defense. The government incentive is to over-charge defendants, making the coercion factor so great (the risks so great) as to create an oppressive environment to plea, — even if a defendant is not guilty. Due to the disparate powers of the prosecution (and resources of the government), and the lack of resources to obtain an adequate defense by criminal defendants, defendants get exploited. Even if prosecutors have only a flimsy case or no evidence or no case — they bluff to coerce a plea. Prosecutors dictate excessive and harsh terms and defendants have no real bargaining power to negotiate. This is not an equal playing field. The Supreme Court warned that this over-charging incentive for prosecutors could be considered coercive and therefore unconstitutional. The Supreme Court only approved plea bargains conditionally in 1970 (in Brady) and warned there are coercive constitutional questions about the practice.

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The practice has been banned in several western countries as unfair, and banned or limited in four U.S. states (Counties in Louisiana, Alaska, California and Michigan). The modern practice imposes undue fear in defendants and it discourages the exercise of a constitutional right (especially in death penalty cases). So it is a waiver of trial — a fundamental right that is supposed to balance the deficiencies of state prosecution — that doesn’t get utilized especially in weaker or insubstantial state cases. Because arguably of a state terror factor — 155

5

Even when the charges are more serious, prosecutors often can still bluff defense attorneys and their clients into pleading guilty to a lesser offense. As a result, people who might have been acquitted because of lack of evidence, but also who are in fact truly innocent, will often plead guilty to the charge. Why? In a word, fear. And the more numerous and serious the charges, studies have shown, the greater the fear. That explains why prosecutors sometimes seem to file every charge imaginable against defendants, and why judges exert themselves at trial, and cross ethics and legal boundaries, to instill fear in outsiders, especially individuals perceived to be challengers or threats to the insider loyalty system.

A PRAYER FOR TIMES OF STRESS AND FEAR You are on the path of my choosing. There is no randomness about your life. Trying to keep control of everything is impossible, and is a waste of precious energy. Recognize that energy is precious. I will be with you all the days of your life. Take my hand. I am with you continuously so do not be intimidated by fear. Keep your eyes on me, enjoying peace in my presence.156

155 Martin Yant, Presumed Guilty: When Innocent People Are Wrongly Convicted (1991). 156 Paraphrase of June 19th, Jesus Calling, Enjoying Peace in his Presence, by Sarah Young, Thomas Nelson Publisher, 2011.

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The criminal justice system does not exist in a vacuum. Although lawmakers are reluctant to address the unintended consequences of public policy or to take on super-charged prosecutors who have been empowered by politics and money — there is responsibility enough to go around to make change to this and sentencing policies, which has led to the lock up 1 out of every 32 Americans.157

THE NATIONAL SOCIAL POLICY ALLOWING PROSECUTORS TO OVERCHARGE DEFENDANTS Prosecutors list a high number of criminal charges to coerce and intimidate defendants158 to plea bargain for a lower number of criminal charges. It is a state system set on winning at all cost, beginning with charging. My experience is that even highly educated and bright people get ensnared and overwhelmed by the criminal charging and plea bargain system. And that is part of its social design. Although innocent, most people are not prepared for what is required to cope with an overwhelmingly stacked state deck. They plea because they are afraid, they mistrust the legal system, and because it costs so much to wage a defense — money they don’t have, and can’t afford, and can’t beg or borrow. Often, a defense can run upwards of a million dollars or much much more.159 Prosecutors gained political traction and strength beginning with the ‘tough-on-crime’ Nixon-era, where the legal and law enforcement systems first became afraid of citizens. This fear became an election theme to reassure society that the candidate is “strong” and worried about citizen safety. And it worked. Crime rates are now down all over the country. At first, a politically expedient sound-byte, fear & safety grew institutionally because immense amounts of federal dollars were dumped on prosecutors and law enforcement. Attorneys were making not only money, but political brownie points from prosecutions and locking up an increasing numbers of citizens. States revenues became addicted to federal funding for locking up citizens. Ironically at a time when citizens were safer than ever before, federal grants were funding new prison construction. Ambitious prosecutors became addicted to the ego and power of convictions — as the road to higher office. As their personal ambitions grew, courts and prosecutors manipulated together with law enforcement to psychologically overwhelm defendants — innocent and guilty alike — to give up. We have prisons crowded with people who got pressured to plea bargain and gave up. Prosecution numbers were perceived as justifying abandonment of the moral implications of getting convictions this way. They never perceived it as legal violence because of the strong social culture that shifted to an elite collective thinking that prosecutors, and judges and law enforcement were all in this together — all ‘fighting crime’ generically — not individually. So winning by intimidation became an us-against- them group-think. The dumb blokes who probably deserved it — if not for this crime, for another — against the crime-fighting team. Prosecutors and judges work together to force and justify plea deals, while they avoid seeing the immense social harm and injustice they perpetrate. Prosecutors aren’t the only beneficiary a plea bargain. A plea avoids the cost of going to trial, while increasing a prosecutor’s political score. All it requires is intimidating defendants and defense lawyers by over-charging defendants with an excessive number of crimes. Initially, when arrested, I was charged with three felonies — all bogus and trumped up as an excuse for the sheriff to physically remove me from my home without a court order. At my arraignment, I demanded a jury trial (because felony charges warrant a jury trial), but shortly afterwards, I received a phone call that the charges were dropped to misdemeanors (which do not get jury trials.) By the time the so-called trial date rolled around (I never received any paperwork) I got another phone call saying my file was lost, and no trial was scheduled. That was the last I heard of it. Or so I thought. Defense Lawyers go along with this sham because there are hidden benefits in the system for them to cooperate, and hidden deterrents if they do not. They collect a flat fee either way. By the 1980s, ambitious prosecutors began racking

157 Sentencing issues are in Chapter Seven Tricks After Trial. 158 The process of bullying and taking advantage of weaker and weakened members of society to coerce plea deals appears in thousands of cases of handicapped, autistic, low-IQ, uneducated, children, and people weakened by fear, thirst, lack of sleep, police harassment, badgering and brutality. I know of several ‘normal’ parents who succumbed to psychological stress and uncertainty to accept pleas although innocent. 159 My last PCC trial, the prosecution bill alone was millions charged to me.

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up high statistics for convictions based on plea deals. The social cost of allowing prosecutors to bully convictions is that there are enormous numbers of innocent people locked up, and even more incarcerated for nominal offenses that a century ago were handled locally or through medical treatment.160 It is a double state win for prosecutors to plea bargain a conviction, so being political animals, they “have no losses and can boast of extremely high conviction rates.”161 Even when they have shabby investigative techniques, major holes in the prosecution, and little chance of winning at trial.

WAIVERS One judge refused to accept the defendant’s plea — and I was shocked because this appears to be rare. Federal District Court Judge John Kane determined the defendant should go to trial because his plea-deal required him to waive his right to appeal, and that blanket waiver of trial/constitutional rights, said the judge unbalanced the constitutional validity of all convictions. Kane recognized the coercive element, where the plea bargain is one-sided: prosecutors “overcharge defendants with more serious crimes than what actually occurred” forcing defendants to “crapshoot” a longer, not bonafide crime or the guilty plea in exchange for a lighter sentence. Over 2/3 of federal plea deals include this kind of waiver, and the appearance is that no one is policing whether defendants are being forced to waive appeal rights even in the situation of prosecutorial misconduct, inadequate advice of counsel, or other appeal-able defects that could overturn a verdict. An attorney/prosecutor putting their interest above that of the defendant. So attorneys involved in those kinds of cases are putting their interest/protection over that of the defendant’s constitutional rights to trial and appeal on the crime involved — not the greater/multiplied/overlapping overcharges prosecutors are now practicing. That is the proper charge of attorney ethical misconduct. This is a predatory system. Unworthy and shameful as a state practice for a great country.

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RELATIONSHIP TO SENTENCING SCHEMES — FEDERAL AND STATE

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In the federal system, there are two types of plea bargains — an advisory one which the judge is not required to accept the prosecutor’s deal, and a mandatory one — under federal sentencing guidelines. State and federal sentencing practices are covered in Tricks After Trial. But national public policies on sentencing contribute to the excessive charging and potential prison time that creates the fear that causes innocent defendants to waive trial rights. The psychological pressure is untold and plays on every element of our social stratum, but in particular on those with fewer intellectual and educational resources. Coerced pleas, given the much greater state resources, prosecutor abuse records, and court prejudice, are fundamentally unfair. With all criminal defendants now taking plea bargain deals, it is apparent that innocent people are being coerced into pleading guilty by an unbalance in the system of state pressure.

THE DOCTRINE OF RELATIVE FILTH The founder of the Josephson Ethics Institute162 coined the doctrine of relative filth that we referenced in Chapter 3, §33. Here’s another of his axioms — “If I’m not acting as badly as you, then what I’m doing is okay.”163

Josephson trains and does institutional ethical assessments and training. His understanding is that legal training institutes (such as ALI164) teach ethics from a perspective representative of the institution. I agree. Almost no one in 160 Karl Menninger, Whatever Became of Sin? Hawthorne Books, 1973, at 80. 161 Oakley, Evil Genes, Evolution and Machiavellianism, at p. 281. 162 See Josephson Institute, training courses in business ethics, public administration, policing, character education and sportsmanship. http:// josephsoninstitute.org 163 Richard Zitrin and Carol M. Langford, The Moral Compass of the American Lawyer, Ballentine, 1999. 164 American Law Institute claims to be an ‘independent’ organization that trains judges and does research and reporting for courts and judges.

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government is taking a stand for the legitimate American rights being coerced away systematically in the justice system. This means it is not focused on the people served by the institution of the courts. This makes the court’s internal ethics compromised. Here’s the other law industry oxymoron — If I am lying, if you know I am lying, if I know that you know that I am lying, does that make it true?

Along the way, America judges who traded their senses and moral values for bar solidarity, also lost virtues — like compassion, tolerance forbearance, and even sense of humor. Because the court industry is so afraid ordinary citizens, and are trapped into the brotherhood, judges have substituted the authority of the institution for the authority behind the government. This switch leaves behind the basic dignity that comes from a group of American founding principles. These principles are largely not to be found in law, and have been modernly replaced by new judge rules, misguided legislative policies, law doctrines, and governmental bureaucratic practices165 that work for the betterment and success of the institution. Forbearance is a unique American Christian concept that goes to the discharge of our individual duty back to our Creator. It means control of oneself when provoked, patience, the discipline of holding back with indulgence toward offenders and enemies. It may be by nature or by circumstance. The degree of forbearance used in the spectrum of life, parenting, justice can be expressed in degrees or stages: the first is clement (aka clemency), then merciful, then lenient, then indulgent. There is a loss of forbearance in the American justice system overall, but in the juvenile justice system in particular, means also a lack of understanding overall about the teenage brain and its development. Neuroscience and normal teenage brain development. Teen brains are not defective brains, despite judicial treatment that treats teens not only inconsistently, but often cruelly, as little adults, or abnormal children, without bothering to understand the “evolutionary process of growing up.” Groundbreaking research in the last decade shows this view is wrong. The juvenile brain is not defective, and it is not a half-baked adult brain either. “It has been forged by evolution to function differently from that of a child or an adult.” “A mismatch in the maturation of brain networks leaves adolescents open to risky behavior, but it also allows for leaps in cognition and adaptability.”166 Unfortunately, judges haven’t caught up with developments in science, and increasingly judges have moved the pendulum on juvenile case handling and sentencing in the harshest possible adult direction.167 Overall contemporary judges reflect fear and toughness in court by treating juveniles as flawed mini-adults. Remember, also, basic individual morality is not cultivated or appreciated within this system. With the change of direction to harshness in prosecution, the judge role as a fulcrum and balance for justice, seems to have swung the wrong way — because judges and prosecutors reflect authority that acts harshly using older social models designed for vengeance and revenge. The science of deterrence and causal effect have not supported the rationale for this kind of treatment. Without earlier safeguards of religious virtues (including forbearance) this old model routinely delivers harsh adult punishment inappropriate for juveniles. Given the overall model, cost, and atmosphere of fear, juveniles have a far less a chance of getting through even normal vagrancies of the adolescent development stage. Getting arrested begins a law process far out of proportion to the offense or family’s resources, affecting young lives disproportionately for the

Josephson’s conclusion is consistent with my experience and research. ALI is a shadow organization similar to the American Judicature Society and American Bar Association that focus on getting and keeping members into judicial office and strengthening the political power of judges. 165 There is an enormous body of Administrative Court practices that operate outside Constitutional court law boundaries. They grew up alongside the modern regulatory state in the 1980s, and haven’t stopped expanding into areas of national security — that infiltrate every aspect of individual citizen lives. It’s analogous to a cancer, invisibly spreading through the body of our social system, in the name of law that is touted to deliver us from evil. 166 Scientific American Volume 312, Issue 6. 167 This is especially egregious in dealing with juvenile sex offenders, in a court system that treats children as miniature pedophiles, with misguided treatment programs and state sex registries that misguidedly brand juveniles without any actual scientific correlation to public safety. And without an adequate understanding of juvenile developmental behavior. In charging, sentencing, choice of forum, the science doesn’t support the prosecutor/ judge handling and treatment as bonafide sexual deviancy. See for example, Kate Wheeling, Pacific Standard Politics and Law, Are We Properly Dealing with Young Sex Offenders?

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rest of their lives. Juveniles also are pressured to plea-bargain, often in the adult system. The U.S. now has the highest number of incarcerated citizens on earth.

It is the shame of a collective national conscience to unfairly incarcerate so many citizens, in a country that claims its citizens to be the freest people on earth. This deliberate abstention by judges from the practice of forbearance comes with a high social cost, for adults, but especially for juveniles.

As a social policy, locking up innocent and sometimes guilty but productive people (juvenile or adult) for long periods of time, destroys family strength and produces no product or social value. Mercy is not a condescending act of social weakness, but the legal system avoids mercy and forbearance like a deadly plague. Locking up people feeds the growth of the legal system168 and produces powerful legal statistics and figures. Increasingly it profits new industries — the private prison buildings, staffing, juvenile lock-up, phones, video-visits, clothing, food, and commissary sales, are all hung out for private exploitation for profits of those incarcerated and their families. There is a greed-exploitation force behind the lock-up mentality of plea and sentencing policies at court.

KIDS ON FIRE Another consequence is the replacement of school and daddy discipline with state criminal systems for juveniles. What was a school disciplinary issue handled by the principal and parents in the 1950s, has become years of incarceration of our children by the mid-1980s.

CHAPTER

“You think that little spoilt rich boy ain’t going to jail?” the black Sacramento woman court official taunted the white child’s mother at trial as she stepped off the witness stand. It was a case of ‘criminal’ lighting matches to entertain his classmates when the teacher was out of the classroom. Thirty years of difference —

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1960:

Child was disciplined by the principal and sent to detention.169

1970:

Child was picked up by the police and returned to his parents.170

1986: Child was charged with arson, and sentenced (by the above judge) to three years of juvenile detention at a state facility.171 His Parents were fined, ordered to pay a million dollars in restitution plus the cost of their child’s three-year incarceration, plus all legal fees and costs — hundreds of thousands of dollars to the justice system. Parents are faced with choosing between costs of paying for college or juvenile court or much worse. The legal fees for a child ensnared in a juvenile court proceeding can be as astronomical as adult court, and children are routinely denied counsel in 45% or more of juvenile cases. This is estimated to be 60,000 kids in 2014. Being unrepresented can cause long-lasting life altering negative effects from detention or probation. Heck, that also happens when the juvenile represented by counsel, as this is a judge abuse problem. This includes refugee and immigration cases involving children

168 I am aware of the social value and need to lock up dangerous people, but this example also refers to the tens of thousands of innocent people who plea bargain to avoid the inherent inequality in a trial. 169 Kevin Leman, The Birth Order Book: Why You Are the Way You Are. MJF Books, (1985). 170 My own two pre-teen brothers were spanked by my Dad and then grounded. They were showing off their new bowling pin cigarette lighters (secretly acquired) when they inadvertently set the Dayton Country Club tennis court on fire. The police returned them home to Dad. 171 Sacramento juvenile court docket.

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as young as five years old — taken to court without a lawyer.172 “Children often face the full weight of the criminal justice system without the protection of a defense attorney.”173 In a roughly similar case on the other coast, one of the deadliest fires ever for New York City (two months before the 9/11 attack on the twin towers) was on Father’s Day, June 17, 2001. A Queens hardware store fire killed three firefighters and injured dozens of others. Two boys, 13 and 15, were horsing around and caused the blaze. The boys were hoping to spray-paint a tag on a nearby church, and were searching in the alley behind the hardware store for a can of spray-paint, when one knocked over an open gas can. The liquid seeped into the store basement, meandered over to the water heater, where it ignited. Despite horrific deaths, injuries and building damage, the boys were not charged. Various people involved believed there was no criminal intent and expressed relief — I’m glad. I don’t think that the were responsible in any way and don’t think that kind of evil can exist in anyone’s heart — certainly not teenagers with time on their hands.174 Part mischief, part happenstance, part bad luck is how one burn victim said it. This (humane) non-charging event appears to be an aberration in modern law enforcement practices, where the opposite — harsh over-charging is the rule of the prosecutors’ day. When I was a child, the national war on drugs and citizens had not yet commenced, and tuff referred to tires, not crime. In 1967, the U.S. Supreme Court ruled that juveniles were entitled to due process 175 after Gerald Gault had been sentenced to juvenile lockup for the rest of his minority — for making a lewd prank telephone call to Mrs. Cook, his neighbor in Gila County, Arizona. Gault actually said the offending phone call was made without his knowledge by his friend, Ron Lewis. When he heard Lewis talking on his phone, Gerald took the phone away from his friend, didn’t say a word, and hung it up and made Lewis leave his house. Gault was picked up at school and incarcerated in the juvenile detention center without anyone informing his parents. There was no legal notice of his trial, he was kept in the detention home and denied almost every possible fundamental right in juvenile court — including a lawyer, knowledge of the charges, and opportunity to present a defense. If charged as an adult, it would have been a misdemeanor, with a fine from $5 to $50 dollars and a maximum incarceration of 2 months. Here, Gault was sentenced effectively to 6 years, as he was 15 years old, and Judge McGhee sentenced him beyond — to age 21. Justice Abe Fortas wrote the court opinion reversing this injustice. Fortas was a champion of children’s rights.

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§ KUDOS176

On the topic of children and judges, a segment that belongs in this chapter but has no natural spot in this list of horribles — is a good judge award. I should give more of these, although my collection for years has been about the bad things judges do. This one is stunning and courageous. When I came across it, I found it breathtaking in its simplicity.177 There are two Boston area female judges who I found to be quietly and remarkably courageous in job performance under pressure. The first is Massachusetts Superior Court Judge Constance M. Sweeney.

172 Wendy Young, President Kids in Need of Defense (“KIND” Colorado Chapter). 173 Molly Knefel, Why are Kids Being Tried in Kangaroo Courts? Juvenile courts across the country deny young defendants the constitutional right to an attorney, see the free online global news summary service — Newsvandal, Story Rundown, 5-14-14; also http://www.rollingstone.com/politics/news/ why-are-kids-being-tried-in-kangaroo-courts-20140516 174 Fire company Lieutenant Brendan Manning, who was seriously injured in the fire. As reported by Sarah Kershaw, No Charges for Boys Whose Acts Led to Blaze Fatal to Firefighters, NYT, A19, July 18, 2001. 175 In re Gault, 387 U.S. 1 (1967). 176 Praise and honor given for achievement. 177 Theo Emery, Judge Rules Videotapes Must Be Released With Transcripts, Gloucester Daily Times, July 18, 2002.

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I lived for time on the ocean at Gloucester, Massachusetts — a 300 year old fishing village north of Boston. When a Russian trawler sideswiped a local fishing boat and killed the crew, I went to the Fisherman’s Wives Parade for a dedication and memorial. Cardinal Bernie Law came in his red cardinal robes, emerging from a long stretch limousine with Teddy Kennedy. That’s it. A pompous limousine for an arrogant little man bedecked with his robes of office, a man who for decades stonewalled investigation of hundreds of cases of child sexual abuse by priests working under his supervision at the Archdiocese of Boston. The church abuse appears to have gone on centuries, and but for Judge Sweeney and her order for the release of deposition videotapes, transcripts and discovery documents — she changed history. Promptly. No more excuses. Her simple courageous ruling ordering one of the highest ranking officers of the Catholic Church to comply with discovery — simply blew the doors off a national conspiracy and a centuries-old child abuse travesty. It also established that Church Law is not an alternate substitute for criminal statutes. That is a point not-yet-recognized for judge-crime. Notably, the practice of the Roman Catholic Church was to evade criminal charges and criminal courts for Church Insiders, much the same way all judges evade criminal charges and criminal discipline of judges. The Judicial Conduct Committee system of discipline (an alternative, industry parallel-universe system) simply avoids actual discipline and almost all criminal charging and punishment, by keeping the messes ‘in house.’ I suspect that few people understand justice operates under two-separate systems. The public tier is for citizens. A second secret tier exists internally for Court Insiders, who are diverted away from the public system, but no one recognizes that. So justice for insiders operates completely apart from the public process that ordinaries are subjected to. Two tiers of justice in America.

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The favored and the damned

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Wealth does provide alternative sentencing and lighter sentences, and most of all, helps the wealthy and connected avoid crime, avoid arrest, avoid trial and avoid jail and prison. If those wealthy are court insiders, they also may avoid the public justice system entirely. If forced into the public justice system, they experience leniency and favors, not generally available to the rest of citizens.

FAVORS FOR THE HOME TEAM Favors in the legal system include making problems go away, so some don’t have to stand in line or do time like the rest of America. The ethics chapter has examples of judges fixing tickets and helping cases disappear. But the simple fact is that we won’t usually hear about the number of times a judge is stopped and the ticketing officer recognizes him and does a pass. Occasionally, we hear about celebrities, but judges are expected to behave better than average citizens and avoid situations where they might have to come to court — such as drunken driving or speeding tickets or selling and smoking marijuana. It’s supposed to be part of the basic judge public image.

EXAMPLE ONE. SUMMARY JUDGMENT Example One. Summary Judgment is another way to help someone by dismissing a case before it is brought to trial. Sometimes, cases just aren’t well brought, and the court is permitted to dismiss an issue, or a charge, or the whole case before trial, with a tool that has various insider names. One is called summary process. It’s where the court record contains enough information to know one side is fatally deficient. It is also an opportunity for judicial abuse. Judges claim summary dismissals are based in proven law without need for testimony, presentation of evidence, or even a hearing. The federal Whistleblower Federal Protection Act provides relief for federal employees who report wrongdoing at work, and since its passage has been subject to administrative whittling of rights of whistleblowers.

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The Merit System Protection Board has administrative judges (political appointments) — seeking the power to dismiss whistleblower claims by summary judgment — without hearing.178 This political potato-head board simply doesn’t warrant public trust that politically-appointed judges will not misuse their power to dismiss those pesky whistleblower cases (for those who are lucky enough, in my book, to fall under federal whistleblower protection.) The potential for abuse is great in summary judgment outcomes. Whether for alleged contempt of court (as a punishment) or discretionary dismissal of charges, (as a favor) this process of summarily skipping over the legal elements, to bypass the rule of law, is an imperial act which warrants strenuous deconstruction and review.

EXAMPLE TWO. PARIS HILTON JUSTICE FOR ALL The world was not surprised when Paris Hilton was arrested and released for a DUI in 2006 and later charged for cocaine and marijuana; but eventually, the celebrity bad girl again came the attention of one judge, who revoked probation and sentenced her to 45 days of real service. The LA sheriff stepped in to ‘revoke’ this sentence with a medical excuse and home arrest, but to his credit, Judge Michael T. Sauer would have none of it, and twice again ordered Hilton back to jail — notwithstanding melt-downs, screaming crying tantrums, a fan club petition, an appeal to Governor Schwarzenegger for a pardon. She did the time. No work furlough. No work release. No electronic monitoring.179 When I first wrote this, Paris was getting none of the normal treatment, but kudos to Judge Sauer, who alone seem unimpressed with celebrity money and focused on doing his job.

EXAMPLE THREE. HOME CONFINEMENT As it turns out, this county-jail-administrative release is a problem all over the country. When Ruggles, a friend of the New Hampshire Merrimack County Attorney Michael Johnson, was put in jail by Judge Arthur Robbins for brawling, Michael got his friend (the jail administrator) to give Ruggles an electronic-bracelet-home-confinement instead. Judge Robbins, like Judge Sauer, rescinded the release and scheduled a hearing on why Ruggles was released without court approval. He ordered the jail administrator and her assistant to show up for a possible contempt hearing. Apparently county officials have been passing out alternative sentencing for a long time — at loggerheads with various judges who assert their authority over sentencing.

EXAMPLE FOUR. SOMEONE ELSE GETS THE TICKET My ex used to have me to drive whenever we went places. He sorely missed having a driver, and that was probably his most missed-perk from his time in the U.S. Congress. Afterwards, someone else always had to drive him — the chief of staff, the wife, the associate attorney, the girlfriend. His reasoning? If we get stopped, he wouldn’t be the one getting a ticket and it wouldn’t be on his record. He especially liked the perks that came with our country’s highest offices — whether judicial or political. Sometimes to my horror, he tried to pass out Congressional ballpoint pens with his signature on the side, in lieu of tipping service workers.

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§

The abuses of pretrial discovery are legendary. Misuse of the rules of procedure have turned the discovery process into “a sporting match” and “an endurance contest”180 for the wealthy and the insiders. Discovery abuse is often uncorrected or not appropriately sanctioned, and it is a way for a judge to influence before trial who gets prepared and who doesn’t. 178 Stephen M. Kohn, National Whistleblower Center, September 20, 2012, www.Whistleblowers.org. 179 Hilton Headed Back to Jail for Full Sentence, Abcnews.go.com. December 27, 2010. 180 See Laurens Walker “Perfecting Federal Civil Rules: a Proposal for Restricted Field Experiments” Columbia Law Review, Vol. 95:1897; see also A Proposal for Field Experiments, Law and Contemporary Problems, Vol. 51, No. 3, at 74 (1988) on the vagrancies and problems with attempting scientific testing on judicial outcomes, based on difficulties with flawed and problematic research criteria.

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There are nine examples, but the list is endless. I recommend a treatise on Stonewalling Discovery, The result is the inability of the court to control or prevent discovery abuse in many cases. In fact, the court’s absence of action becomes the abuse. There are two sneaky classes of abuses in production-of-documents-in-discovery and they can be distinguished by time and quantity. 1. A party who takes a long time to produce a small amount of records — reluctantly and in response to multiple requests — is like a Soviet style system. It forces an opponent to work hard for every scrap of discovery received. 2. On the other side, the American style is to dump avalanches of documents so important papers and data are hidden in the open and may never be found. It forces an opponent to wade through enormous quantities of material, often provided late with too-short a time span and under inconvenient work conditions and at unnecessary expense. 3. In the meantime, a judge may use the really stupid “weight of the paper” trick to prematurely terminating a party’s right to discovery — while not addressing stonewalling. An element of stonewalling is its inherent unfairness — that those in the dark are not able to obtain necessary material to prepare their case. Discovery has become an elaborate game. A procrastinator extends the trial and wears down disadvantaged or weaker opponents. I can recognize the boiler-plate pages spewed out from a insurance-company word processor, asking for an oppressive and invasive amount of unrelated information — an popular ol’boy game. The rule of discovery is it should be proportional to the needs of the case. So judges who permit and facilitate highly intrusive overreaching discovery aren’t doing their job fairly, if at all.

CHAPTER

We know quite a bit about stonewalling. First we know that it is peculiarly a ‘male thing to do….Second, it is associated with high levels of negativity in the interaction; Third, it is related to physiological arousal.”181

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So men get off on stonewalling, just as I suspect many litigators (and judges) get a rise in court from bullying. There’s a lot of testosterone floating around courtrooms. My premise is that the legal battering that occurs so often in American divorce courts is really a more sophisticated form of domestic violence. So lawyers get off on it, spouses wants to punish the other, and custody battles ensue when a manipulator threaten a spouse using the system.182 Nationally recognized psychologist Dr. Karen Winner calls the mental and financial abuse from the litigation process, Legal Abuse Syndrome.183

STONEWALLING AMERICAN STYLE In the height of the cold war era, the differences between American and Soviet society were dramatic. Americans freely broadcast information about every aspect of society, so much that the glut of information available became overwhelming. One tactic used by sophisticated litigators in discovery184 is to provide so much documentation that the other side is overwhelmed with paper and data. It runs up the trial costs for the other side, and if uncontrolled by the judge, becomes burdensome. The paper-dump may or may not be organized and provided in a manner that is readily usable. Hard-ball litigation tactics frequently dump massive amounts of material — with really critical documents removed. It becomes a tedious, expensive, and time-consuming hunt for a needle in a haystack, especially when the needle has been removed from the stack.

181 John Mordechai Gottman, What Predicts Divorce, the Relationship between Marital Process and Marital Outcomes, University of Washington, Lawrence Erlbaum Associates Publishers, 1994. 182 This theme of legal spousal battering has been explored at the annual BatteredMothersCustodyConference.org. 183 Dr. Huffer, wrote Legal Abuse Syndrome, a stunning threshold book on the emotional and psychological violence of litigation. (Fulkort Press, 1995). 184 The exchange of information between parties to prepare a case for trial. Governed by formal rules, and proportionate to the needs of the case.

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For example, in one case, I asked for five years of bank records from my old law firm. The stonewalling tactics were (a) delay for months or years providing records. (b) providing only copies of one side of checks — and for an extra expensive fee. But I needed the endorsement side of a few checks to prove intentional wrongdoing. (c) providing thousands of records — but the 2, 5, or 10 critical checks (and the corresponding registers) were missing. (d) Records were produced in a haphazard order, (requiring hundreds of hours or more to sort, discover, and the catalogue the hidden or withheld documents) so I could prepare a itemized motion — for a hearing asking the judge to order the missing docs produced. 750 pounds of paper in a color photo is enough for anyone. This was Judge Coffey’s ruling in response to my motion to produce the smoking-gun missing records. For three months, Chuck quietly added and removed boxes of discovery and individual records from the 25 boxes of records he had produced. Judge Coffey agreed with Chuck’s suggestion that I might “steal documents”185 out of his boxes of discovery (my old law office files), so she ordered Chuck’s discovery kept at Attorney Tarbell’s office — in an old house where the boxes had been hauled to a third floor non-air conditioned attic. This necessitated not only an advance appointment to search and catalogue documents, but hauling up and down two sets of narrow stairs to make copies. At hearing, I complained critical records were missing. The judge refused to accept my itemized list of missing documents as an exhibit, but she accepted an 8 by 10 color glossy photo of the closed boxes stacked on the floor as proof of Chuck’s compliance with discovery. Judge Coffey said 25 boxes of documents are enough for anyone. Plaintiff has complied with discovery and there will be no continuance (or further production). She gave new meaning to phrase ‘the weight of the evidence.’ Technically an attorney trick, this works only because the judge enhances along with the tactic.

STONEWALLING — SOVIET STYLE Stonewalling: being uncooperative, obstructive, or evasive in pre-trial production Classic stonewalling is the practice of refusing to cooperate on the surface — documents are not delivered, with or without excuses. In litigation, time is a tool for applying pressure and wining a case by unfair tactics. One side will run out of money, could die, and life moves on. Delay in the production of information means that the opposing party not only has to spend precious money and resources in attempting to obtain information, but that late produced information cannot be properly process and assimilated and analyzed to be effectively used or processed into trial exhibits, support, foundation for testimony. The side which can hold on to discovery the longest has a better chance of sabotaging the other side’s case. Judges permit stonewalling through a variety of litigator techniques.

1. CONFIDENTIALITY AGREEMENTS One technique is when one side insists on a confidentiality agreement as a means of limiting the other side’s use of information. In theory, confidentiality agreements may protect business secrets, but most agreements are for the convenience and privacy of only one side, and if that side is the side of power and money, the confidentiality agreement can be used two-fold: it is a means to avoid or delay production of information, and secondly, the production, when it occurs, can be incomplete, falsified, unreliable, and manipulated but the confidentiality agreement prevents the receiver from doing anything about it and from going to the press or other influential outsiders for exposure of wrongdoing. Confidentiality agreements are often favors granted by judges to insiders, and should be resisted and questioned and limited to the narrowest possible usage, if at all. Chuck’s new associates argued that I could not have Douglas & Douglas business records because they were protected now as the new firms’ “trade secrets.” What was funny was he took the

185 ‘Stealing the discovery documents’ is a classic ol’boy allegation I found was used to harass an opponent — especially women lawyers. Ol’ Attorney Arthur Nighswander (just before he went to stay at the nursing home) asked me when my boss is coming. (I went to the office in Laconia to examine discovery, which he also insisted had to remain in his office because I might steal documents. I complained about Arthur to Chuck, who of course copy-catted the insult in our divorce. I would cart over a heavy copying machine to Arthur’s office to make my own copies. Arthur asked the judge to order me to pay an attorney $175 hourly to sit and watch me go through the papers they produced. All gender harassment. Isn’t it time judges stopped this kind of institutional sexual harassment?

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draft document from a Wadleigh Starr contract case, and just parroted the language even though it was not relevant to a spouse-partner-dissolution case. Then he tried to apply ‘confidentiality’ to everything and everyone, including my staff, experts and lawyers — no one should be allowed to see anything created when I was the founding partner. It was such an unnecessary excess call for clearance and secrecy —

2. DISCOVERY TIMING TRICKS Run the Clock. Other kinds of compliant judge tricks is to sit back and tolerate stonewalling tactics. The pattern appears to be never have time for discovery compliance motions at hearing — but only for the non-insider party. The judge will be very harsh about making instant orders for a depo or two or three for the insider. Kind of a hop-to attitude to make the non-insider look evasive or obstreperous. But it’s one sided, and I see a kind of play-acting by the judge. Puffed up anger at one, while just forgetting or running out of time for the other side’s motions on mirror issues.

Financial punishment for trial delay and anticipatory contempt

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There is a rather analysis, involving stonewalled discovery that Chuck was uncooperative in turning over (financial and other data about the six years of D&D operation.) JNad, without dealing the discovery blockades I encountered, cut short any formal rule discovery process by setting a premature trial date five months out, incorporating orders of anticipatory contempt for any delay in the trial date. That was the entire ‘notice of trial’ I received. This order spills over into three chapters, including the financial chapter, as the judge wrote that any delay of trial for any reason whatsoever, would create an obligation for the wife to repay any spousal support received after the trial date, out of any property division awarded. It was improperly mixing apples and oranges — two separate and distinct categories at law, improperly smooshed together and whirled into a law smoothie. The two other procedural irregularities —

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1. Setting a highly rushed trial date (before I received any discovery) — remember also, my law partnership was taken by an ambush — hostile takeover, where one day I was just locked out of my main office, with all the administrative records. JNad had intended I have no discovery process because his instructions to his BFF were — to collect ‘discovery’ information by floating back and forth between our now separate firms, and take our records needed for ‘discovery’ and valuation. I threw a monkeywrench in that private discovery scheme by insisting on traveling back to Malcolm’s office to view his ‘discovery’, which he was reluctant to have me do. Good reason, because JNad’s ‘bright idea’ to avoid formal discovery, was of course another scheme that produced nothing of value to me or my experts in determining the FMV and income stream of formerly marital assets. In the end, the court found all the assets were virtually worthless, and awarded them to Chuck as marital property division, so I can see why shortcuts were considered judicial efficiency. Everyone but me already understood how this case was going to turn out. 2. The second irregularity in procedure was the idea of issuing a sanction for anticipatory contempt. The future ‘fine’ for ‘any delay’ regardless of reason, the responsible party, circumstances — was another illegitimate means to circumvent my completion of formal discovery — especially in the face of experienced litigator stonewalling. Support is support — not an asset. It is legally based on two statutory factors — demonstration of need and ability to pay. Support doesn’t get terminated or offset, as long as those two conditions are established in court. And it doesn’t get terminated prospectively without notice and hearing after a material change of circumstances. I was receiving no support, but Chuck was ordered to pay the mortgage on our house. JNad wanted to accommodate and repay his friend, by short-cutting the divorce process. Ergo, another of JNad’s illegal imaginative orders. See also the Chapter Four discussion. 3. That I would be stonewalled in formal discovery was pretty much a given. One side had all the documents, computers, bank records, tax returns, formal partnership documents, and evidence. The other side was ambushed and locked out. JNad first fashioned an end run around the Rules of Civil Procedure using Malcolm, and after that, he invented this premature trial trick. These are not mere errors in judging, or ignorance of rule and statutory procedures and rights. There’s not just abuse of discretion and avoidance of Rules, but a persistent pattern of cronyism in here somewhere. The second half is to deal with the non-Insiders’ discovery enforcement problems so late in the litigation process, that even when it is finally produced, it is too late to be meaningful. One example, Judge Coffey always failed to hear any motions about my team getting the Douglas & Douglas Law firm back-up accounting data — material backed up on external tapes about client/business accounts receivables and billing. It took a year. In the meantime, he had the data for his use — I just couldn’t get a copy. It was one sided, but the judge appeared unable to grasp the concept that he

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had all the original data, and was giving me a CD-ROM disc (and copying bill for $1,700). It was not a big project to make copies. She permitted endless squabbles about arrangements for the copying procedure and the costs. In the meantime, she ordered them turned over to the GAL/BFF, who delayed making arrangements for me to view for six more months. In the meantime, the other side had the data — but I couldn’t get it to my experts. On the eve of trial, the data was finally turned over (encrypted!) It takes time to process and evaluate data, so the run the clock here, was a series of discretionary rulings, passing favor-rulings in one direction. Proving a compliant judge isn’t easy because courts don’t want to see. Make the record when you can, “your Honor, this is the 4th hearing where you heard X’s discovery issues, but each time, you ran out of time to hear my one discovery motion that has been pending for 17 months.” You will have to create a record for the appeals court, so put the objection in context.

3. STOP THE CLOCK All judge tricks are creative and variable — but here’s the flip side of the previous judge trick — delay the trial.186 Interesting that on the east coast — a preferred trial trick is to rush to trial, whereas out here in the southwest, man Yana or slow down is the standard. Trials take forever — years — and not a whole lot happens except the lawyers bill the heck out of their clients. It’s kind of a college-scholarship program where the attorney’s children grow up and go to college on the fees charged by their fathers. A very old judge allowed missed hearings, multiple hearing continuances, and missed depositions to go unnoticed. One attorney — seeking an extension — had missed every court-ordered pre-trial filing deadline. He failed to file any trial list of witnesses, experts, reports or evidence. He failed to return any discovery. He failed to send any discovery. He missed other judge-ordered dates, three hearings and his own requested deposition. With the trial set two months out (in January) as far as I was concerned, he could miss everything. December rolled around and the judge sua sponte said he was canceling the trial — postponing it indefinitely. He then extended all the previously established deadlines, so two opposing attorneys could catch up with their missed homework. Insider favors. I have come to resent when the judge becomes more like a mentor to my opponents, repeatedly initiating saving suggestions and extensions (from their own mess-ups) — while ignoring the effect and burden creates to the pro se side. It was obvious which way this case was trending, so I worked hard and got the judge removed. In fact, he resigned from the bench less than a week before the next hearing. Reassignment was, once again, along the same ugly water-carrier pattern, and I took it as a signal that my book observations are not only spot-on, but are practiced in different courts all over the country.

4. FOIA STONEWALLING The Pentagon, the IRS, the EPA — all federal agencies that classically avoid oversight and transparency by stonewalling freedom of information act requests. The Department of Homeland Security released an annual report showing FOIA stonewalling and the backlog in processing requests is increasing: “In 2012, there were 28,553 unanswered requests; in 2013, 53,598.”187

There are nine reasons Homeland Security agencies cite to not comply with FOIA, but “the most used exemption” is: 7(C) law enforcement records that if released would constitute an invasion of personal privacy or 7(E) law enforcement records that if released would disclose law enforcement techniques or procedures. This is disingenuous because the DHS is not a law enforcement agency.”

186 In some cases, I have seen the judge initiate both rush and delay tactics in the same case, depending on the need extra judicial help. Be alert. 187 Electronic Privacy Information Center; see EPIC.org. http://privacy.org/cgibin/mt/mt-tb.cgi/2654

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5. DIVIDE AND CONQUER One of the most fundamental traps in litigation is to carve up the case into tiny discrete issues and tackle each one individually. Like chess, it is a strategy. Judges grant early insider requests, (usually procedural and made orally without advance notice) knowing the special pre-trial rulings appear innocuous but are later used to prevent the opposing side from presenting material relevant aspects of their case, or to punish or otherwise cause unfair harm. In other words, the judicial favors are a set-up. I call them ‘pretend’ rules, because they have no valid precedent, and they avoid a rule of law. Often, they suggest precedent and rule of law, but are inaccurately applied out of context. Initially, establishing early discovery or evidentiary limits may sound like a reasonable problem-solving order. But it doesn’t follow the rules of discovery or evidence. However, judges can slice and dice a thousand cuts that deprive the opposing party of essential defenses and opportunity to present their case into the record. The Goose or Gander ruling example. In the opening stages of a case, an insider will work to develop limitations, closure, and narrowing of issues, in order to prevent the opposing party from presenting all necessary issues, rights and remedies, no matter how relevant. A Judge Coffey example was — an order she made at a hearing on support. She fashioned a ruling disallowing a CPA/tax expert from testifying about a damaging criminal issue — I called an expert. The judge called a sidebar — asking off record for a summary of the expert testimony188 about Chuck’s income tax records during our marriage. It went to support, the valuation of the business, and impeachment. The judge carved the case into two distinct time blocks — evidence before and evidence after filing the libel for divorce. Why?

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She said, ‘I am only allowing accounting records going back to the date the divorce libel was filed. It’s just not relevant and we could be here all day.’ Well actually, the hearing was scheduled on this topic for a half-day. Does her oral ruling still sound okay? Actually the order is a protective one — creating anticipatory cover-up. And it is part of an outcome determinative pattern of biased ruling. (We cover that topic later.)

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HOMEWORK FOUR — UNFAIR JUDICIAL MANEUVERING SO LET’S DO A QUICK EXERCISE TO SHOW WHY THE RULING REPRESENTS UNFAIR JUDICIAL MANEUVERING. v Does it serve a legal purpose? The purpose of the hearing was to determine if the Ol’Goose could afford to pay support to a gander. All the other statutory elements for support had been previously established (months earlier), but the Ol’Goose claimed no money and that he could not afford to pay. So how he reported his earning during the marriage — why was that not relevant and a waste of time, as the judge indicated? v What was the potential political harm? An expert (an IRS special auditor/forensic CPA) was in court to present evidence on 6 years of underreported ol’boy earnings. He had unimpeachable credentials and a damaging report against Chuck. Since present income and earnings appeared to grossly under-reported his income, this expert evidence unquestionably would show a pattern of tax evasion — discrediting the current claim he was unable to pay. v Weigh the purpose against the unstated consequences. By excluding all financial information prior to the filing date, Judge Coffey’s arbitrary ruling avoided the legal purpose for the

188 My CPA expert was a former IRS-forensic analyst, and he was prepared to testify orally and with a written report about my husband’s tax filings. Chuck prepared tax returns for each of us during our marriage. I never saw those, and Chuck kept our records and paperwork. He also insisted on sole oversight of client bills and records (for us as a couple, and for the office.) I worked 80 hours a week or more, and brought in $300–400 thousand a year in gross revenue, and didn’t take a salary. Our overhead was about a million a year, and we had 28 employees.

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hearing; avoided damaging impeachment questions about income tax evasion;189 excluded the issue for appeal; and avoided a mandatory ethics reporting situation (for herself.) v What other factors applied? There were three: 1.

The original in-chambers hearing had no financial affidavits or records. (Nevertheless, JNad had made crude orders for temporary support and final property division.) A month later, Chuck began plugging the springs and avoiding the oral support order.

2.

Also at the first hearing, JNad ruled I had no ownership interest in the D&D partnership, merely a marital interest. He ruled D&D was a sole proprietorship and would be sold to the successor group (despite objection.)

3.

The element at law — of need — had already been found, along with an unsubstantiated claim by Chuck about the second element at law — ability to pay. Chuck claimed he had no ability to pay.

The partnership was gone — replaced by the successor firm, however practically all assets and accounts of the former firm were subsumed into the successor firm.190 Earlier orders had been made unsubstantiated by financial affidavits or supporting documentation. (Also recall, Chuck sent me a blank affidavit. Judge Coffey accepted the original ex parte, and for two weeks kept it in her office, then ruled finding it truthful and accurate. This was notwithstanding mandatory rules of court that I be provided an advance copy — to prepare and to avoid fraud on the court.191 v What was the net effect? Although relevant, the ruling avoided exposing another (former) judge for criminal behavior, fraud and tax evasion. By analogy, Judge Coffey was covering her ears not to hear evidence that would have required her to act under court ethics rules. v Was it logical? There was no bonafide logic, fairness, or precedent for dividing evidence by pre and post filing dates. But the ruling gutted the substance and purpose of the expert’s testimony before he ever got on the stand. The logic escaped me at the time — it was part of a pattern of ruling that protected another Insider from a court record that would (or would not) support a crime. She was excluding all potential evidence of perjury, income tax evasion and fraud, so the court record would be clear of evidence. That’s why it was so important to the judges to get the impeachment exhibits I had entered into the court record, removed. Both JNad and Coffey seemed obsessed with clearing the court record of existing exhibits, and keeping out any other impeachment documents. That’s why there was so much drama about ‘trash’ (I didn’t understand the full implication at the time, but I was operating on gut instinct. I had done my homework and I knew my impeachment trash evidence was legally collected and it was bona-fide and reliable for impeachment purposes at trial. v Was it uniform? At later hearings, this special ruling limiting entry of evidence by pre and post filing time periods was ignored by the court, which freely admitted other pre-filing records. An ol’boy expert later testified about how he arrived at his zero FMV valuation of the multi-million dollar business192 without any of these loose-goose time limitations the judge invoked to keep my expert from testifying. 189 Income tax evasion is a criminal charge that federal law enforcement has successfully used in many circumstances to get convictions and prison terms for mafia, organized crime, and political corruption cases. Tax evasion charges stick when more blatant obvious felonies do not — even murder, assassinations, bribery are harder to tie down and convict, so the pattern throughout, of JNad and Judge Coffey protecting Chuck from making financial disclosures and producing discovery documents, and later preventing my IRS CPA expert from testifying — is a much more interconnected and protective pattern of judge-orders than I realized at the time each order was made. Cumulatively, the Judge prevented a court record from being made with supporting evidence. I tried repeatedly. Had that occurred, Judge Coffey would have incurred a judicial ethics duty to report — both to the state attorney conduct committee and to the IRS. By making ‘mistaken’ discretionary orders — to exclude expert testimony and documents at each juncture, she prevented making the record and triggering her duty to report — from coming into existence. 190 Even my few clients were later surreptitiously stalked — as successor firm assets. Reference to Chuck’s before-trial attempts to intervene in the Heimann divorce case, and his post-trial attachment of my law office bank accounts. 191 Details are in Chapter Four — financial tricks. 192 The Sneaky Judge Trick of finding a zero valuation for assets, while awarding them to the ol’boy is presented in the financial tricks chapter.

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In the heat of battle, this is the type of judge trick is not readily recognizable — during and immediately after a hearing. You will experience the uneasy feeling of being cheated, but you’re not quite sure how. This intuitive feeling will tip off the tricked party (or attorney) to study the record to get to the bottom of the trick. It’s a pattern of outcome determinative rulings — illegal, corrupted, and manipulated. But the whole story doesn’t present itself at the time. If you previously have done a moral examination of yourself, you will have to trust your gut for now.

To identify judicial bias through word-twisting, ask the following: Does the ruling apply only to one side? Does it protect one party, by sacrificing the rights of the other? Is there a new unique rule replacing an established fixed rule? Did the judge misuse judicial discretion in making a new rule? Is there unequal application of the new unique rule? Is it consistent throughout the case? Is the judge’s rationale for making a new rule illogical or frivolous? Where does the benefit flow?

Careful review of the record across all hearings and orders and cross-checking the judge’s rulings by subject matter on a spreadsheet with columns for each party, date, subject-matter, and ruling can help quantify judicial inconsistency, favoritism and bias.

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Creating a discretionary new rule on the fly — applied only to one party but not the other, or which is not enforced (at an appropriate time) against the other party — is a signal that lay people can learn to identify.

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Judges don’t expect you to catch it. They don’t catch it because they have lapsed into thinking that ordinary rules don’t really apply to them, and they are not really answerable for how they come to a decision. Sometimes, it’s laziness or arrogance. Other times, it’s an insensitivity about the lives of others. Still others, it’s the chemistry that comes with wielding the sword of authority. The ability to inflict harm on another comes with excitement and feelings of power that stimulates them. It goes to the drama referenced earlier. Denial. When pervasive, any of these kinds of judge abuse will alter the case outcome. The judge may be in denial. If you ask him, he will insist he is impartial. But the inherent prejudice (called “collegiality” between professionals) is actually the crime of abuse of office and obstruction of justice. Fear. A judge will be afraid if you name and logically identify any of these patterns of inconsistency and bias. When people become afraid they react (often badly). The nature of an authoritative personality when confronted with their own apparent wrongdoing is often fear or retaliation or both. So judges, when cornered with abusing logic and power, become afraid and then react. You are not making them mad, so much as they are afraid of being exposed as inauthentic — by you and deconstructed logic. Irreparable harm. But it is irreparable and sometimes untraceable harm that flows out of these biased judicial rulings. By preventing testimony, evidence, and documentation from being entered into the record, the judge inserts himself into the process, not as a judge, but as a participant. He/she now has a stake in the game. It taints the proceeding in a way that cannot be undone.

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Another example of the divide and conquer technique to keep out defense evidence193 of police or prosecutor misconduct: A judge grants greatly limiting orders early in the case, then later use the limitation to capriciously prevent relevant but incriminating evidence from being introduced at a later time. This sounds like classic criminal ‘fruit of the poisonous tree’ exclusion, except this becomes an illegitimate trick because the judge turns the concept inside-out! (Poison fruit is prosecutor evidence not allowed in. It’s not a civil case concept.) This is a bogus but legal sounding trick to prevent a defendant from utilizing relevant material evidence, as a defense tool, in matters of prosecutorial misconduct, police cover-up and state abuse of authority. Using legal phrases in the wrong context is definitely sneaky, and it is a trick pulled on defendants who lack the sophistication not to be impressed with the intimidating language being tossed around by insiders. It is bonechilling to be accused thusly. Other dangerous-sounding legal concepts that law bullies like to use against ‘lesser’ parties is “unclean hands” or “witness tampering.” Both attorneys and judges misuse these to threaten outsiders with all kinds of implied sanctions from money to lockup. They are often a complete misuse, but it sure sounds scary No one will stop to explain it to you — because courts arrogantly demand everyone use a lawyer or get left behind. Using a lawyer is probably an even lesser chance of exposing this kind of corruption, because defense lawyers are unwilling to risk professional retaliation by the judge.

EXAMPLE: JUDGES ROUTINELY NARROW THE FOCUS TO AVOID LOOKING AT THE WHOLE PICTURE In the impeachment trials of the state supreme court in New Hampshire, the special prosecutor first established limitations. He steered the legislators to subpoena discovery on only three court cases (over 12 years of allegations about improper judicial interference in case outcomes and cover-up.) Thereafter, the NH House investigation and Senate trial was strictly limited to only those three cases out of potentially hundreds of (criminal) judicial interference cases. In one case, Chief Judge Brock phoned a lower court judge to inform the presiding trial judge that his case involved the President of the State Senate, who was controlling/blocking the pending judge-pay-raise bill in Committee. This executive (political) decision194 to narrow the House impeachment investigation down to only three cases, evaded the overall pattern and evidence of widespread corruption and favoritism going back to the 1980s (involving a former U.S. Supreme Court justice.)195 Divide means limit. Limit means protect. Protect means evade. Divide to conquer is used to avoid judicial accountability.196

193 In criminal proceedings, exculpatory evidence has a legal connotation, as the U.S. Supreme Court in Brady found a fundamental duty for the state to produce all favorable evidence for/to the defense. Problem is, in civil matters, no such constitutional right is identified, although it certainly stands to reason that judges who keep out relevant favorable evidence in civil matters, such as the IRS-evasion example above, cross an ethical line, if not a moral and legal one. 194 This is the Bill Clinton impeachment model — which severely limits the focus of inquiry. It provides great latitude in excluding otherwise relevant evidence, thereby insuring a defendant is not impeached. It is notable that Hillary Rodham’s early lawyering work included staff attorney on the Nixon Impeachment Committee.

I believe it was proposed and promoted by the new Massachusetts Special Prosecutor, Attorney Joseph Steinfeld, (who the Gadfly and I had consulted with in Boston a year before.) Theo and I met with him for several hours, and I am confident he was already versed about the Insider corruption of the New Hampshire Courts. While he prosecuted the New Hampshire Supreme Court judges, (as a neighboring-state-Insider) he often was soft and deferential toward New Hampshire judges. Steinfeld also steered the ‘jury of legislators’ to establish a very high standard of proof — not the usual beyond a reasonable doubt or preponderance of the evidence. He urged clear and convincing, thereby establishing little chances of impeachment.

He could put on the show, send the message, but the rules and standards were soft even before the proceedings started. Select legislators pre-voted on what the rules would be — (there are no ‘established’ impeachment rules in the U.S.) So if you are in a state that is looking to impeach, it is in these pre-stages that the investigation and conviction will be doomed or not.

195 About 60 people tried to testify about biased court experiences but were precluded by the Chairman (who sometimes ridiculed and disparaged them for trying.) 196 The format for impeachment is the Achilles Heel in determining success or cover-up of the event. There are few impeachments in the history of America. The New Hampshire Impeachment hearings in the State House and Senate relied on a model proposed by Attorney Steinfield, a notable Massachusetts Democrat imported to be the special prosecutor. He reportedly used the President Clinton impeachment model. Testimony and evidence severely limited to only a mere three incidents (out of hundreds) over twelve years involving ‘insiders’, virtually ignoring a much larger body of evidence and witness of other similar abuses in potentially hundreds of ‘common’ cases. Under this ‘decision’ to severely limit the investigation, hundreds of alleged judicial abuse cases were ignored and never considered, thereby evading exposure of the pattern and practice.

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So if the judge tells you, “no, we’ll be here all day” as an excuse not to hear relevant material and impeachment testimony, ask if her reasoning is valid and unimpeachable?

6. GIVING UP DISCOVERY WITHOUT LETTING GO This trick involves a judge who sets capricious limits on receiving discovery from the other sides. It might be telling the ol’boy he can keep his production of discovery in his own office. It might involve requiring the Non-Insider to pay an attorney from Insider law firm an hourly rate to “baby-sit” the opposing party/attorney. They will claim that the noninsider team will steal documents or make other inferences of untrustworthiness, that the judge wink-winks at as she orders the payment. There are so many unnecessary delaying, insulting, and obstructive tactics. Plan ahead what you will do if you encounter this pattern. I always refuse to pay to have some lawyer watch me go through boxes of materials, but I allow one of their secretaries to sit in the room to watch me, (they read a magazine) which I refuse to pay for. When the other side insists I mark each document I want copied, and pay them to make the copies, I decline and either take my own copier or use the service. That ruse is they want to see what exhibits I am copying — saves them the effort of trying to figure out what is important. I would cart over a heavy copying machine and paper to make my own copies. Neiswander asked the judge to order me to pay an attorney $175 hourly rate to sit and watch me go through the papers they produced. Ol’boys would routinely do this …. and judges went along with these little Insider games.

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I came to believe in the rule of seven: a woman lawyer may have to work seven times harder and be seven times better than a male peer because of the gender discrimination against women in the legal profession. You have to learn which gender insults to take a stand on — and which ones to deflect or ignore or work around. They act like mean boys on a playground.197

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Resist this kind of name-calling innuendo — that you are somehow untrustworthy to look at original documents or have to pay extra go obtain necessary information. It’s happened to me twice in client cases, (plus Chuck incorporated this and every other gender/ol’boy game he could remember into our divorce proceeding.) Each time, it was some highranking ol’boy senior partner being insulting/baiting. One looked me up and down and told me I’d have to wait for the lawyer to show up before I could look at the boxes on the table. I said I was the lawyer, and he coolly said, “Oh, I thought you were a secretary.”198

I call these prick games, because they are gender-based insults designed to play with your mind. I never thought of it at the time, but now, decades later, I wish I had just studied him up and down and come-back with “you know your fly is open.” But I didn’t and struggled with the good girl breaking-the-glass-ceiling feelings that so many women in law had and still have to contend with.

The other half of this discovery imbalance is the judge will rule that the (Insider) party in possession is allowed to “keep” control over their documents, but I would have to release my boxes of documents to them. The inference is one side is trustworthy — the other outsider party is a thief or irresponsible with valuable legal production. It’s their game. Don’t spend time getting upset — just think of them as prehistoric cretins who probably can’t beat you on a level playing field. Someday, they’ll be dead, because some of them are old, and you’re not old. My experience was that Chuck produced about thirty boxes to his lawyer’s office. But then he would add or take records away without permission or record. So the documents might be there once, but he later removed some. I had to go to 197 There is an extraordinary history of women attorneys: Karen Berger Morello, The Invisible Bar: The Woman Lawyer in America: 1638 to the Present, Random House (1986) The author understands well what the gender bias in this paternalistic system translates into. Her book is timeless advice for women in law. 198 Ol’ Attorney Arthur Nighswander (just before he went to a nursing home)

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Tony Tarbell’s office to see those records — stored in a hot third-floor attic up a narrow stairway. The copier was on the first floor. And, as we will see in a later trick, Tony and Chuck set up specific appointments to lure me away from my house. It is inconvenient, expensive, and designed to cause maximum inconvenience. Remember, these were my own business records! I sometimes recommend a third party copying service take possession and copy — expensive, but gets the records away from the party controlling them with a lot of unnecessary game playing.

7. INTRUSIVE AND OFFENSIVE DISCOVERY Because I experienced a large number of slap suits as a litigation tactic, I am aware of how debilitating it is to have to defend yourself over and over in what whistleblower Attorney Linda Kennedy coined the Double B–Triple C play. We whistleblowers have almost all experienced this litigation tactic, otherwise known as keeping you — busy and broke, from charges that you are crazy, criminal and corrupt. Pretrial discovery and motions will be directed at challenging your honesty, sanity, and morals, while requiring you to respond to voluminous discovery, often totally disproportionate and unrelated to the issues at hand. As your office or home gets overwhelmed in paper and your free time and then work time get overtaken by what can be a landslide of legal demands, I found it is the best time to check in and reestablish your basic values and belief in God and in yourself. Then just go do your job and trust that God provides. Always. God always provides, so trust him. God however has a sense of humor — and may provide me with the lessons I need, not the ones I pray for or desire. And his timing is — quirky by my standards. I often want security. He gives me the lesson/gift of patience and faith instead. I wanted career success and national recognition — he gave me humility. I wanted action, and he gave me time for study and reflection. That’s how it has worked out for me, and it is a blessing far above wealth and material success.

8. THE CRAZY CHARGE The Crazy Charge is addressed in several prior references. (See also the next chapter.) But whistleblowers and people who challenge judge-abuse-of-authority often will have to fear this element. Judges become afraid (yes, of you if you dissent or challenge their logic reasoning, knowledge of laws, rules and procedures). They expect you to be dumb as a post and accept whatever they say, with at least fake humility. Their fear causes them to do protective head games, including trying to punish you for raising a question. They want to label it some kind of anti-authority disorder (or oppositional behavior) but it doesn’t meet the definition when judges are exercising power in an illegitimate manner and they get called out. What dissidents do — doesn’t meet the DSM bible criteria — but judges and the bar are hoping for a sloppy overlap and or a compliant psych expert to label a person who opposes judge tyranny — a social deviant. Even that doesn’t make them criminal, but it is a method of marginalizing court critics for not going along with authority — even when a judge misuses institutional authority in a way that is clearly illegitimate — flawed logic, bullying behavior, bias and error. Judges issue ‘crazy orders’ because they can: they may order a defendant to attend and pay for an expensive mental exam, or orders to remove from the courtroom to involuntary mental lockup. A tactic against attorney-whistleblowers (and judge’s wives). Without notice or due process. Because, of course, one must be crazy — to question the judge. This form of aristocratic thinking I did not realize was even possible [forcing defendants submit to a mental exam, or being removed from court and locked up. (Ostensibly lock up is for ‘observation’ but without charges, due process, or phone access to call for help.)] Especially in a divorce case. I know two Ex-Wives and several attorney whistle-blowers who experienced it. Given the historic (not to mention modern) state of mental diagnostics, it means false or fraudulent incarceration.199 Even if you are in non-criminal court and not subject to incarceration, you might be vulnerable. I used to have a mantra I said under my breath to calm my fears, “This is just divorce; she can’t arrest you.” But Judge Coffey once stared me down during a case called prior to mine. The poor man was a lender in a debt collection case. She had him arrested and handcuffed on the spot, all the while hard-staring at me. I understood

199 For example, the new DSM-V diagnostic manual is highly criticized for over-diagnosing non-conforming behaviors (including political behaviors) as mental illness. Bruce Levine, PhD, The Systemic Crushing of Young Nonconformists and Anti-Authoritarians, March 11, 2013.

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the message was directed at me. The debt-holder was just collateral damage. So I said my mantra and prayed for protection, but we both knew her personal goal (just not how or when she would achieve it.) Later she made a point of declaring, (out of the blue and apropos to nothing) You may be a most important woman in this state but this is MY courtroom, and I’m the most important woman here.200 It was a very female way of threatening me and asserting dominance. Her intention was to arouse fear in me as a defendant. This judge used personal aspersions against women as part of her MO — (remember her implied threat against the Belle Isle nuns?) — but this reference suggested Judge Coffey was not only competitive, but personal. As part of the higher order of judge-following, her misuses of power came with the knowledge that she was unfettered in her abuses at court and could not be corrected or disciplined.

9. RAMBO DEPOSITIONS201 The name speaks for itself. I once took a deposition where there were 4 walk-outs and 597 objections from two attorneys. One attorney ate and belched his way through the depo; he pounded the table, paced around the room and generally acted, (as he later told the judge) “like a jerk.” He seemed proud of himself. It was his style to avoid ever addressing the legal elements in his case handling and to attack-by-interruption — over collateral issues designed to be intrusive, embarrassing and hostile. He was continually interrupting me in court and used loud belittling language — and he argued collateral matters and avoided the legal elements in the case. I never figured out if he knew he would lose straight up at trial on the legal issues, or if was just a small man.

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The choice in a Rambo depo is a catch-22, so I try to stay focused and in rhythm and just get all the information I can, because often a judge will delay ruling on sanctions and orders for months, if at all. Get what you need in the way of answers, and try not to respond to the baiting. A lot of it is gender-based bullying, and judges often seem to enjoy when male attorneys are disrespectful and attack females. It’s an interesting misogynistic form of male entertainment. It’s worse, (or at least cruder and more blatant) out west in cowboy land.

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The trick of setting early and unrealistic time frame, then allowing no continuances is one that is used which provides favor or advantage to the powerful — namely the party in possession and control of critical records, the party with greater economic resources, or the party with crafty litigation skills.

1. A RUSH TO TRIAL Example One: Three months into my divorce case, at a hearing on my inability to get discovery records, the judge established the trial date four months out — September 6th. The case involved a complex business valuation with all finances and business records controlled (and withheld) by my husband. Essentially, the judge said —

200 For several years, I was mentioned in New Hampshire Premiere Magazine as a television host and political figure, along with several dozen other influential women. The feature named the state’s most powerful woman, an honor that usually went to the Governor or a Supreme Court judge. 201 Jean M. Cary, Rambo Depositions: Controlling an Ethical Cancer in Civil Litigation, Hofstra Law Review, Volume 25, Issue 2, January 1, 1996. In general, see Hofstra L.R. for many good judicial ethics writings and studies.

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I have made reasonable orders for the exchange of discovery of the parties and there is no reason that this case cannot proceed to trial.202 Therefore, I am ordering the parties to be ready for trial on September 6. Any requests for continuance, the wife will repay any support to the husband from her property proceeds.203 At the time, the average time from filing until final trial for a divorce case in New Hampshire ranged from one to three years. Three factors that suggested this was not a fast-track case: (1) valuation of a jointly owned marital law practice (classified as more complex category of business valuation); (2) the husband denied it was a partnership; and (3) prying old business valuation and other discovery out of him and his new lawyer associates would consume extra preparation time and involve legal barriers and obstacles. I was sidetracked from normal discovery by the special GAL discovery/ appraisal process, which I figured out was bogus. The goal of the party in possession of records is to run the court-clock, while at the same time failing to turn over (but pretending to cooperate.) There will be lots of misplaced concerns, delays, and objections with complicated judgearrangements that just never really work out. Alas, the opposing party finds she is unable to prepare for trial.

EXAMPLE TWO: APRIL 15TH TRIAL DATE Mike Rubin’s trial was short-set for April 15th — a notorious date in America for CPA client-filings with the IRS. The husband filed for continuance a month before trial because his CPA expert witness could not appear until after April 15th. He needed a short continuance to use this expert and to prepare for trial. He named six other attorneys who agreed to represent him at trial with a short continuance to prepare. The judge waited until April 15th to deny the continuance. She said: You cannot have a continuance for any reason.

Two local attorneys had complained this judge demonstrated an extreme bias favoring a Rockingham attorney (with an apparent BFF relationship with the woman judge.) Their local legal-community-reputation was that the judge consistently manipulated case wins for her BFF. That information prompted the client to began documenting acts of judicial bias and malfeasance in his case. He began with an affidavit.204

WHY IS A RUSH TO TRIAL FAVORABLE TO AN INSIDER? The party with a greater degree of control over a case, its discovery, or an insider expectation of winning a case, will try to rush the case to trial before the other party is prepared. The can stonewall right up until the week of trial, then do an American style dump in a manner that is ‘compliant’ but useless and overwhelming. It represents ambush and control — and has an emotional component of bullying and punishing the other side. The emotional component of a lawsuit works against a defendant in all cases, but particularly in divorce cases, where the plaintiff may have prepared emotionally, financially, and physically by hiring a team to calculate how to take all the assets. Once the assets are taken care of, the ultimate insider will set aim on winning the children — because they represent another revenue stream, and create the maximum distress and psychological harm to a spouse. Worst in my divorce-attorney experiences are cases where an insider husband is ready for trial well in advance of filing for divorce. Litigator personality and engineer-types seem to be the most unfeeling and manipulative, and are inclined

202 The judge’s special discovery orders were that his BFF/GAL was to collect what was needed from each side to determine FMV and make recommendations to the court about property division. These orders usurped the normal discovery process. For many reasons, this alternative discovery process was inherently flawed. 203 This was the same example I used in the financial tricks chapter about how the judge was mixing asset apples with support oranges, anticipatory contempt, and other rule and law violations. This is same example with different focus. 204 Mike Ruben’s case is carried forward as an example throughout the book.

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to pre-plan a year or more before telling the little woman anything is amiss. (They never tell about the inevitable GF.) In the meantime, they have shopped already for a female replacement, and calculate actions in terms of winning everything at trial. My experience is — there is always a new GF, no advance warning, and some men will cuckold a spouse up to few hours before execution.205 In particular, divorces seem the worst sort, because of the trust and fiduciary elements of married people betraying the other. So a rush to trial is especially unfair to the defendant in these cases because they simply cannot rapidly process the emotional and financial devastation which crashes down at the start and the end of the case. While the other party has processed the emotional, legal, financial (but maybe not the sexual or physical) separation and moving on, the defendant spouse is reeling and off balance. The American system — a new sociological experiment from the American Bar Association and Ronald Regan in the 1960s — is now no-fault divorce, and it is, as we shall later explore, a failed social policy experiment resulting in gross unfairness in many divorces. So judges who rush cases to trial by insisting on setting a date for final trial prematurely send the signal that its okay for insiders to run the clock on discovery. A judge who asks to set a final hearing even before a party has filed an answer to the libel, or who starts issuing order (especially in chambers) without all the documentation being filed, is guilty of negligence, neglect or favoritism. It may seem like all the ‘informality’ in the courtroom is granted as a special favor — but if you are not a VIP, the special favor isn’t for you.

2. EXCESSIVE DELAYS On the other hand, the divorce industry is the sole beneficiary (in the form of fee generation) if a final trial is repeatedly and excessively delayed. There are numerous examples in clerk of court and other trial tricks, but the inefficiencies are not only those of court administration, but are favors and excessive extra revenue opportunities for lawyers created by this judge trick.

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Whether by design or malpractice, it is the public consumer who pays the lawyers.

Example: Delays and more delay

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My team was prompt with the judge’s deadlines — for discovery, for disclosure of experts and witnesses, and exhibits. We were ready about two months before trial — all but assembling and final prepping of witnesses for the witness stand, and assembling the last-minute proposed motions in limine, proposed orders and finding of fact. On the other hand, the jerk-attorney forgot (to file for any discovery; forgot to file any trial witness list or exhibit list; forgot to get any experts.) He was busy being a jerk, and telling the judge how complicated this case was. He claimed to be sick and postponed three pre-trial hearings at the last minute. He clearly avoided not sending me notice of the postponement, causing me to make three long unnecessary trips to court. When a hearing finally happened, the judge opened by sua sponte initiating a trial continuance. He ignored the 60+ pending motions, and spent hours re-doing all the pretrial dates. He extended the trial date indefinitely. This happened twice again. I calculated the lawyers probably billed twice the fees that accrued using the first trial date. (About two years out from their initial case filing.) It seemed to be common judge practice — to make indefinite trial extensions — for no reason but to save remiss and unprepared lawyers from malpractice, and generate years more legal fees. It’s judge work to insure a powerful party is not allowed to take advantage of a weaker one by either rushing or dragging out a case. In family law, the breadwinner (or person calling the shots, in control of assets) will suffer no financial distress, but requires a compliant judge. It may sound contradictory on its face — speeding up or slowing down a trial date — but the answer is: follow the power. Who stands to financially benefit from timing tricks? 205 My apologies to all you nice guys who are loyal and loving who will take offense with my generalization. It’s my experience. I take responsibility and have paid dearly for getting involved with a charismatic opportunist. Nancy Sununu warned everyone, but for me, she was too late.

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69 INDEFINITE INCARCERATION AND CONTEMPT OF COURT

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When I began writing this book, it was long before Guantanamo, and this was a considerably smaller section than it is now — back when disengaging the Constitution was extraordinary and shocking, and there were but a handful of notable cases, some of which led to eventual governmental apologies and reparations.206

EXAMPLE ONE: DR. ELIZABETH MORGAN Example One: Dr. Elizabeth Morgan was a physician who refused to produce her small daughter to the custody of her former husband, who she charged had sexually abused the child. Dr. Morgan vowed to stay in prison forever to protect her daughter. It took a rare act of Congress (a private bill) for her release on the grounds that the contempt order was ineffective.

EXAMPLE TWO: INDEFINITE INCARCERATION A divorce defendant (a lawyer) has been incarcerated in jail since 1994 without any charges pending. A divorce judge ordered him to turn over $2.5 million to be placed in a court-held bank account.207 The prisoner claimed he was unable to pay because the money was lost in bad investments. The judge claimed he was lying. Dying of cancer, the 72 year old is routinely denied even furlough and is on his 15th year of incarceration. His attorney claims, “everything about this case is irrational.”208

INCARCERATION FOR CIVIL CONTEMPT Habeas Corpus is the intended tool for Americans to get released from unconstitutional holding by the State. It has been neutralized as a federal right by a series of Supreme Court rulings (through what I consider a series of non-bonafide rationalizations by judges) and several judge-made “doctrines,” and by state court rules to take away the right to habeas and to remove the process of appeal to a higher court. The study of this judicial rescinding of a federal constitutional right is a course of its own; Civil Rights attorney Anthony Amsterdam has written and studied the process. I recommend studying his analysis and writings to start.209 But I felt it important to acknowledge the phenomenon for readers who have suffered trying to access a fundamental right that is either moved, misplaced or barricaded from use. I believe those are judge-made tricks, and federal hands-off attitudes of Congress, as seen in the post-911 law on the Patriot Act and the Antiterrorism Act. What good is a right if you can’t access it? To the extent that habeas corpus exists in name only — I have been down the road of trying to find it. It is the rare attorney who can find the new path. Theoretically, if a person is unable to comply, imprisonment for contempt is supposed to end. Contempt is intended to obtain compliance (as opposed to punitive lockup, which is punishment). For example, a reporter refuses to disclose a source, or a witness refuses to testify. The purpose of lockup is to force someone to cooperate or comply. If someone is unable to comply or demonstrates a firm will never to comply, the judge is supposed to release them.210 Some states have statutory limits on how long a judge can incarcerate a contemptor to coerce them into doing what is ordered: usually twelve months up to two years, after which a party has to be released. 206 The Japanese-American interment during WWII in the Manzinar is the most notable. 207 Court-held trust accounts are included in financial chapter. 208 As reported by Ashby Jones, “No Charge: In Civil-Contempt Cases, Jail Time Can Stretch On for Years”, Wall Street Journal, January 8, 2000. 209 For example, see Amsterdam & Brunner, Minding the Law, Id., Also Ronald J. Tabak and J.M. Lane, Judicial Activism and Legislative ‘Reform’ of Federal Habeas Corpus: A Critical Analysis of Recent Developments and Current Proposals, Albany Law Review, 1991-55. 210 The Los Angeles case of Attorney Ron Fine could fit in any number of chapters, including his coercive lockup by Judge Jaffe for 18 months, but see Tricks After Trial for the Fine case. I suspect it was a vendetta because this attorney exposed and embarrassed Ol’boys and cost them all that extra money they had been pocketing.

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EXAMPLE THREE: MY CLIENT211 WAS JAILED INDEFINITELY My client was jailed indefinitely for refusing to send his monthly child support check to a state agency. He was current on his payments and faithfully mailed his support in a plain envelope to his former wife’s address. She refused to open the envelope because she wanted nothing to do with him. At trial, she claimed that just receiving the envelopes with his return address — made her children ill (i.e. caused them harm). It was a very female enhanced court hearing as I recall. Short on rational thinking and big on estrogen. The law provided for state processing of child support payments, but only for payors who were 90 days in arrears. Stan was not in arrears. Except mom had not opened the envelopes for 3 months, and she produced them and waived them around unopened at trial. Beats me — if I had been the judge, I would have just said open the dang envelopes and case dismissed.

Instead, the judge jailed Stan for contempt for more than a year and Stan refused to leave jail even after released — not until after all allegations/charges were rescinded and voided and his name cleared. This man was a phenomenal financial analyst — and could study the state budget and audit it, producing all kinds of interesting surprises that were right there in financial code — in plain sight, so to speak. A little anal retentive on upholding the law, but I could appreciate Stanley’s integrity for what he felt was right. He was right about the law of course, and the judge was wrong. But a year in a dangerous holding place is a long time to make a point. And of course, he couldn’t pay child support that whole time, so the mother was in a stewpot of her own making. Divorce gets like that — with special tricks of marital masters. There are more and they deserve a special book.

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EXAMPLE FOUR: A NEW YORK FINANCIER A New York financier spent six years in jail for civil contempt for failure to produce documents, gold and goods. Although not charged, the judge wanted him to produce evidence to prosecute him.212 Perhaps she should have tried taking his trash.

EXAMPLE FIVE: MANUEL OSETE

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Manuel Osete is a philandering wealthy husband who ignored court hearings and moved extensive marital assets to Mexico (including a foundry and a manufacturing plant) to avoid a pending Arizona divorce. He filed for divorce in Mexico courts, obtaining another set of orders, and tried to ignore those issued in Arizona. Jailed in the U.S. for civil contempt (failure to pay $800,000 to his ex wife and various other contempt-able issues), Manny claimed he was being improperly held in debtor’s prison over an inability to pay. The Arizona judge disbelieved him, and it took 27 months behind bars before he was released. This kind of extreme, emotional, and often irrational divorce behavior gets played out in many family law cases, over far less money. This example is important because it turns the contempt process in to a bright blue line -er-lien, and it involves tough judgmental orders. Sometimes, it works to force a recalcitrant party to demonstrate (begrudgingly) respect for the legal process, and sometimes it’s judge abuse.

EXAMPLE SIX: CONTEMPT FOR DISRESPECTING A JUDGE The line between respect for the system and respect for an individual judge is thin, and often tough to call in the heat of a court battle. Contempt powers used to force a party to respect a judge personally are different than using contempt power to enforce a legal obligation or order. The gap between personal and enforcement is a weakness in the system first based on religious privilege, and later imperial privilege. Allowing Judges to leverage the weakness by using their contempt powers for their own gratification is, in my opinion, abuse of process.

211 Concord resident Stan Post. 212 Martin Armstrong was jailed six years for contempt.

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As a new attorney, my first encounter with judicial temper tantrums about false respect was second-hand. The young, sternly benevolent judge (who appointed me to my first guardian case over four abandoned siblings) was an intimidating judge. Although he refused to deal with the sexual comments male-lawyer-opponents said about me in court, I soon heard how this judge incarcerated a lawyer two days for criticizing his ruling. He also incarcerated another lawyer for sending in his client alone when the lawyer was in another hearing.

Arguably it is misuse of power to use contempt to enforce personal respect. The institutional quest for imperial court authority over the last half-century has led to an increasing misuse of contempt power by a disproportionate number of super-egos on the bench. Having been married to one, each of the ex-wives of judges can attest to the inflated self-images that are an occupational hazard for families of those appointed a judge. When politicians go to Congress, this phenomenon is called Potomac Fever. For judges, the condition is Imperial Malaria. The system makes no distinction about personal respect for judges earned or demanded. Or whether the contempt is in court or outside. The new legal system fertilizes arrogance in judges and promotes the growth of personal abuses. It’s a tricky legal tool, and requires not only better guidelines and oversight, but some mechanism to empower parties to get the court to control rogue judges. Media spotlighting? Rogue judge of the week? Personal liability? Three strikes and you’re out?

EXAMPLE SEVEN: COURT JESTERS It was a cold morning in January on Long Island, and there was a long line for security checks at the Hampstead First District Court. Attorneys cut ahead of the line, flashing their bar cards. Harvey Kash (age 69) and Carl Lanzisera (age 65) joked with each other, classic old lawyer jokes that made people in line laugh out loud as they waited.213 Q: What do you say to a lawyer with an IQ of 50? A: Good morning your honor. Q: How do you tell if a lawyer is lying? A: His lips are moving. Q: What do they bury lawyers 100 feet into the ground? A: Because down deep, they’re good people. Q: What is the difference between a vulture and a lawyer? A: Wingtips. A bar organizer for court staff was also in line and angrily yelled at the pair to shut up. He went inside and returned with sheriffs who handcuffed the geezers, took them into a side room, and frisked them before charging them with disorderly conduct and jailing them for several days. “They were extremely nasty,” said Carl and Harvey, when forced to appear on misdemeanor charges. A spokesman for the courts said even if the men were exercising their free speech rights, they were impending on the rights of others at court. This culture at court is a reflection of the judges inside. Poorly regulated emotions, inflated egos, raging testosterone, on-the-fly decision-making. All examples of the dogmatic rigidity harbored under the mantle of the power and authority of the institution. Alexander Hamilton said the judiciary has no influence over either the sword or the purse.214 Yet this overprotective and ego-driven reliance on institutional authority — to make others comply — has resulted in a cult-like mentality within the court. Judges (and staff who work for judges) have come to expect and demand obedience. The requirement for obedience is construed to mean there can be no questioning authority. No joking. No objecting that a judge’s reasoning is illogical or erroneous. The court, through judges, has assumed the most fundamental posture in our culture outside of the military. 213 Zachary R. Dowdy, Pair Arrested After Telling Lawyer Jokes. www.newsday.com/news/local/longisland/ny, January 12, 2005. 214 Taken from an essay on Judicial Tyranny — the New Kings of America, Matthew D. Staver, When in the Course, National Policy Center, 2005.

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INCARCERATING DEFENDANTS FOR NON-JAILABLE OFFENSES (2005)215 On the surface, a judge may act as though there is no limit to his power in the courtroom, but the constitution trumps the power of any judge. A defendant’s civil right to due process and equal protection is not only the basis for findings of judicial misconduct, but violation of civil rights. One judge repeatedly incarcerated defendants in criminal cases when they were unable to post bond, even thought their cases involved non-jailable offenses. In a later civil rights suit against the judge, he claimed judicial immunity, but the defendants won not only an injunction against the judge, but an order for payment of attorney’s fees.

INCARCERATION WITHOUT CHARGES, WITHOUT TRIAL (2014) Now, this has a name. It is called extraordinary rendition. President Clinton used it 80 times; President Bush avoided the U.S. judicial system hundreds of times, and President Obama swore he never would, but it appears now it has been used “fewer than 100 times.”216 The former White House Chief of Staff/CIA Director assured Congress “U.S. prisoners would not be sent to foreign countries for interrogation and torture.”217 And yet …. it happened. Americans-in-charge sent untold people to other less moral, less civilized countries for the specific purposes of torturing them there, because to do it on American soil would violate our basic human values.218 The executive presidential system of Executive Order-making evades the American judiciary in matters of human rights219 — and yet, how do no judges react? Judges are the most socially active arbiters in our American history — jumping in to make cultural rulings on a plethora of social issues — far less a moral mandate than these basic rulings on torture and killing and human life rights. Where’s the judicial activism when it really matters about government abuses of life and death?

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ATTORNEY ELENA SASSOWER Elena Sassower is in a category by herself, as an American woman who sought — respectfully but determinedly — to testify in the U.S. Senate Judiciary at a public committee hearing against the appointment of a federal judge nominee, Richard Wesley. It was on the occasion of the public hearing in Congress for a nomination to the Second Court of Appeals. She had valuable personal knowledge and strongly thought he should not be appointed. Apparently public hearing doesn’t really mean what it sounds like. You can watch, but not speak.

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Sassower wrote the office of Senator Clinton, requesting help arranging her committee testimony. Clinton’s Senate office did not respond and appears to have provoked the later travesty. Sassower traveled from N.Y.C. to Washington, but when she arrived, Elena was threatened by the Senator’s staff, told to stay away from the hearing, ignored by the hearing chairman, and subsequently arrested by Congressional police. Initially there was no charge against her, but eventually it was labeled “disrupting Congress.” The hearing video and independent reports proved she did neither. She stood and asked if she could address the issue, and the Chairman refused to reply. She was tried with kangaroostyle rules and treatment that appear one-sided and biased, then incarcerated 179 days.220

215 Arrests for contempt are often trial or post-trial events, and this issue is continued in those sections. 216 Pamela Hess, Associated Press, Panetta: Obama Won’t O.K. “Extraordinary Rendition”, February 9, 2009, as reported in Truthout. 217 The entire issue of using alternate, non-constitutional courts (military courts) for incarcerating alleged terrorist is one that the Executive Branch uses that manipulates the operation of law. Holding terrorist indefinitely without charges or prosecution not only evades fundamental Constitutional principles, it evades human rights. This is closely akin to the SJT civil contempt process — same nature, same results. 218 The torture is also in the reasoning — it’s immoral in location A, but not immoral in location B; because someone in charge thinks morality is an advertising slogan, not a sacred personal decision. 219 CIA Director Leon Panetta said renditions are appropriate and the CIA people involved should not be prosecuted because the White House gave permission. Id. 220 Center for Judicial Accountability, December 23, 2007, http://www.judgewatch.org

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We are all indebted to principled activist like Stan Post and Elena Sassower and Richard Fine. They are like us — if you have made it this far reading this book — you are thoughtful, concerned, and probably independently moral about your life choices and your ethics. I got dragged into my cases backwards and by ambush — I was intellectually unknowing almost all the way through — about what really was going on. But these three stood up and walked in tall — said their rights, and got unfairly retaliated against by misguided judges. The court system is afraid and in fear; so judges react from fear and anger when they illegally repress this kind of thoughtful citizen activism. So each of these people were wrongly charged, tried, long-incarcerated, and they sacrificed much on a personal level. Thank you.

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While trial time for presentation of a case or defense can be reasonably limited, judges have the ability to preclude or admit large banks of evidence. If those decisions are made capriciously or in a biased manner — the judge can affect the outcome — fairly or unfairly. By ruling to preclude entire issues, judges can manipulate this power to unfairly refuse to administer laws and effectively make the court a private one with personal laws — not public ones.

EXAMPLE ONE: CUT OUT THE HEART It was clever the way the judge dismissed part of the case early — forcing the plaintiff to make a decision about whether to stop to appeal the dismissal of the most important issue of three issues being tried (mid-case — greatly disrupting the trial), or to continue with the trial to pursue the remaining avenues to their end, then file the appeal — maybe years later. And if they won on appeal, to re-do the trial. The biggest element of this $28 million dollar case of a former employee against General Electric was the part of the case that was dismissed, so the decision to keep moving ahead was a tough one. I call this trick divide and conquer. Years later the plaintiff, a wind-turbine-engineer, won a fractional award (1/5th) for the remainder of his original claim, but by then he simply lacked the energy to go back and re-bring the larger value claim. (He bragged that he had gone through 28 different lawyers, and filed a large number of professional conduct complaints — his client strategy to avoid paying his lawyer fees.)223 Large corporate lawsuits will wear you down in different ways, but a client like this will also. Here, it was the prospect of a second trial over much of the same issues that created a judicially manipulated dilemma. 222

EXAMPLE TWO: NO ADULTERY ALLOWED State judges routinely thwart any attempt to obtain a divorce based on fault grounds. The court will manipulate the case to prevent the introduction of any evidence, which supports or proves fault. The law allows fault, but judicial practice does not.

221 This may be a pre-trial decision, or it can occur at trial. I put it in this chapter, but also look for it later at trial. 222 It is officially called a summary ruling — see also the discussion of summary contempt. 223 His MO was to run up a big lawyer bill, then complain and move to another firm. He had a good claim of wrongful termination — but also was his own fatal flaw. I tried his divorce; Chuck filed the GE lawsuit.

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Counselor, if you try to argue fault grounds in my courtroom, your client will be very sorry, and I will deal harshly with anyone who tries to argue fault. I’m will not hear anything except a no-fault divorce, and have struck three days off of tomorrow’s trial.

I advised my client in writing that she had a right to present those issue and that what the judge ruled on the eve of trial was improper. The client was upset but went along with the judge’s limitations until after trial (when the client wanted relief.) By failing to act when it was timely, whether out of weariness, fear, intimidation, or cost, she sat on her rights and signaled her acceptance of this type of legislation by judicial fiat. Counselor, I don’t want to hear any fault evidence in my courtroom. I’m tired of it and just won’t have it. The judge considered it messy. And granted divorce based on the guilty party no-fault cross-libel. 99% of divorces are granted based on no-fault, not because there are no fault-filings, but because the judges systematically and improperly limit issues for trial. The judge substitutes her own preference or practice for statutory provisions passed in the legislature. Parties are denied rights under law, and there is no effective recourse to force a judge to hear issues she capriciously says she will not allow. In criminal cases, this ability of a judge to preclude issues is a sneaky tool wielded to prevent defendants from presenting defense elements — particularly in cases involving official misconduct. One criminal case also involved alleged police misconduct and cover-up. The judge systematically ruled to quashed all issues relating to the law enforcement officer’s personnel, work, medical, prior complaints, and information going to a pre-existing pattern of behavior.

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If that pre-trial treatment doesn’t avoid disclosure of exculpatory evidence, then at trial the judge may apply a summary procedure to precluded full hearing on vulnerable issues in the prosecution case. Once again, keep a list of rulings to determine if judge rulings are tilted in favor of the prosecution. Note if the judge initiated the exclusion of evidence (not the prosecutor.) There are times where a judge leans over so far (to help the prosecution make or shore up its case) that it seems an appropriate time to ask if the judge would like to sit at the prosecution table? 224

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This pattern is difficult to prove, except as part of a greater picture. Look for illogical reasoning, sua sponte actions, body language, and chart the number of discretionary rulings limiting the issues for one side, which disfavors or harms the other side — or a pattern of expanding issues or contracting issues for the prosecution.

71 TRUMPED-UP CRIMINAL ACCUSATIONS

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CRIMINAL BALLOONS Another bogus play by judges is a so-called ‘righteous indignation’ they sometimes affect. I already mentioned the big three favorites. This example is how acts get misconstrued as witness intimidation.225 My example of this pattern of judge game-playing follows: Each of my staff, all of my experts, my publisher, and most of my friends went through severe intimidation — in the form of subpoenas served at their homes late at night by sheriffs with lit up cruisers; threats of lawsuits, threats to destroy their business, reputations. Slander. There were three physical incidents where the kid-attorneys and staff surrounded someone sitting, pressing in court at the first hearing. Henry the Handy man was interrogated and kept hours in a

224 This has been my instinct and dark humor — I’m not suggesting ever making such a remark aloud. 225 Also called witness tampering.

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windowless room when he went for his final paycheck. I was similarly (another day) angrily encircled by the four young lawyers and staff, the only time I went back to the office after being served. Nasty tactics that fade over time but are hard to completely forget. * I hired a process server who showed up at the law office to serve a subpoena that required in person delivery. He needed to make sure the woman recipient would come out of her locked office to accept the subpoena in person. He carried and gave her a balloon bouquet, along with the subpoena. At the next hearing, my husband and the four kids went berserk — then the judge picked up on their tantrum — threatening me with criminal charges of witness intimidation and said I was deserving of a referral to the professional conduct committee. He said, for the unethical trick. What unethical trick? It was a bouquet of balloons. Chuck and his associates popped the balloons, flattened them and entered them into court as trial exhibits. * They tried a similar threat after my private investigators collected trash. That time the alleged charge was going to be invasion of privacy. They charged my poor handyman with theft of trash fabricating that he took documents off office desks when he emptied the office trash. Scared him ’til he sobbed and called me a b****. He was so guilty about this play-act of disloyalty but claimed later he was surrounded and kept imprisoned in a windowless room for several hours. He said they wouldn’t give him his paycheck until he pretended to take their side. But in court, the balloon and other shenanigans served to divert attention away from the obvious — Chuck’s new lawyers weren’t shredding anything, and he was throwing out sensitive documents, love notes, trip arrangements, condom receipts, OB-GYN medical records and a letter from Tony Tarbell about suspicious acts to devalue the firm.226 The judge yelled witness tampering long and loud, and intimidated me, because I didn’t know what he was talking about. The up-chuck-team brought in one copy of what they claimed was a “deposition transcript” (another ambush) and the judge entered it into the court record as evidence.227 When dear Henry finally told me what happened to him when he went to get his paycheck, he was like a scared kid. He hid the episode and continued to come to work every day (for me. He never went back to the up-chuck firm). I first heard of “the Henry deposition” at the next hearing. Henry could have no more read legal documents on a desktop (to select the right ones to steal) than he could have sorted through the state budget. It wasn’t within his capacity, nor his nature, nor was there any record or evidence of any similar behavior. That’s why attorney offers of proof are called offers to lie. I read about a similar charge of Witness Intimidation (aka, witness tampering) in an unrelated news story in the local Derry New Hampshire newspaper shortly afterwards, and realized the ol’boys club was passing around and using the same tactics to intimidate others non-insiders. There is probably no bigger group of gossips than sheriff departments, so whatever is the current trend in intimidation techniques — gets passed around like brownies at a picnic.

THE ‘WIRETAPPING’ SCAM About the same time, one of the powerful state senators seeking judicial reforms experienced a calamity in her own family. Supreme Court Justice Stephen Thayer was not yet in trouble for trying to pick compliant judges for his divorce and appeal, but he had, for many years, failed to report a large “so called loan” from former Supreme Court Clerk of Court, Emile Bussiere, (another Insider lawyer and Judge Thayer’s mentor.) In the meantime, Justice Thayer sat on appeals of Bussiere cases, and was involved in an appeal prosecuting Bussiere’s enemies. This included the adult-lawyer-daughter 226 I never got to put any of that stuff in the court record for many reasons. What did get in, disappeared. Whatever the other side wanted to put in — (like the Henry deposition) — slid right in. It was like indicting the ham sandwich. 227 Of course, there was no deposition. They cornered and questioned Henry for several hours, intimidated him, told him what to say, and then turned on a recorder. They transcribed themselves what they claimed was on the recording.

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of Senator Sheila Roberge. The daughter was charged by the state bar conduct committee with “wiretapping” for putting a Bussiere phone call on speaker phone and recording it. Her attorney (whom she had disclosed) was in the room listening (that’s why it was on speakerphone).228 Nowhere did the act of recording a speakerphone meet the definition of a “wiretap”, but everyone from bar prosecutors to judges seemed to avoid the plain meaning of the definitions in the state statute. The PCC complaint229 was great harassment value against the Senator, diverted attention from the secret $50,000 that had passed between Bussiere and the Judge Thayer, and my best guess is a million dollars was expended on each side prosecuting and defending that attorney ethics charge. Thayer’s role, (although he was supposed to be recused) it was discovered that he not only wanted to uphold the conduct charge, but recommended increasing a short suspension to permanent disbarment.230 It was a great and stressful diversion from legislative calls for judicial reform.231 All this is indicative of the pattern of the brutal use of the state PCC to go after certain ‘political enemies’ of judges. One case was dismissed, the other a censure. At what cost? Probably a million dollars to defend in a judge vendetta against a powerful Senator (active in the legislative impeachment investigation of Supreme Court judges?) Between the cast of characters and the loosey-goosey criminal charges, it smelled to me like pay back.

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Fast forward a decade and turn those bar prosecutors loose on the NSA? Sadly, they’re not into bullying the powerful — but seem to thrive on persecuting individual enemies of the court and its judges. Insider ethics systems. One element of the insider ethics disciplinary system that has evaded reporting — both in this book and in life in general, is the distinction that the bar-disciplinary system is not a Constitutional court. It operates a lot like regulatory-administrative tribunals — but different even from those. Attorneys caught in this insidethe-bar prosecution are not cognizant that they are being tried by — a quasi-court that has no bonafide established Constitutional authority — but it operates under a kind-of dispensation power of the king. A non-jurisdictional system of excess-power by judges, who created this behind-the-scenes-system, based on a college-honor code model. Then at the end of this insider process, the king reaches out and takes back jurisdiction, and makes an announcement that the trial/process outcome, is now a law. Under the authority of the Supreme Court. It’s a duck and bob method of finding someone ‘guilty’ but without the underlying legality that makes the handling and outcome authentic or reliable.

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That’s how my non-criminal charges became a national public appearance (posted on the State Supreme Court website) that infers I was criminally convicted of … something that sounded unethical. And maybe criminal. (A campaign similar to the Martha Stewart smear campaign, but slightly different. Martha wasn’t an officer of the court.) I mentioned the starchambers process in other sections, but the distinction is the lack of authenticity compared to the real outside-court process. This wasn’t a real criminal charge, brought by a real criminal prosecutor, in a real criminal jurisdiction court, with U.S. Constitutional criminal safeguards and requirements that Americans are supposed to get for every stage of charging and trial. Instead, this is an American internal court process designed for judges and officers of the court, that lacks all that ‘realcourt’ indicia. As an American, I believe it is an un-American and unreliable court abuse of institutional authority. It makes attorneys first and foremost officers of the court — and secondarily American citizens. That is flawed thinking, unfair misuse of government authority by judges, and it circumvents national principles. Just like the Roman Catholic Church is no longer permitted to avoid the American system of law, (due to Judge Constance Sweeney recognition that

228 See N.H. Supreme Court, LD 97-008 Roberge Case; LD 97-009 Feld’s Case, and Bussiere v. Roberge, 142 N.H. 905 (1998), where Plaintiff Bussiere was described as waging “fierce war-like litigation,” and the PCC Investigator Varney was challenged for his duplicative role as prosecutor and judge. Judge Conboy made the referral. (In case you don’t recognize it, that’s the whole crew in yet another case.) 229 The PCC is the Professional Conduct Committee. It is the New Hampshire’s court-bar attack dog, and investigates (or not) complaints against lawyers. 230 So interesting that when the shoe was on the other foot, Justice Thayer traded a criminal prosecution for judge-tampering charge — for merely his resignation on the Supreme Court. No suspension. No jail time. No trial. No PCC vendetta. Not even the loss or suspension of his lawyer license. He moved to Washington D.C. to work for President Bush on a committee recommending nominees for federal judge slots. I, of course, am the only person who seemed to find all this hypocritical. 231 What also is interesting is the attorney conduct committee tried to turn a non-responsive discovery answer into an attorney crime (against Attorney Feld.) See later discussion where the U.S. Supreme Court found the opposite (See Tricks After Trial.)

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the law applies to everyone, no matter how important) and every organization, and every operation within jurisdictional boundaries, so the private ethics system of judges should fall to the same American system’s power and authority. Power and authority over judges, and, yes, power over those who are citizens but also officers of the court. Doing their judge jobs in regular legally-established courts, (not in alternative trial systems that are corrupted and unreliable.) Had I had access to the jury system in a regular criminal court, (for any of the various stages of my whistleblowing career) … the illusions and sophistry of this secret authority and power of judges over others, would not stand up in the open and established American system of justice. A Constitutional court, for all its flaws, still is established with inherent credibility and reliability. Open court in the American system of justice. By allowing judges to silence those lawyers who are calling out judicial abuse and corruption within the legal system, the process is fatally flawed. Attorneys should be charged and tried only within the open court American criminal jury system.

SERVICE ABOUT PRO BONO LAWYERS 72 LIP AND FLAT FEE CRIMINAL DEFENSE

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The chief judge and the bar love to pretend what great services they provide for the poor. In fact, it is the chief justification for taking all the client interest earned in lawyer trust accounts. The IOLTA funding helps economically stabilize the unified Bar in each state, along with dues, courses, and assessments from every lawyer. Bill Cushman, court watcher extraordinaire, sought out the pro bono guidelines — and found they were $10,000 adjusted gross annual income, with not more than $1,500 in liquid assets. And a sworn promise to pay all costs if the applicant won the case or got future employment. But signing up doesn’t mean getting representation, and certain areas of law (family law, for example) the demand far outstrips supply. Just like law libraries, law school clinics have also virtually dried up, with the exception of landlord tenant clinics or limited subject programs. Every Innocence Project is overwhelmed and under staffed — often lacking any full time lawyer and utilizing revolving student help and one or two really smart paralegals. Relative to the hundreds of dollars an hour fees and thousand dollar retainers it takes to even retain an attorney, (much less pay the run-up that frequently happens) the comparative earnings of poor and middle class means most cannot afford lawyers. And yet the bar has another concentrated lobbying effort to get rid of gadflies and affordable and free other people who have traditionally helped poor and pro se clients. Let them eat cake. When Chief Justice Brock testified at a committee hearing on attorney fees, he talked about people who just wanted to use their money for luxuries instead of a lawyer.232 When it came time for him to pay his legal fees for his impeachment proceedings, he asked the state legislature to pay for him.

73 LAWYERS WITHDRAWING BEFORE TRIAL

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LAWYER WITHDRAWING The rule of court that an attorney cannot withdraw from representation once the trial has been set — was established to avoid leaving a defendant stranded or the chaos of getting a new lawyer up to speed at the last minute. As we have seen, at least one judge just ignored the rule. My husband told stories of attorneys who used euphemisms to convey a private message to the judge that they wanted off the case because they had not been paid. “We’re waiting for Mr. Green,” is how he told it. Once the trial date is set, it requires advance permission of the judge, or else the lawyer must follow though with the trial — paid or not. 232 See Chapter Four, §51, example 7.

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But I never saw this trick applied until just before I closed my own, now solo law practice. I didn’t do criminal law, per se, but became involved deeply in my almost-youngest brother’s criminal case. (I had a lot of brothers.) He was going on trial for a charge he adamantly insisted was self-defense (a ‘routine’ traffic stop where the deputy apparently panicked, pulled and fully discharged his gun. My brother, who had on swimming trunks, cowboy boots, and a holster — returned fire without aiming. It was a hot July evening, and he and Chester, our old German shepherd, were returning from pistol practice and swimming at the quarry. What followed by way of investigation was so shabby or inept that it supported the idea of a police cover-up. My parents put up their house as bail collateral, and several of us worked non-stop, although the family hired a ‘good’ law firm to represent him. My brother insisted on a trial to prove his innocence, although the case became somewhat of a vendetta against my parents — local leaders in the Libertarian Party. My brother had run for state office, and other brothers had stories of being routinely staked-out, followed and harassed by local law enforcement. I was many thousands of miles across the country, not going home much, (my life in our local version of national politics was both busy and exciting) and had no idea that regular Americans were under surveillance and routinely harassed because of their politics. This seems like a good place to say I’ve always been pretty Pollyanna, including a kind of blind naïveté about both the Vietnam War protests and uninvolved in the hippie/drug/love rebellion that in 50 years of hindsight, became the norm and stigma for my generation. I read and studied my way through the most difficult parts of my life, watching, thinking, praying, but not acting in any outward political or militant sense. That first attorney took my parent’s flat fee for the cost through trial, had no intention of going to trial. When my brother rejected the state’s offer to reduce a muscled-up charge of “premeditated attempted murder of a police officer” down to some other charge, he insisted on trial, and the attorneys got out.

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The same happened with a second and then a third law firm, although much higher charges for so-called flat-fee representation for defense through trial. My parents filed a fee dispute charge, but never got any refund.

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I researched a good criminal attorney, who charged a $55,000 retainer,233 but he assigned the case to two inexperienced attorneys, who together billed $700 an hour. After my brother’s trial was continued a second time, I flew in and showed up on the law firm doorstep, full of defense ideas. The state was hiding prosecution witnesses — in particular the firstresponding-officer on the scene, Ramon Rivera, a former Yavapai County Deputy Sheriff, and Lee Patterson — an former Arizona State Investigator. At hearings, the prosecutor claimed Rivera had retired (just a few years short of his 20-year pension) and was in East Timor. Later they said he was in the Dominican Republic. Later Haiti. I called the national HQ for a Worldwide Christian Missionary Organization, and they gave me the number of a Dominican missionary and his wife, who I phoned. They were great, and said if I would bring the missionary a $20 car part for his truck, he would go with me to interview Rivera, as Haiti was very dangerous and no place for a single woman. I told the defense attorneys to set up the Rivera interview for three days later in Haiti. They phoned back, saying the Sheriff’s department would produce Officer Rivera in seven days in Yavapai County, Arizona, when he was home on leave. Ha! On the four-hour drive up to interview Officer Rivera, I sat in the back seat, up close and personal, and listened to my brothers ‘dream team’ and was sickened. The young couple was far more interested in each other than in my brother’s defense. I wanted to say, get a room but I held my tongue, both as Darrell Soll (who later committed suicide) and the young grossly inexperienced female attorney admired each other. Both almost missed the critical parts of the Rivera deposition. The judge later said this deposition was a mere “interview” (just before she tossed it out as not admissible, at trial).234 I was not allowed to question at the deposition, (I wasn’t licensed in Arizona) but scribbled notes to Darrell, who was high on testosterone that afternoon and barely looked at them. He was not in stride, and missed critical opportunities to follow up. At one point I interrupted, and that’s how we got the silver bullet. Officer Rivera reluctantly but truthfully said that Deputy Sorenson’s first words to him at the scene were that the suspect exited his vehicle shooting. 233 This was their 3rd retainer paid with the agreement the firm was going to trial. Each defense firm pushed Eric to accept a plea deal. When my brother refused and insisted on a trial to prove his innocence, they quit — keeping their multiple retainers. I think this flat fee scheme is standard practice for criminal defense lawyers — who in 99% of cases, extract a plea from their clients. Prosecutors aren’t pushing as hard as defense attorneys are — to take a plea and give up the right to trial, and sometimes to appeal. 234 This is the reverse of the Henry Handyman ‘interview evidence’ by J. Coffey accepted at trial as a “deposition.’ Same trick, but backwards.

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Unfortunately, Darrell & friend thought it important to squeeze a view of the police cruiser into this same afternoon, to avoid a second four-hour trek, and they, (at the helpful suggestion of the helpful prosecutor) cut short Rivera’s deposition/interview, not realizing that for the rest of the time through the end of trial, the Prosecution would hide Rivera away from the defense and also fail to produce Rivera, as ordered, for the defense at trial. Threats. I had received two anonymous phone threats to leave Rivera alone and stop trying to find him. Both were anonymous male voices, and caller id one call came from the sheriffs department. I was threatened with a bar complaint and a ‘you’re-gonna-get-yourself-hurt’ threat.235 The judge herself made a similar threat of a bar-complaint to me in her chambers during trial. She was mistaken, but assumed I had spoken aloud in reaction to witness testimony. I had not, but the judge didn’t care. Sterling said I would be barred from the trial if I ‘made another peep’, or if I even left the courtroom to use the bathroom. This extremely sensitive judge failed to react at all to a revolving parade of uniformed officers in and out of the back row of court — a daily disruption for three weeks. Law enforcement officers were paid to sit during their shifts to stack the visitor section of the courtroom. Even a retired officer showed up in an old uniform. The officers yawned, read, talked to each other, ate and drank, and some slept through every day of the trial. The judge never appeared to notice — except against the defendant’s (my) family. My mistake (not that I was in charge, nor was this my only mistake) was in accepting the young attorneys that the senior partner (of the criminal defense firm) assigned to defend my brother. In hindsight, I fell I should have raised a ruckus after I saw how inexperienced they were. I should have insisted that the experienced $700/hour criminal lawyer (who asked for the $55,000 retainer and implied he was going to handle this case himself ) actually prepare and show up in court. We were lead to believe, (when the firm accepted the case) that the honcho with the great reputation would be the attorney in charge. We were paying the same rate for these two half-baked lawyers-in-training, and the honcho might have been up to recognizing and dealing with the shenanigans of the politically-ambitious prosecutor (now no longer practicing law) and the specially-assigned replacement judge (who retired shortly after this case) and the state and local law enforcement investigator team, (who investigated themselves.) Almost all the critical state players retired shortly before or after trial. It was an ugly state matter all around, and I suspect (or hope) there was some sense of personal shame over their involvement and role each played in this prosecution. This third law firm also eventually asked to withdraw shortly before trial. Michele Lawson was in a tearful melt-down and unprepared for trial. She claimed her last visit with my brother made her afraid of him. Had I been her client, I would have been angry at her, too, because once again, it was a last minute plea-pressure switch for Eric to plead guilty. The state finally appointed a private attorney as a public defender (which means the state finally paid for a defense attorney.) And the judge gave the lawyer (who was her former partner at the judge’s old law firm) several weeks to prepare for trial. I thought Tom Kelly did a good job, although no one, in my opinion could have been effective given the judge’s comfy relationship and preferential rulings with the prosecutor. Obviously my brother disagreed, as he was repeatedly denied access to exculpatory Brady materials and witnesses for his case (and accordingly, he was denied a fair trial). Kelly made the record multiple times — 5 requests for mistrial but was unwilling or unable to challenge the judge for bias.236 The judge’s sympathy for both law enforcement and the prosecutor, created many trial errors that were the source of many appeals. The weight of the trial system was overwhelmingly in favor of law enforcement. And when it came to protecting their own (even though the deputy was known in the community as a dangerous, overly-aggressive loose cannon on the

235 Note the passive voice phrasing- the victim (me) will get herself hurt, which assigns the blame to the victim, not the perp. In other words, I was making the sheriff’s department hurt me, if I didn’t stop trying to find Rivera, the defense witness they were purposefully hiding from the defense team before trial. 236 I personally think it is critical to remove a biased judge early — or if necessary — at any stage of trial. Every ruling depends on a neutral and fair judge. There’s no sense going ahead with a biased, Insider-appointed one. They do too much uncorrectable damage.

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force237 and he was forced out of law enforcement with a disability pension)238 the other officers either disappeared or covered and defended their turf, no matter what it took. Lost reports, lost bullets, failure to obtain lab results, and lost dashboard video,239 lost police logs, suppressed personnel files and expert witnesses, and a goodly number of other general sneaky investigatory and prosecutor tricks were used to affect both the trial and deprive the jury of evidence needed to make a bonafide reliable verdict. It’s been a real course in defense law deconstructing the transcripts and piecing together the case/judge/wreckage for my brother over 14 years.

PLEA BARGAINING IN AMERICA A letter from another disgruntled defendant to my brother suggested ideas for forcing a lawyer to stay on his case to represent him through trial. Given that even a decade ago, over 94% of criminal cases ended in plea bargains, (which are subject to the approval and therefore the control of judges) the result is a significant percentage of innocent people pleading guilty because of fear and coercion, and because their attorney otherwise will withdraw, taking their money and their trial defense.

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To extent this comes out of attorney greed (not wanting to spend more time on case where they have already been paid a flat fee) or laziness (failing to develop prepare a defense for trial on the merits), it appears many defense attorneys simply take the fee and do the mere work of showing up for pre-trial hearings. They are ‘too busy’ or disorganized to actually develop the necessary defenses, and assess whether or not a prosecutor is bluffing.

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Most superficial criticism of this predominant practice (about 98% of criminal cases plea nolo contender or guilty in pre-trial plea bargains) blame prosecutors, those ambitious legal bullies who seek a winning scorecard for political and career advancement. But I blame judges — they are not on vacation in the courtroom, and have overall responsibility during the pre-trial process to prevent legal bullying, ineffective assistance of counsel, and to protect constitutional rights of the defendants. It is apparent from the statistic and the stories that there is illegitimate coercion of innocent people occurring, because the current criminal justice framework is unbalanced and unfair to criminal defendants. In addition, the trial court judge process is so flawed and disinterested in protecting fundamental criminal defendant rights, that the prosecution imbalance (with an almost 100% guilty-plea record (95 to 98% is the acknowledged criminal plea-statistic)) — is depriving Americans of constitutional rights. No only is the trial system not working, it has become the biggest part of the problem. Not just prosecutorial bias by judges, but the fact that defendants cannot count on the balancing factors provided in the Declaration, the Constitution and the Bill of Rights. Those are words memorized by us — but not practiced in spirit by trial judges. Trial judges were supposed to be the counterbalance when society tips too far in one direction or another but for sentencing policies, they are co-opted by political short-sightedness.

My personal experience with Congress is — it is the weakest of the three branches of government Too internally self-interested since at lease the 1980s. The Congressional Investigating Committees get buffaloed (when the Senate or House seeks to exercise oversight.) This was documented even in the Eisenhower/Kennedy eras, when The Senate Judiciary Committee lost control of oversight. Most documented are the off-the-books, special ops funded by misdirected and concealed public funds. The CIA, FBI and military leaders grew ambition and ran off with our American 3-branch institutional oversight. We seemed to have lost control with the spy-area of government, and never regained it. In fact, it grew into a new global economic and political industry. While Insiders grew and become powerful (institutionally as well as individually), the middle and lower classes become mere consumable units — expendable widgets — to judges — to Congress — and to the Executive branch. Leaders pursue war and more authoritarian control,

237 Privately, we were told other officers refused to respond and back up Officer Sorenson’s traffic stops because he was often out-of-control aggressive with subjects; the first lawyer consulted represented the County, and his first words to my Dad were, Oh no, not Sorenson again! but the judge, even after a successful interlocutory appeal, always refused the defense access to Sorenson’s personnel and other files. As a matter of hiding records, county personnel, medical, and investigative records and reports were scattered in various offices and never collected or turned over for trial despite aggressive discovery efforts. 238 Yavapai Deputy Chris Sorenson already had a history of over-aggressive use of deadly force, and several times drew his gun at routine traffic stops — just as he did with my brother. My brother however, was the only one standing half-naked in the road wearing a holster. 239 The department claimed that despite evidence of a dashboard camcorder, it didn’t exist.

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while the middle and poor classes want commerce and jobs. I don’t think we are too big as a nation — but the problem rests with leaders who think an individual is too small. Unimportant.

DEFENSE ATTORNEYS As to defense attorneys who abandon their clients just before trial, there is maximum social and economic pressure by the state to get the attorney’s client to accept a guilty plea. One defendant describes this practice as “nearly fraudulent.” I would remove the adverb. That defendant, in Arizona federal court, said that the $70/hourly fee paid to defenders was less than the average private attorney fee, and he warned that the attorney might work against a defendant who refuses to accept a plea. “As horrible as all this sounds, your best hope is that the judge would order the state to pick up the tab. You will simply have to be vigilant in watching to see that your attorneys do not throw the case in some premeditated way.”240

INEFFECTIVE ASSISTANCE OF COUNSEL The same friend also suggested the claim of ineffective assistance of counsel needs to be raised before trial! (This is also a topic in the Chapter Tricks After Trial.) “… here is the very little good news…if your attorneys do abandon you; or if they act in [an] obviously detrimental way to your defense for whatever reason, then they will have violated your 6th Amendment right to qualified counsel and equitable defense! This will have created a powerful appellate cause on which to appeal your case. … It is after your rights have been violated by ineffective assistance of counsel…that you would most likely be recognized has having been denied due process. I do know that if you try to claim ineffective assistance of counsel once trial has already begun, the judge will not be happy, as they like to conclude a trial phase once it has started, would likely command that you and your attorney [to] complete the trial phase first before such an argument is raised. Therefore, if there is such a way to claim ineffective assistance of counsel before trial, it must be done before a jury is seated.241

PROSECUTORIAL MISCONDUCT The symbiotic relationship between judge and prosecutor has contributed to the epidemic of misconduct in criminal prosecution in America. Defendants think they have constitutional rights when facing criminal trials, but find they are unable to access them, and are routinely cheated by prosecutors who deprive of the accused of mandatory Brady and other exculpatory information. Defendants are unable to prepare a fair defense. The pre-trial withholding, distortion of investigatory work, hiding witnesses, deliberately fashioning a false impression to the jury, are all acts that judges not only condone, but participate in perpetrating. Over this and the next chapters, I have several first-hand experiences, involving criminal charges against another brother, denied a fair trail and still suffering in prison. But I’d like to point readers in the direction of a nationally known case that has most of the same prosecutorial abuses, which resulted in a remarkable study that every reader and researcher should obtain a copy. Mercer Law Review conducted a study of this study — involving the targeted vendetta and prosecution of Alaska Senator Stevens, resulting in his conviction, later exonerated. The facts were simple — the senator and his wife hired a contractor and paid them $160,000 for home renovation. Prosecutors claimed the renovations were really $250,000, and this represented an undisclosed economic benefit (free services) that the Senator failed to list on a periodic financial disclosure form. The Schuelke Report is the two-year investigation of a second post-trial team of prosecutors ordered by Federal District Judge Emmet G. Sullivan (presiding trial judge), to investigate the prosecutors for professional misconduct. Henry F. Schuelke III investigated six prosecutors, 128,000 pages of documents, and provided Judge Sullivan with a 514 page report in 2012.242

240 From a letter to my brother from a friend, dated 2-18-2000. 241 The courts have held that to assert ineffective assistance of counsel, a defendant must prove his attorney was both deficient and that caused prejudice, regardless of the timing before, during, or at sentencing. 242 Bennett L. Gershman, Subverting Brady v. Maryland and Denying a Fair Trial: Studying the Schuelke Report, HeinOnline, 64 Mercer L.R Rev. 683-20122013. Gershman is Professor of Law Pace University School of Law. Princeton University (B.A. 1963); New York University School of Law (J.D., 1966).

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A sitting trial judge ordering a special investigation after the case is over … on the alleged Brady violations …indicates a “massive breakdown”

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The examples I used, known to me from working on my brother’s case almost two decades ago, are close parallels to the “systematic concealment of significant exculpatory evidence which would have independently corroborated… the defense and his testimony and seriously damaged the testimony and credibility of the government’s key witness.”243 I have used examples I know firsthand, to help readers see how a cover-up investigation works from the initial law enforcement responders, through internal affairs, to the defense attorneys, the prosecuting attorney, and the special appointment judge. There’s are patterns — many centering around intentional Brady violations. Fifteen years later, I read about Henry Schuelke, who was appointed by a judge as Special Counsel to investigate and prosecute criminal contempt proceedings against prosecutors. He discovered the same things in Senator Stevens prosecution and conviction, that I discovered a decade earlier in my brothers conviction.244 Each represents intentional, knowing, gratuitous patterns. The patterns include manipulating investigative reports; jerry-rigging misleading “ethics” opinions; not preparing investigative reports when prosecutors knew the content would be exculpatory; hiding evidence and witnesses; sealing and losing or avoiding disclosure of files; redacting discovery turned over but using a “summary disclosure” method to avoid actual identification of particular documents that would have probably dismissed the case; misleading everyone in and out of court. All “flagrant and perverse misconduct.” Investigators also recognized the phenomenon — where prosecutors didn’t care whether or not the defendant was guilty. Guilt or innocence had no bearing on the prosecutor’s campaign to win — to convict a target — as part of the prosecution’s sport and prestige of winning. A similar case, the Duke Lacrosse Case, another high publicity case, supports the idea that this is not just a unique prosecutor situation. I’ll detail my brothers case, one of thousands of nobody-class of cases, where law enforcement, prosecutors, and the judge, join together to railroad a targeted defendant in a process and game so lacking in fundamental fairness, that truth-be-known, is cowardly and un-American. The team with all the resources, systematically cheats those that have few or none.

5

Some states have responded to the problem of prosecutor ethics misconduct. They are studying to how to regulate and punish it. Sigh. In New York, prosecutors retaliated against state legislators studying prosecutorial and public corruption — by forming the Morland Commission to study the studiers. A small summary account of the study-committee task force and the bar/special interest retaliation — the war of the study committees — indicates external attempts to reform prosecutors will be fraught with prosecutor retaliation.245 The inherent power of judges to supervise Officers of the Court — is another answer. In the meantime, there is study and more study, while innocent people languish in prison unable to access new trials, prove prosecutorial misconduct, and access exoneration and freedom. Conventional wisdom246 suggests this prosecutor misconduct in hiding Brady material, while using the weight of the State to frighten and force guilty pleas from innocent people, is an outgrowth of what may well be an unconstitutional government political scheme. The War on Drugs was a failed campaign in the 1980s that escalated to the Tough on Crime legislative policies for the criminal law system. The unintended consequences of these failed national policies have resulted in the current scheme/policy to systematically coerce frightened defendants to waive their 6th Amendment Rights to fair trial with a jury. The use of state power to coerce defendants to forego constitutional rights is inauthentic. To the extent that the arm of the state represents a pattern of unethical coercion by Officers of the Court, judges have a duty to recognize and prosecute state acts that are both unethical and unconstitutional.

243 Schulke report, Report to Hon. Emmett G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated Apr. 7, 2009, In re Special Proceddings, No. 1:09-me-00196-EGS (D.D.C. Mar. 15, 2012), available at http://legaltimes.typepad.com/files/Stevens_report.pdf 244 Semantics played a role in the 6 prosecutors not being criminally charged — only findings of “reckless professional misconduct, resulting in two attorneys being suspended without pay for 40 days and 15 days respectively. A wrist-slap, not a deterrent. 245 See Huffpost Crime, New Commission to Regulate Prosecutorial Misconduct, May 20, 2014. 246 Wikipedia, the free encyclopedia on “Plea Bargaining in the United States”.

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Friedman, in his Schulke Report law review, recommends passing an independent statute (or enacting a Rule 16 Amendment to the Federal Rues of Criminal Procedure.) I vote for external rights and with external oversight, while finding Federal District Judge Emmet G. Sullivan to be perhaps the most extraordinary judge I’ve come across. Although even he seemed powerless to create much of a deterrent.247 Two weeks loss of pay, hardly seems comparable to the hell the defendants went through, the costs they spent on their defense, the time incarcerated, the loss of job, career and honor. The national ridicule and public humiliation. The personal sacrifices of family, friends and supporters. Two weeks loss of pay seems hardly a deterrent at all, and I see so many other Officers of the Court engaging in this kind of sport — where they risk nothing, while heaping abuse, stress, and humiliation on opponents, just because they can. “Self-serving attitudes of innate superiority to their victims seem to be quite universal among all oppressors.”248 Here’s how the system unbalanced, arguably unconstitutional prosecutor system currently works. By the current statistics, this happens between 95 to 97% of criminal cases, to force everyone, innocent and guilty, to plead guilty: a. Prosecutors pile on a staggering number of duplicative, seemingly awful-sounding criminal charges (for example, my brother was charged with “premeditated attempted murder of a police officer,” which was so obviously inflated, given the circumstances, to terrorize him into accepting a plea. b. Judges are passive in that they rely on (often ineffective) defense attorneys to develop a defense; when they fail to do the pre-trial work necessary for trial, the judge releases the lawyer. c. There is no compulsory prosecution of cases/charges brought by the state. d. The state has comparatively unlimited prosecutorial resources. State lawyer/prosecutors and even the investigators, clerks, and support staff are all state or federally salaried, and have free access to forensic and investigative tools and experts; they also control the evidence. The opportunity for illegal manipulation is endless. This lop-sided process is so great an economic disadvantage to a criminal defendant — most of who cannot privately pay for or match the State’s economic resources — that contributes to the immense fear, even for innocent defendants, built-into the present system . e. Although in 1970, at the start of Nixon’s era of national police/state build up (to retaliate against student protestors at Kent State and Jackson and other political protestors — aka “state enemies,”) the U.S. Supreme Court found that plea bargaining could be constitutional with certain safeguards.249 As the safeguards have been whittled away or abandoned, we citizens are left, a half-century later, with an out-of-control prosecutorial practice on steroids, and a lazy or complicit judge-system, that largely rubber-stamps fear-coerced pleas. The Brady protections are largely forgotten. f. Innocent defendants are frightened into taking plea deals for ‘lesser’ sentences, because the cumulative number for over-plead, duplicative charging is staggering. g. This system focuses primarily on the poor, legally uneducated, and under-represented.250 At the same time, the court’s inability to deal with free-defense patterns of incompetence means the justice system has bowing almost to the point of prostration to the unfair weight of the state, as applied by prosecutors. A man I know was charged with 99 counts of variations of child sexual abuse of his own children. The family was nudist (Christian nudist, to be sure) and the parents, in my observations, were both strongly religious and loving parents of eight pretty cool children that were home schooled.251 The children were teens through emancipated adults at the time of charging. It was the second time in less than a year that a middle-of-the-night swat team arrived at the Cox house in response to allegations by the father-in-law, a strict fundamentalist minister with no 247 9th Circuit Judge Alex Kozinski also ranks at the top tier for his recognition that “the culture of prosecution has changed…no longer is prosecutorial misconduct “the exception” or “a rare blemish.” He called hiding favorable evidence that could prove a defendant’s innocence — “a perverse form of misconduct,” which “has reached epidemic proportions.” 248 Holmes & Meier, Ch. IV, Victims, the Fallacy of Innocence, 77. 249 Brady v. United States, 397, U.S. 742 (1970). 250 This dynamic of prosecutors focuses primarily on the nobodies, with an occasional rogue strike against a known Somebody. Those are the cases that blow up in the national media — Senator Stevens case, or the Oprah case, for example, because there is adequate funding for a defense. Not equal funding with the unlimited state resources, but enough to make the case catch the eye of Huffington Post, or some other reporter. By studying the elements in the sensational national cases, the same corrupted prosecutor patterns exist as in the nobody criminal cases. Divorces of judges are portals to civil trial corruption patterns, and Senator Stevens is about criminal case abuses. Together, they help paint the big picture. This is not about a few rotten tomatoes — it is the whole farm. 251 See a description of this family living lifestyle in Living the Southwestern Lifestyle: How to Have and Maintain Peace of Mind, by Matthew C Cox (2011).

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tolerance for the family’s departure from his church. Matt was threatened with hundreds of years of sentencing, and eventually, after three years of waiting for trial and little public defender defense efforts, he pled nolo rather than subjecting everyone to a longer and uncertain trial process. Everyone who knew Matt (with the exception of his father-in-law, who asked the sentencing judge to order Matt into general population so he could be raped and killed) was furious at Matt’s decision not to fight, not to go to trial, not to make the state prove the 99 charges. He took the 19 year prison term. The case developed during my study of Enneagram-type personalities, and this Type 2 man was more likely that any other type person, not to put up any fight. It was an inbred characteristic of a number 2 — and for Matt, it was both his strength and his sin. His kind of pacifism is almost a foreign language to me — as I have since early childhood had a practice of helping underdogs and taking on bullies that target weaker people, and those unable to fight for themselves. My growing awareness is that our present legal system has no room for ballerinas or artists, helpers, and gentle and creative types. It is a pseudo-intellectual gladiator ring, In fact, once the legal system gets hold of one of these other types of people, the dominate authoritative, egotistical, self-preserving personalities that have come to populate the world of law, simply chew them up. For Matt Cox, he was barely an appetizer. I believe Judges bear the responsibility for this corruptive illegitimate practice of prosecution. A judges’ role is not to rubber stamp or be a friend to the state prosecutor. In theory at least, judges have an inherent independent duty to uphold fundamental defendant rights against state practices that usurp them. And we saw at least one judge respond, although prosecutors slipped through the fingers of their own criminal prosecution.

CHAPTER

Too bad there isn’t a national economic vote, like selling off stock shares in judges, that could register public distain for judges who comply with or ignore with this dominant prosecutorial practice.252 A plummet in the value of court stock would send the message — one that no single defendant, especially the poor or disenfranchised, could send alone. The so-called normal process for trying to correct this kind of Insider abuse — multiple appeals — is simply a grossly expensive, almost inevitably ineffective that, even it a defendant could overcome those burdens, still will not hold the Insiders accountable for their unethical behavior. It’s impossible I think, to leave obstruction of justice out of the equation, yet I see no cases with this charge applied either to the prosecutors or the judges involved.

5

74 PAID ALTERNATIVE JUDGING

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Forms of alternate judging involve the same inside-professionals.253 That often means the same authoritative personality type will sit in judgment, using the same elite insider biases, only you will have to pay them. Large hourly billing, retainers and a high overall cost — but without the requirements of disclosure, rules, or even competence. What you may expect is that the arbitrator will likely be connected, so the same ol’boy concerns of court are present. Arbitration is a short-cut to trial, but I recommend thoroughly questioning and investigating the background and connections of those proposed to deliver the arbitration, for insider connections. It is expensive, cuts off rights, and avoids appeal.

252 When the Monsanto President and CEO Hugh Grant was fined for bribing Asian government officials to waive strict laws on planting geneticallymodified cotton seeds in Indonesia, GM stockholders dumped 22% of their shares world-wide. The Ecologist, Vol. 32, no.2, 13. Funny how the wealthy and powerful get fines for cheating, fraud, and bribery, but not criminal prosecution. And officers of the court, also using cheating and obstruction of justice, get unpaid leave for a couple weeks. 253 So while looking at how to curb and punish prosecutorial misconduct, why don’t we re-visit our national social policy of increased “criminalization,” which exploded with the great lock-up social movement during Prohibition (resulting in an eight-fold increase in incarceration.) The economic incentives and growth for both law enforcement and the legal system encourages the over-criminalization of ordinary citizens.

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Arbitration requires almost as much work as trial, and the proposed arbitrators will be attorneys (some with extra training), who believe they are judges. Imperious demeanors and contemptuous attitudes are common. They often have a long list of demands for issue summaries, evidence, documents, witness and expert production, before they actually conduct the arbitration. And of course, payment of the fees. There usually is no right to appeal. Large corporations, especially financial and mortgage lending institutions often put mandatory arbitration requirements into the fine print of their adhesion contracts. Their list of proposed arbitrators are on speed-dial. A New Hampshire Insider hot-shot has proposed a new fast-track state court system, for the rich, businesses and corporations, willing to pay big bucks for fast, quiet resolution, outside the regular legal process.

COMPULSORY OR NOT? The alternative process may or may not be compulsory. In a tightly closed court community, my experience has been almost always negative about the court’s appointment of retired judges and insider attorneys — those men proposed by my opponents and the presiding judges, because the patronage system favors insider outcomes.

FAMILY MATTERS — MEDIATION After working and studying the history of family law for two decades, I am convinced that most family law matters are best approached through mediation or some family-centered decision-making. But not all mediators are trained or good at this kind of job. There are therapy-type mediators and there are lawyer-mediators. The best family law mediation may work in teams — male and female, over a multi-session period, where generally lawyers are not present. Lawyers are good at fueling feuds, not settling them. Each side will consult before and after mediation with their own lawyer, and may have agreements discussed or reviewed before signing, but the partner/parents decide their own breakup and ongoing child arrangements. These are often emotional sessions and hard work for the family254, but it keeps the family funds intact, and as I used to say to prospective clients who wanted to fight — you can send your children to college or mine — meaning the high overall cost of litigating divorce and custody of children can consume all the family savings and assets. Divorce litigation has no relevance to the value of so-called ‘services received.’ For the type of cases handled by our law office, the cost was always high and the cases never simple. It was only after I left law that I found mediation — and understood that life after marriage (especially if there were children involved) became out-of-control because of lawyers and judges. Court is almost always unhealthy for the families and for individuals involved. So why not use a better system? Because it doesn’t fund the lawyers.

CRAZY DOESN’T MEAN DIVORCE PATHOLOGY When a family dynamic involves a pathological problem255 — it can lead to a pathological divorce. Then, the wielding the power of judges requires some understanding of the potential pathology of lawyers and client/spouses as well. It becomes important for safety, for fairness, for balance. The problem when a judge does not start or remain neutral — but inserts himself and the favor of the court into case handling. Not only does it unbalance the court process, create judge-induced unfairness, but it exacerbates harm. The judge and attorneys join forces. In my case, I ended up divorcing a small but influential cult, which first perceived me as a doormat, then an avatar. Actually a crime victim — but with no one noticing their crimes. There is no confronting an abuser, if the abuser is called judge. Judges cause great harm and excessive pain by not doing their jobs fairly and without favoritism — latent or not.

254 I usually try to interview (privately) each person who shows up as support for the two parents at mediation. That might include grandparents, children, friends, as I think that the more people who are vested in the decision, the better the chances are the outcome/result will be honored and supported. 255 It may be important to assess just how crazy people getting divorced are. I used to pass out copies of CrazyTime: Surviving Divorce and Building a New Life, by Abigail Trafford, Harper-Collins. The book describes the stages of divorce — similar to grief stages. If a client got hung up for more than six months on any one stage, I’d insist they go for professional therapy to keep moving through the cycle.

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Lawyers are like reverse-firefighters — they either fan the flames or have to get involved in the dangerous process of fighting the flames. It’s a self-perpetuating process where the client can become almost immaterial to the legal players and the institutional process.

FALSE MEDIATION Most attorneys are not trained in family mediation (or any other kind) and by nature, would rather fight than settle. They will mis-use the mediation process to extract information for their own client, and improperly take advantage of their opponents to obtain an unfair settlement.256 One case I reviewed handwritten notes about what the mediator did and said. The so-called mediator appointed by the judge was the plaintiff’s attorney! He urged the court to order everyone into mediation at the first court hearing (he was the only attorney at the time out of four separate/defendant/parties). This lawyer not only ‘educated’ everyone with patently false ‘law’, but repeatedly told the four parties they would lose. He went around the room, asking everyone leading questions and determining their defenses. All parties were ordered to split equally the cost, which ran thousands of dollars for one so-called mediation session.

THERAPEUTIC AND HOLISTIC MEDIATION PROCESSES

CHAPTER

I have seen some difficult cases resolved for the parties using processes that are kindness-based, where the mediator understands the importance of creating a safe environment and managing the process. Clarifying and assisting the parties to understand and deal with their issues.257 There are alternative names — compassionate, therapeutic, alternative dispute resolution. Each of these has an element of respect that I find lacking in lawyer-judge mediations, which have an adversarial tone and atmosphere. Personally, I wonder if this is not from the ego centered-adversarial atmosphere of law, where the authoritative posture takes precedence over getting the problem solved or the job done in a respectful way. Kindness, individuals, and long-lasting effects are simply not on the court’s radar. As collateral issues, they have zero importance, and they don’t generate much institutional revenue, so on the power-meter, they don’t register.

INCLUSION

5

Social family problems require an extended family solution that current divorce court process simply doesn’t comprehend. So cases start and end badly, then take on a life of their own and go on for decades because of the lawyer-judge dysfunction that gets intertwined, then becomes vested, into the individual’s family problems. When I was practicing law, I didn’t see many easy divorces, and did no uncontested ones, so my experiences, both professional and personal, are always on the extreme end of the difficulty spectrum, and I never questioned it until after my first mediation course in Boston in 2000. Warriors do warrior poses — but is it really good for the clients? Or on a larger scale, is it good for the economy and public policy and society to fuel/fund these personal family disputes by adversarial legal people and processes? I now believe it is not. Divorce is good for judges and for lawyers, and the subtle and not-so-subtle financial incentives in law promote the growth of ugliness and expense that helps no one outside the legal institution. The American divorce process is a closed vertical system, with all the fears and power-problems of other highly authoritative social systems. It is rigid, considers individuals to be insignificant, and substitutes group rules and conscience for individual responsibility, conscience, and duty. It imposed from above, and individuals are told to obey. It’s not working well for anyone except the privileged insiders who are allowed special access or who get paid by the process.

256 An entirely different mediation/arbitration scam is described in the appeals chapter — the giant class-action settlement cases. 257 The best trainer I’ve had is a Santa Fe mediator, Mark Bennett, author of The Art of Mediation, published by the National Institute for Trial Advocacy (2005).

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WHAT MEDIATION CAN DO THAT JUDGES CANNOT The end of this chapter has a long detailed example of a judge exceeded his authority to order special handing not provided at law. I am critical of the whole made-up law process in my divorce case — where the judge went rogue. On the other hand, there is room for informal creativity — just not in court. One example is Florida Judge Thomas Lynch, — who did not instigate the off-the-books solutions himself — but he did refer the following case to mediation. Three old men — two pastors and 91 year old258 fed the homeless — outside — despite a new local ordinance prohibiting outside food distribution (and a Ft. Lauderdale mayor who wanted Abbott arrested.) The men were arrested and faced a fine and jail time (60 days, $500 fine each) when — pre-trial — the Judge ordered the case to mediation on the arrests, and a temporary injunction on the ordinance.259 This was a criminal case. I’ve seen remarkable out-of-box solutions in criminal, civil, juvenile, domestic violence, and child custody — where the judge is the facilitator — but not the authority, of an out-of-box solution the parties work out — respectfully — between themselves with the help of a mediator. Abbott and his Love Thy Neighbor Fund went through three trials and two appeals before getting the ordinance overturned as unconstitutional.

QUAKER MEDIATION My first experience in solving legal problems with extended family members involved a juvenile-court-ordered family therapy session with New Hampshire family therapist Rosemary Brofus. She arranged a meeting at the Quaker-House in Concord, and utilized a Quaker-based family circle process that had remarkable results. In all, 17 people showed up and were included in a big open-room discussion, directed by the therapist and me (as the court-appointed attorney for a juvenile.) I was surprised the teen boy showed up late with a punk-dressed friend in tow. The mother and father were divorce and had not talked for six months. It evolved into a highly successful outcome in a juvenile court matter. The child agreed to submit to an alternative wilderness treatment program, and the parents agreed to seek help for three younger sons, who exhibited alcohol-fetal symptoms.

NAVAJO PEACEKEEPING The Southwest has a broader, less structured atmosphere about problem solving. Although judges and lawyers have the same or an even stronger testosterone approach to cases,260 there is a need to factor in nature in a land with harsh natural elements. Nature is the ultimate arbitrator of problems. People who have tried to live using eastern ways, but without calculations for raging sand storms, deadly flash floods, scorching sun, and other ways of nature, may find themselves, even in the 21st Century, worn down or dead. Annie Prolux writes darkly about this cultural cloud that competes with the intense desert sun. It took me years to appreciate her stories about the physical brutality of living a southwestern lifestyle. Case by case, the Navajo justice system uses a simple timeless and horizontal system for tribal disputes that involves this same extended network of people that I found in the Quaker method. It is inclusive — allowing anyone with an interest in the family to join in a discussion/resolution circle, which may last several days and includes ceremony. Chanting, prayer, dancing, and fire are an alternate universe where the problem gets dealt with, completed, and ends with a harmony ceremony. It is a mediation process that is direct, relatively efficient, and grounds the parties back into the community — for a just result, and support, and enforcement. 261

Navajo Justice is a process of asserting positive values — which translates into English as “compassion, cooperation, friendliness, unselfishness, peacefulness and all other positive values that create intense, diffuse and enduring solidarity.”262 258 Arnold Abbott of Love Thy Neighbor fund, Inc, and Pastor Dwayne Black and Pastor Mark Sims. 259 Abbott and his Love Thy Neighbor Fund went through three trials and two appeals before getting the ordinance overturned as unconstitutional. floridagal, Daily Kos, November 8, 2014, www.dailykos.com/story/2014/11/08/-Arresting-Arnold-Abbott 260 Southern New Mexico reminds me of the culture of the early 1950s. 261 Since 1981, the Navajo Nation formally re-asserted its sovereignty and began resurrecting traditional customs, including Navajo language, justice and laws. 262 Reference, Nelson & Zion, Navajo Nation Peacemaking, Living Traditional Justice, Abbott and his Love Thy Neighbor Fund went through three trials and two appeals before getting the ordinance overturned as unconstitutional. University of Arizona Press (2005) at 157.

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There is nothing like it in the American legal system process — probably because it does not require vast sums of money, and it does not promise to enrich anyone outside the circle with money or power. But it is good for the people involved, good for the community, and good for the children. It treats people with dignity, and when it is all over, leaves them productive in the community.

75 JURY SELECTION

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A judge’s ability to influence jury selection initially stems from the judges who refuse to exclude people from the pool who indicate personal bias, or other actions which affect the jury pool.

INFLUENCING JURY SELECTION Judges and bailiffs routinely try to preclude the public from watching the jury selection. They may say the room is too full with prospective jurors; there are no empty seats; the empty seats are reserved; or they may put a closed session sign on the courtroom door. They may rope off all the seats in the courtroom or lock the doors. But jury selection is always public under the Constitutional right to a public trial. And it is important to have observers present during jury selection to insure there is no improper influences or obvious exclusions. This is an issue that appeal courts reverse on.

CHAPTER

There are countless examples of improper influence during jury selection — which range from including those who blatantly announce they have a preexisting believe the defendant is guilty, to judges who permit relatives of court employees or the sheriff’s department to stand as jurors.

RACE, GENDER AND CLASS PRECLUSION

5

Judges have systematically excluded or allowed parties to orchestrate the preclusion of races and classes of people, such as precluding all blacks or other racial targeting or religious targeting. Or it is also a more subtle form of discrimination, such as excluding all Jewish or females, or college-educated, or other characteristics including education and wealth, or belief in the death penalty, or religious beliefs. Targeting discriminates against jurors and defendants. The principle of a fair and impartial jury is one representative of the community — so the bias can be built into the forum — which is a judge’s responsibility if the forum prevents picking a fair jury — such as in the Pame Smart case, where months of pretrial sensationalized media distorted a defendant’s image into an cold, unfeeling, Ice Princess/or over-sexualized school teacher. Those two media images tainted the entire jury pool with a pre-trial impression of guilt. The judge did nothing to control or compensate, though he heard statements that most jurors discussed and presumed guilt, in advance of their selection on the jury. In 1960, a technique to keep Negroes off juries in during the civil rights era was for prosecutors ask prospective jurors if anyone opposed the death penalty,263 then pre-empt them. Witherspoon in 1968 recognized the discriminatory purpose and permitted follow up voir dire264 of those jurors to determine if the belief was flexible enough to permit the prospective juror to be fair. The U.S. Supreme Court disallowed prosecutor pre-emption in those cases.

PICKING AND ALLOWING JURORS WITH BIASES Civil Rights Attorney Morris Dees265 identified another prosecutor abuse — telling prospective jurors in a misleading way that although the death penalty exists and is possible, “to ease your feeling, I might say to you that no one has been put to death [in this state] since 1961.” 263 Morris Dees claims most Blacks don’t believe in the death penalty because they experience racism disproportionately in arrest, charging, guilty verdicts, and sentencing. 264 Voir dire (direct questioning prospective jurors) is not allowed in every state. Advance questionnaires are supposed to do that. 265 Morris Dees, A Lawyers Journey, at 150 on the Taroboro Three case.

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The North Carolina Supreme Court agreed with Dees solely on this issue of misleading jurors. They granted a new trial in a death row case. The case was about whether intercourse was rape or consensual sex between a white woman and three young black men (‘the Tarboro Three’.) Dees helped acquit all three at a trial with a hostile judge266 by an all white jury — at the second trial.

JUROR SANCTIONS — CHANGE YOUR MIND OR ELSE “Lori Blumke thought she was doing her civil duty when she told the judge she had hard feelings toward police. She admitted it might taint her ability to be impartial. Judge David Buter, chief judge of the Grand Rapids District Court ordered her to be a juror and to perform 24 hours of community service.”267 “Buter insists he did not punish Blumke but offered her a choice between community service or changing her mind about police…”

JUROR CELL PHONE CONTEMPT Out of a pool of jurors waiting to be picked, someone’s cell phone went off, and the judge — New York’s Niagara Falls Court Judge Robert Restaino got hugely angry — when the culprit didn’t own up to the phone, the judge locked up everyone for contempt. That was 46 people. He also called back 11 defendants he had already released on their own recognizance and increased their bail. Most were held a couple hours.268 Courts have been going crazy with cell phone contempt for anyone in court. Some are banning them; a young man who was caught texting was incarcerated for contempt and replaced on the jury.269 I recommend that because court staff is crazy mad about cell phones, and judges are calling it a crime if they ring in court — just leave them outside.

76-A TRASH CONTEMPT AND OTHER EXAMPLES NOS

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(THAT’S WHAT NOS MEANS)

My personal background of before-trial judge tricks and other set-ups.

DESTRUCTION OF TRIAL EXHIBITS BY THE JUDGE OR COURT PERSONNEL JNad destroyed some of my hearing exhibits271 by sua sponte ordering a general removal of trash exhibits from the court record; Someone at court quietly and without notice, removed three exhibits. I wasn’t notified or allowed a hearing. I discovered my exhibits were gone when I checked the file for appeal and saw handwritten corrections to a court exhibit list. When I searched the court record, three were missing. The missing documents were a handwritten letter between Chuck and our receptionist, a letter from Attorney Tarbell listing substantial improprieties in the expert’s business valuation calculation, and a document required in discovery production, but thrown away instead.

266 This case has several examples in the next § of how a judge can seriously influence a trial. 267 Doug Guthrie, Truth Hurts for Potential Juror, Grand Rapids Press, September 2, 2002. 268 The judicial review board called him a petty tyrant who acted without any legal basis. 269 Salem Oregon Judge Dennis Graves. 270 NOS is code for not-otherwise-specified — a catchall psychological term in diagnosing mental conditions. 271 One of my staff found several draft handwritten letters and notes from my husband to the office receptionist, begging ‘pretty please’ for an overnight, and another, making cash-only arrangements for a longer tryst in Florida.

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EXHIBIT DESTRUCTION BY THE OTHER PARTY JNad sua sponte ordered I was to give all the trash collected back to Chuck to destroy. I already talked about that, but want to pull this disjointed narrative into better perspective. So bear with me. The take-away is in here somewhere. For the few pre-trial hearings that JNad actually conducted in court,272 the subject matter ranged widely ranged over a lot of surprise topics not noticed. His hearings were always a free-for-all, sometimes with large packets of documents slammed on my defense table at the last minute — exhibits the opposing attorneys claimed were for immediate emergency hearing. JNad would accommodate, in a kind of stream of consciousness ambush, where I and my attorneys had no time to read or prepare a cogent response. Rules about proper procedures didn’t matter. The hearing orders all went in one direction. Against me. They contained lots of self-serving dicta and convoluted rationalizations and golly-gee moralizing by the judge about how well the GAL/ Malcolm and he were doing in ‘a tough case.’ By that, they meant me. I wasn’t cooperating and making it easy to destroy me. Golly gee. For example, there was a desperate court focus on having me describe aloud, how many boxes of trash I had? How many papers? Would it fit in a car? In a car trunk? In a suitcase? In a banker’s box? How many bags of trash were collected altogether by private investigators?273

CHAPTER

We did trash collect for only about three weeks, but it was enough. I listed nothing from the trash as a trial exhibit, but had produced Chuck’s fat felt-tip handwritten letters already at a hearing — as tangible proof of perjury in his pleadings to the court, and as support of my answer, which alleged adultery. I didn’t plan to go down that road in my case-in-chief, or to release thrown-away but obviously private documents. The law on abandonment of trash is quite clear, but the judge avoided all direct arguments or any opportunity to prove that my trash collection was legal — with the case precedents and statutes. JNad didn’t want to hear my facts, cases, or law. But he accepted a variety of wild unfounded accusations and hysterical guesses from Chuck and the young attorney-interveners. This kind of excitement is what this judge craves — the racy sensational nonsense. The drama. It was my intention to use documents harvested from the trash only for impeachment, if necessary. But other recovered materials also demonstrated collusion and set-up to fraudulently take my business and confiscate my assets even before filing for divorce.

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“Cuckolded” is the picturesque phrase used in novels.

I didn’t say anything in court in response to the demands for information, intuitively feeling that I was being targeted for jail for direct contempt.274 So I mostly stayed silent. Remember also, this was an ambush hearing without notice. Like the Bonser family case a decade earlier, JNad pulled out his same tricks, including a daily contempt fine, assessed every day until the target complies with the order.275 I think the Supreme Court capped my $500 daily fine after a couple months. At the time, I knew nothing of Bonser or other coercive-fine cases. In response to my interlocutory appeal (to reverse the trash order and remove JNad), the Supremes ordered me to bag up my trash and deliver it to them at the State Supreme Court (instead of Chuck.) It made no sense. I can’t imagine justices searching through trash for incriminating love notes of a former brother judge. 272 JNad devised an alternative system to court-hearings — I was to file with the GAL for pre-hearing rulings, prior to filing in court. 273 Of course, I couldn’t know that this was in preparation for upcoming judge orders authorizing the GAL to raid my house to find and remove trash. 274 Direct contempt is arrest-able on the spot if you commit contempt in front of the judge. Indirect contempt is not — it’s a motion/report third-hand. 275 The state distinction/difference between direct and indirect contempt was defined in the Bonser case, which interestingly had the same two judge players — JNad was initially the conflicted trial judge, and my husband, the ‘vacationing’ supreme court judge. He used his holiday vacation time to sit in a lower court for a temporary hearing on contempt.

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Anyway, by this time, there were no ‘bags of trash’, as my staff and I already sorted through everything that had been collected. We selected documents, ironed, taped, and organized the papers into folders and filing cabinets by subjectmatter, ready for impeachment. We burned the rest of the material. There was an un-godly amount of material to wade through, largely because one of the investigators blew his early morning trash pick-up. That morning, about 4 a.m., I advised the investigator of the address of Chuck’s new condominium and the location of the community dumpster used by condo residents. A commercial transporter picked up trash twice a week about 7 a.m. I knew (in addition to copious amount of kitchen provisions, dishes, silver, crystal and groceries) Chuck had taken all the extra cartons of plastic trash bags from under our kitchen sink. “White bags, yellow or red drawstrings. Chuck will throw a bag into the dumpster when he leaves his condo for work. Keep surveillance and grab that bag from the dumpster.” Unfortunately, after several hours of surveillance, the man decided to go for coffee, and missed the pickup. “Don’t worry,” he said later that morning. “I fixed it.” Turns out he drove around the neighborhood, and upon finding the Waste Management truck, offered the driver $50 to bring me the entire load. The driver dumped his load on my front yard — a virtual mountain of trash. With many white trash bags. In addition, we also had trash from the office building dumpster. Often those dumpsters were overflowing and bags piled up on the asphalt. We took pictures of the overflow. It was a 40-tenant office building. The first week several different Private Investigators picked out the bags from the office dumpster; the next two weeks Henry the Handyman picked up bags from the office. Henry was a very special gentle person, who had worked loyally for me at home on the extensive house remodeling and rebuilding that began about four year earlier. Later, when that work dried up, he did handyman and outdoor gardening work, and to keep him employed full time, we added janitorial services for each of the two law offices — two floors in Concord, one in Manchester. He was to empty the trashcans each evening. Put the trash into black garbage bags and throw them away. He was honest and hardworking and loyal. For my Manchester office, I had no idea what he did with the trash, but in Concord, there was the parking lot dumpster. Eventually he decided (on his own) to stop throwing the trash into the dumpsters, and just took it directly from the elevator to his truck. It wasn’t a big deal, until Chuck’s team decided to call it theft of trash, and the judge piled on, claiming I had committed an egregious ethics violation. Even more egregious than the criminal balloons. They engaged in a lot of speculation — wildly so, and seemed to feed off each other’s ludicrous ideas. When you are involved in this, it seems petty and ridiculous that anyone could actually make up or believe this stuff. They’re playacting. But then the judge adds his weight to the playacting, and his authority makes it real. Stupid, but real for contempt of court. Chuck seized on Henry — physically and legally (undoubtedly in retaliation) — by alleging in court that Henry and I had … something physical between us. Actually, we did. We both worked our butts off gardening and building projects at home. For example, we spread 20 dump trucks of topsoil on a river-front sand dune, and then sodded and seeded it to make a grassy yard around our pool. We put in flower beds on the dune, and assembled rock walls. But that was the extent. But like water and gravity, Chuck’s natural inertia (kind of a reverse gift) is to find cracks and weak joints, then drop down to squeeze pressure at the lowest places, to strike at things I cared about — family, clients, friends, business associates — he tried to burn each of them, to hurt me. It became necessary to distance myself from many of the people and things I loved, because Chuck’s instinct to hurt was guided by the degree of caring he knew I had for others. He went after each one in different legal and psychological ways. The only way I could protect them was to disengage or sever ties. Help them, if I could, get safely away and move on …

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THE BACKSTORY By way of history & perspective, my husband just disappeared on Thanksgiving Eve, 1996. He left a vague almost unintelligible handwritten note saying I hope this makes you happy. Earlier that morning (before noon) in secret he had most of our law office staff down at our house — the one I put my life savings, earnings, and retirement funds into purchasing and renovating. It was on four pine-wooded acres, remotely situated on a sandy bluff overlooking the Merrimack River and the gold-dome of the state Capitol building. Our law office was the corner penthouse of the Christian Mutual Insurance Building across the river from the Capitol. It was a half-mile to the Supreme Court building, and a mile walk downhill to work. With four trucks provided by our client and his now-divorce attorney, Tony Tarbell and son, my husband and the kid-lawyers276 — all friends and co-workers — removed almost everything of any value, financial or sentimental, and moved it to Chuck’s new secret condominium about a mile away.277 And Chuck just disappeared. I was at work in the Manchester office, oblivious to the scheming and looting. It was the eve of my favorite holiday weekend — Thanksgiving

CHAPTER

I didn’t know where he was, nor did I know anything about his new separate life. He had dropped a divorce libel with the clerk of court the day before. The clerk later told me she didn’t stamp it in, but just put it in the top desk drawer, by order of her boss’s boss, the Chief Administrative Judge. It wasn’t docketed, nor assigned. She said she had never seen that happen before, and that everything about this case since that first day was irregular and secret. In my alternative world, Chuck and I had plans for a full and social Thanksgiving weekend and beyond. We had purchased tickets for pending trips to Alaska and Paris. And for Thanksgiving, had sent plane tickets to our four ‘blendedfamily’ children to come home. We were taking them and their friends for a pre-paid skiing vacation at Killington Resort in Vermont. Skiing was followed by a formal Scottish Ball Saturday night, where we reserved a table for ten. I was cooking dinner for the 24 people invited for dinner Thanksgiving Day. 350 engraved invitations (ordered for a Christmas holiday gala to benefit Toys for Tots) were waiting to be hand-addressed by a calligraphy artist (Zapf-chancery font.) Scottish bagpipers had been arranged, and The Marine Corps Band was to play for the Christmas gala. I arranged for a crane to decorate our driveway with 10,000 little white lights. I thought we were going to sparkle.

5

Thanksgiving Eve. I arrived home after dark after a long day both at the office and shopping for the feast the next day. I expected to be up most of the night preparing, plus had two drives back to the Manchester airport — to pick up children, each arriving separately before midnight. I was excited, anticipating a reunion with most of the people we loved and cared about, including some staff and their families. It was a special time. The house was dark as I unloaded two dozen grocery bags onto the front porch. It flickered across my mind how strange it was for Chuck not to come outside to help me. Then the front door was unlocked, the burglar alarm off. The house dark, and largely stripped. Wild thoughts suggested we had been burglarized and Chuck was murdered or lying unconscious somewhere in that enormous house. I ran room-to-room, flipping lights, frightened to find him. To help him. After my frantic search up and down stairs, through 25 rooms, I found his note. There had been a light snowfall and the yard around the house had many footprints and tire tracks — evidence of a routing from all exits. A routing that occurred sometime between dawn, (when I had left for Manchester) and noon. Seven months later, just before trial, Chuck produced dozens of 8 by 10 color photographs, all taken during his evacuation. He and the young lawyer-team pre-calculated to take photos for trial evidence. There were color blow-ups of my closet drawers (opened) and my clothes. Personal things. Paintings and photos rehung, furniture repositioned

276 Chuck has already secretly arranged to transfer discounted ‘shares’ of my law practice to these four young lawyers, who combined had less than a decade of experience. 277 Other judges in divorce have used Ol’Boy Bill Brennan to pre-plan a secret divorce a year or more in advance of filing. Bill and Accountant Mahoney represented Mrs. Thayer and her mother for estate planning two years before. The duo showed up in several ol’boy cases. I suspect my husband used Attorney Tarbell because they traded services. In these examples, a compliant divorce judge found no conflict of interest with the divorce teams the ol’boys assembled, even when the husbands hired either an attorney or the accountant that formerly represented both the parties.

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to cover over empty spaces. He claimed he left ‘my half’ of our household. There were no photos of what was taken, no inventory, no accounting or recovery — ever. Apparently, most of our Thanksgiving dinner guests, his children, his parents, most of the office staff, and all of our Scottish Ball guests knew in advance not to show up that weekend. Years later, I found Chuck went to the Inn at Nantucket. Later, in obsessive study, I analyzed those photographs, reconstructing the timing and sequence of events, searching for mirrors and clocks to identify shadows and to chronically arrange the details in the photos. It was a crazy and distressing time for me. A very humiliating time in my life, with the pain of betrayal and disloyalty that lasted more than a decade. For those who asked, I replied to their intrusive questioning (about whether we were a normal sexually active married couple) — the answer yes, was four hours before he executed his clean-out. I had arrived home from Manchester late. Late and tired on our last night together. Still, there was no clue…. No advance warning…in fact the opposite. He had been so normal — and as ever, insistent. I fell asleep about two am, and arose at 6 to be in Manchester office before seven. It was a grind — that commute to Manchester when my real law office was less than a mile away. Chuck asked me to take over supervision of the satellite office in Manchester because there were problems there, so a short time before, I started making that daily commute. He leased the Manchester office, with the plan to convert it into an instant campaign office for his race for Governor, but that hadn’t panned out as he expected. Now because I wanted to let the staff leave early, and still had to shop for Thanksgiving, I needed pre-dawn start. It was hectic (predictably so, I’m not complaining.) I loved preparing and serving food, and went to a half dozen different places for the fresh (not frozen) turkey, fancy fizzy blue-bottled water, and a couple special floral arrangements. I loved having friends over, and good food, and, back then, I cared about the thoughtful little details of entertaining. What I did not know, as a myriad of others already did, was the coordinated secret that my husband had filed a libel for divorce in court the day before. A week later, I hired a private investigator firm to locate Chuck. It took a day. They suggested collecting his trash, and it seemed like a good idea to find out what was going on. Two weeks later, (with no word from Chuck in the interim) I read of the divorce in the statewide newspaper — front-page, over-the-fold headlines — just a few hours before the sheriff taped that libel on my front door. Ever a stickler for detail, Chuck had sent a copy to reporters first. Two months later, I filed an interlocutory appeal in the State Supreme Court278 to remove the judge for cause, and asked the highest court to vacate various trash orders and the ongoing $500 daily fine. I didn’t know this judge’s pattern then, but the case handling was so one-sided and unusual, I knew he had to be removed. The GAL just ganged up with Chuck and the newbie attorneys, and it seemed to me that every order was an illegal taking — unusual, and not according to any standards, rules or procedures established in law. I had nothing to lose and everything to gain. If only I could get an ordinary marital master or judge to hear the case. For a while nothing happened. My daily trash fine continued to toll, and was in five figures. Without hearing, the court went ahead and sealed court exhibits and records. Everything was locked up. The trial judge had deputized the GAL to enter, search and seize my house and office, using “any amount” of force. Same 4th Amendment violations against my relatives. Eventually the Supreme Court wrote that the judge had removed himself. But his parting salvo was to order the case transferred to Rockingham and Patricia Coffey, who was already notorious at the time. But her notoriety was local and I never heard about any of those water-carrying re-assignments until years later. Both judges were over on the seacoast, and I’d rarely gone to court there. Seacoast attorneys and judges tended to be life-time close-knit. A hundred years before, New Hampshire Judges made a rule refusing admission to the bar to anyone from out of state.279 Unbeknownst to me, I was the first group of out-of-state law-graduates admitted — reluctantly and only because U.S.

278 An interlocutory appeal is filed during the case for extraordinary (usually supervisory) relief of a lower court judge’s handling or orders. You don’t wait to the end of the trial to file this kind of appeal. 279 The New Hampshire Piper case where an out-of-state (Vermont) lawyer sued for admission to practice because the state Bar didn’t allow applications from out-of-state residents. Piper lived several hundred yards over the state line.

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Supreme Court had recently struck down the New Hampshire court rule that prevented outsiders from applying for state bar admission for a century.280 Un-lucky me. All this hindsight and after-knowledge has been a motivator for me to write for you. I couldn’t help the people who contacted me when all this was happening. There were too many; I was too small. And I didn’t understand what was happening in and out of court. So maybe my embarrassing story will help explain to others — it’s not you. It’s not personal. It’s a systematic thing, and you just happened to be the one caught in their web. A big web. So if you are thinking what the judge did in court is personal, then stop beating yourself up. You didn’t cause it; you didn’t make them behave badly; and maybe you can help fix it for someone else in the future. It’s not something you earn or deserve. It’s just a life lesson you accept — or decline. Because of newspaper headlines describing what follows, I became notorious as The Trash Lady, and people in remote parts of the state noticed and approached me. For several years, I co-hosted a weekly political talk show in a state that courted Presidential candidates.281 Although I would not call it a following, I was generally recognized as being somehow involved politics.

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I suspect that had at least something to do with the reasons my marriage failed. Too many people recognized me, instead of him. More than once, a stranger suggested the party should run me against the first female candidate running for Governor.282 When I was nominated for a state-wide honor, Chuck refused to attend my awards ceremony. Others made jokes, (including his mother) about how I should run for office. For a position he wanted. Then Ovid, a lawyer from a large law firm, pressured my husband daily for almost a week to step aside. Chuck believed Mrs. Loeb (of the Union Leader) wanted Ovid as the candidate. All that hurt and he had a life-threatening melt-down just days before he pushed me hard to hire a new client as receptionist. She wasn’t qualified for a number of reasons I thought, and she was a client. Was it a premonition? Chuck insisted we didn’t need a receptionist that could type, so I hired the woman who could not type — to please him. [Curtain drop; drum roll.]

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Trash turned out to be one of the most convoluted and unique pre-trial tricks I’ve personally experienced, although it took me years to understand and clarify. I offer the following insight at the tail end of tricks before trial because maybe it will help someone else sort out the big picture quicker, if you should find yourself in a Kafka case with a judge who operates without limits. Like a run-away train, litigants can’t stop them before the wreck. In New Hampshire, the Supreme Court knew for years it had a run-away judge but failed to reverse his extrajurisdictional orders. Few people took him on. Those that did, challenged, appealed, complained — trying to reverse and correct a quagmire of litigation. He was powerful and political and became bolder with his cronyism and patronage. Out of the many extra-judicial acts he did in my case, one of the worst was that appointment to his best friend, giving him all sorts of quasi-judge powers over me. It ended when he deputize him with unbounded law enforcement powers, illegal even for actual law enforcement. As an example, it is telling about a judge unbound in law. The order was to recover and destroy my trash. 280 I was in the first ‘class’ of out-of-state lawyers admitted to practice law in New Hampshire. A U.S. Supreme Court ruling forced the New Hampshire Supreme Court to drop its residency requirement. I think that was the first time I met my future husband, (a U.S. Congressman, whose help I sought during the bar admissions process.) I had passed the bar exam, but was being hassled with delays and questioning by members of an admissions committee, including an assistant attorney-general. (I had applied for a job that went to his brother.) Many of the questions and comments by the committee seemed illegal and intrusive — inappropriate questioning by educated authoritative people who all should have known better. I didn’t know then that they didn’t want out-of-staters in the bar. 281 The show was called Right for New Hampshire. Dean Dexter and I co-hosted state and national political guests from both parties. Chuck would do a twominute wind-up commentary that he dubbed What’s Up Chuck? 282 That’s the ingrained masculine way political Insiders talk — ‘running her’ — as though I was a horse.

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Simply enumerated, this list is tediously boring, but breathtakingly arrogant. It goes beyond acting in excess of jurisdiction, or abuse of discretion. A judge had no statutory authority to deputize and pass out deadly force enforcement power, or even to appoint an insider to be a mole in my business, or circumvent my discovery process, someone unqualified to appraise my property, decide my support, regulate my office staff and expenses — or other unique chauvinistic functions I was subjected to in the name of divorce.

HERE’S MALCOLM’S GAL ROLE The order gave him law enforcement powers. He was authorized to enter my home and office anytime. To search my home and office for trash. To remove trash and destroy it, or give it to the opposing party in the case. Same order to enter and search my “relatives’ homes” (not specified which relatives or where). Also at any time, without notice. The search and seizure was for — trash No further description of the property. No boundaries on the search. No guidance as to how, where, when, who, or what. “Trash” in general means waste, junk, debris, scrap, litter, rubbish. But remember, one mans trash is another man’s treasure. This was a three acre property, 25 rooms, plus a pool house and two story two car garage. My closest relative (the brother associated with my case, lived in Ireland). There was no warrant or probable cause notice or hearing. Attorney McNeill was authorized to permanently removed unspecified ‘trash’ from the places entered and searched. And he was authorized to use whatever force he determined necessary — heaven’s knows what that could be as there were no limits; He was authorized to remove and destroy evidence; And to give my property and evidence to the other party. The GAL was silent for weeks and didn’t act on the order. I waited. They continued fining me $500 a day, and took money from my fund at court. The State Supreme Court waffled. We continued to wait. Chieftain or not, there are limits to a judge’s authority — and they don’t include deputizing someone with enforcement and contempt power — not even in a criminal case! But in a divorce case? Without notice? Wow. Here’s the analysis: 1. Acting in excess of jurisdiction. A divorce court has limited statutory power to divorce the couple and divide marital property. It is not a criminal jurisdiction court with authority to prosecute, collect, search and seize, use force, or forcibly take personal property and evidence. 2. Unsubstantiated guessing as foundation for probable cause? There was a rather ludicrous oral accusation that Henry the Handyman read and took documents off attorney desks while emptying Chuck’s law office trash cans — the job Henry was hired to perform was to empty trash cans and take out the trash. 3. The young tribe of new attorneys tried to criminalize having their law office trash in my possession. They wanted to hang a criminal charge of theft on me (or Henry), and made wild accusations in court as ‘offers of proof’.283 There was no support, evidence, or even logical reasoning (it was impossibly beyond Henry’s functioning capacity.) The ‘theft of trash’ was just more mud thrown at hearing — another bald unsubstantiated allegation — one of many routinely made by my opponents when we caught them lying in pleadings or in court. But that speculation became the implied basis of an order to deputize a lay-person to make a criminal search and seizure campaign that is unprecedented in any divorce case I’ve ever heard of. 4. The order authorized the GAL to enter and search my home and my law office, at any time — for unspecified trash. Without warrant. Without due process. Constitutional level violations. Whether anyone was present or not. JNad

283 The truth was Chuck refused to shred client and law office documents. I had announced a shredding policy shortly before this whole debacle came down, but he revoked it.

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authorized the lawyer to use of whatever force necessary to carry out his orders. No limits on force — so was that breaking a window? Breaking a door? Bringing a swat team? Bringing a gun? 5. So we have breaking, entering, and searching. Nothing was defined. Notably vague and unclear. 6. JNad said find and take my trash. What is trash? Did that mean examination of everything in my house? My office? My law files? By this point, the couple of weeks of trash collection from the four private investigators had been sorted and filed, the remainder shredded and burned. So former-trash was actually law-records. But of course, the image was of a second round of kid-lawyers acting as a posse, sneaking back into my house, destroying and looting my home — a second time. Since it happened earlier at Thanksgiving, this trash invasion order six months later, written with such vague and overarching ideas (enter any time, take anything, use any amount of force) — the language was designed to implant fear, and to terrorize. It was stressful. 7. Whatever was removed was to be transferred to ‘the other party’ to destroy. Evidence — to destroy case evidence before trial. Again no authority or citation, facts, due process, charges or hearing. When have you ever heard of a case of transfer of one party’s unspecified evidence — to the other party, to be destroyed before trial?

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In hindsight years later — it is as ludicrous now as it was then, but then it was terrifying at the time that someone could use force and enter my home or my office, at anytime — search anyplace, and take anything. This was supposed to be legal. We never had a trash hearing, and I never got to present all that spiffy trash collection law I had researched and documented. The order was another ambush. I don’t think JNad even recognized the Constitution doesn’t allow any of his Rambo tactics He was chief of a (middle-level) court, and while he could be charismatic, he wasn’t especially intellectually smart. More wily than smart. There are so many violations of the 4th, 5th, and 6th 14th Amendments in his orders that the civil rights violations just kept stacking up. It was like he was stalking me through his orders. There was something obsessive about this judge’s personalized handling — he was way too involved in my case, with no discernable reason. He couldn’t let go, even years later. I wasn’t alone in this feeling — Others testified about the same patterns — mis-handing, over-involved, manipulating people and manipulating contempt charges, always creating more and more problems with each new last-minute bright idea. He also seemed so caught up in his chief role and his chief powers (remember his license plate on his rolls read Chief 1) that he used authority far beyond legal boundaries. One woman testified about handwritten evidence in her court file that disappeared later, to prove how he continued to interfere, years after being disqualified.284

5

At the time, I was not aware this was a pattern of practice for him — unique creative orders not anchored in statutes or other legal authority. Over the preceding decade, there had been other cases where this judge failed to disclose, failed to recuse, and made wild-ass extra-judicial orders, from trying to call out the National Guard (to bulldoze alleged zoning violations) to deputizing his BFF. Did the Supreme Court supervise him? No. Did they discipline or caution him? No. Did they recognize and say, Oh, not him again? No. They left him as a middle-level chief judge, mucking up case after case — ruining lives of the people unfortunate enough to be hand-picked by him for his highly personalized docket. No wonder he and the clerks refused to produce a list of cases he presided over during his career — the following year when there was a situation with the Governor. That situation was an opening on the state Supreme Court because Stephen Thayer had negotiated with the AG to resigned and keep his law license. So instead of disciplining JNad, the Governor promoted him. What JNad was very good at was collecting BFFs. (Like the Ravi-story.) The Governor’s husband also considered him a BFF and they shared both bar and cultural ties. A couple of other court Insiders also claimed to be BFFs. He was unanimously appointed to the State Supreme Court. The Governor’s Executive Councilors ignored two days of contentious testimony by litigants about his special kind of imperial tyranny. People called him names. One called him a crook. I sat next to the videographer, and the sheriffs came over and asked me to leave. He said Mrs. Nadeau said she was frightened of me and she contacted security to have me removed because she felt unsafe. So would I please leave? I said no. I felt safer being

284 She found a handwritten note in the court file, with instructions to the court clerk to contact the opposing attorney with detailed legal advice. Mary Bonser photocopied the note and had it analyzed by a handwriting expert. The original disappeared.

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next to Bill Cushman, a small man with a camera, before the age of cell phones. JNad had a relatively short stint on that higher court, pissed off most of those judges with his arrogance and retired. And went overseas to help a third-world Muslim government write a new constitution. JNad assumed control of my case by his powers of special assignment, but he gave away most of his judge ‘work’ to another, while he monitored the case from his home.

It seemed like a contradiction — taking a case out of the ordinary course handling for divorce cases — confiscating my assets, and then turning case handling and management over to an untrained, unauthorized third party to administer and process, using a unique flawed ‘legal’ framework. I didn’t know understand the appointment acted as a back door to spy — and he demanded access to not only my separate case files, my separate bank accounts, my client monthly bills, and my staff. That’s how the other side knew when I got paid in my cases — and Chuck launched his court-raid on my client’s divorce fees. They knew when to raid my paying clients (as opposed to my pro bono clients.) For a judge, JNad seemed grossly ignorant about mandatory processes — the legislative framework for steps judges are to follow, deadlines, notice of hearings, and even simple discovery processes — in short, how judges are to handle any divorce case. From the moment he confiscated and converted my business in a surprise attack in his chambers, he didn’t know, and didn’t care to know what the law held. State Statutes operate almost like a road-map. This case was off the map. I knew of no rules or precedent for how issues were handled. The handling was unique in my professional experience. The Chief’s ideas short-circuited due process and constitutional and statutory protections. Even normal discovery was circumvented.285 Apparently the expectation was to seize control over the case assets, turn them over to Chuck outright, or when I objected, turn them over to an insider third party, scoop plus devalue the assets, and rush the case closed. Quick, no fuss, no real judge-work except to rubberstamp GAL bills and recommendations. Could this be his idea of plausible deniability?286 Judicial overreaching. There was no legal authority or precedent for this kind of rogue handling extra-ordinary judge power. No one could put this judge on a leash.287 Not on my case. Not on other New Hampshire cases that got appealed for two decades.

HERE’S A NON-OFFICIAL LIST OF JUDGE-POWERS DELEGATED OVER TO HIS UNDISCLOSED BEST FRIEND 1. Administrative judge powers — To conduct mandatory meetings and pre-hearings on all issues

Anywhere. Anytime. Single party or all. With participation, input, and demands from the interveners.288 Ex parte or not. Last minute? Fine. Drop by? Fine. What kind of quasi-judge acts like that? This case handling was way too up-close and personal. 2. Power to make fines, rule on contempt This was apparently his friend’s first attempt at being a judge. Not promising. The first mandatory meeting was hours away. I got lost. It was a cross between a trial and a gang-bang. Aggressive, they were proud of 285 The BFF/GAL was authorized to invade and rummage around in my files, client records, billings, office and home without framework or restriction. He apparently planned to guess a FMV for the old businesses. 286 Plausible deniability was a concept used in the Kennedy and Nixon White Houses to insulate those at the top from accountability in case Presidentialauthorized secret ops failed, or were otherwise publicly disclosed. The White House Plumbers are one example. A lower-level official is to take the fall to protect the President as a duty of loyalty. Probably Oliver North is one example. 287 I was one of the few that got him removed, but his tricks just put him into the closet — the video-media closet trick at my trial. 288 We had so many interveners that the case became a circus. There was parties (husband/wife). Next came the BFF as a GAL. Then the four kidattorneys who overtook my old law practice. Also Paul Maggiatto, the smarmy prosecutor from the Pame Smart case (now representing the receptionist, after the PI’s discovered she was a co-respondent.) The Associated Press intervened (to unseal the hearings and records). We had two judges, plus the GAL-judge. Chuck tried to rope-in my publisher (Nexis-Lexis), the four private investigators, the owner of Blue-Sky Books, and my divorce client, Marjorie Heimann into extension-cases.

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the ambush, and were Ol’boy rude and patronizing. It’s a psychological technique of country club Insiders to marginalize and degrade outsiders. 3. Contempt powers and fines The process of finding me in contempt — then paying themselves out of my funds in the court trust account operated like a shake down. I had no say. I was ‘found’ in contempt, and the intimidation by power of contempt was a one-sided exercise. Malcolm held only me in contempt for being lost and late,289 even though it was scheduled at the last minute at a really far away, inconvenient place (his office). He fined me the total of everyone’s separate hourly rate — $150 to $250 an hour for each of the six men, plus himself. Of course, he took the money out of the court funds held in trust for me. I already covered my afternoon wait time, times 7 men. No one even thought of that. 4. Paying for court process I also had to pay for this fake-court hearing at his office. That was in addition to the one-sided late fines, and his trips to my office and court. 5. Special processes In the meantime, all the case pleadings and filings were filed or faxed to JNad at his home, so he could monitor this case from the privacy of his home. That was a secret, known by the court clerks. Not disclosed in the case until I challenged him about it. 6. Avoiding discovery pp

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They insisted I didn’t need discovery because Malcolm would do it. The GAL was going to look at all the business financial and other records, then ‘audit’ and ‘value’ my defunct business. He was going to replace the normal discovery process. At first, I didn’t have any rights to view the documents collected by the GAL, or to question his ability or his recommendations. After I insisted, he said I could see what Chuck produced, but he made review very difficult — scheduled back at his seacoast office (hours away), late in the day. Incomplete records, of course. He didn’t care. Why should he? I was just in the way — asking like that to view the discovery he collected. I was not cooperating or acting deferential to him and the Insider team called me a bitch, for not going along.

From my side, I was bewildered and skeptical. I didn’t know for several years that I was playing in some different court platform where I could not win. From my POV, I was compliant to this disorganized and ignorant judge and his authority, but couldn’t get a grip on the platform he was operating on. Sometimes, I watched the circus handling of each hearing and each appointment, as they unfolded in a crazy angry fashion — like it was happening to someone else, not me. The judges behavior was legally irrational, but he adopted an even higher degree of authority, making illogical, biased orders (by both the judge and GAL) — aimed at only me Special rules, to put me into compliance, but without any of the notice, due process, opportunity. JNad thought the state court, through him, operated as he wanted it to operate. State law was what he said it was. Having researched and written a 3,000 page law treatise on divorce, I knew state law was what the legislature and the rules provided. In this stalemate over platform, he won by conventional standards. He bankrupt me, humiliated me, and subjugated me in divorce court. But I’m still right about the law and still believe judges cannot ethically, responsibly, make new law systems based upon their own personal agendas, whim and caprice. They can do it — it’s just illegitimate. pp

At the time, I didn’t know my overall feeling — that this case handling situation was not real — this is actually a recognized and classic symptom — where innocent victims fail to react and they keep waiting for the system to recognize the error and wrongness and to right itself.290 These kinds of victims don’t realize they have become non-persons who don’t count in the system. I was being systematically denied equal access to the law, my property and income was taken away capriciously, while I was being called ugly names, marginalized, and accused of being a criminal. I knew that was all wrong, but what I didn’t recognize then, was this alternate platform in the legal system was not going to right itself. No amount of work, study, research, brief-writing, appeals, — any of the things I’d done a hundred times for my clients — none of that would ever extract me from this situation.

289 We phoned three times for what were really terrible directions en route — this was before GPS. 290 Holmes & Meier, chapter 4.

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7. Intrusive interference The GAL’s so-called assignment to do my discovery for me eventually extended into questions about all aspects of the divorce — not just the old D&D business, or to the two newly-minted law offices. He usurped my discovery about all marital property — real estate, bank accounts, assets, and other divorce issues, and then he moved into post-separation assets and my counterclaims for adultery. and FMV of business assets and real property assets. He negotiated for me to give up claims for my personal property. He kind of spread out like tar on hot pavement — filling in all the cracks — excluding me from doing the normal case process I would have done for any of my divorce clients. 8. Trustee and auditor Malcolm arrived at my business like a bankruptcy trustee — to monitor and audit my records, bank accounts, my law practice, and even my current clients files. When does another attorney get off reading or taking my client records? He could demand I produce any record — business or personal. There is no authority anywhere for a judge to order another attorney to invade and monitor another’s business like that — I was in divorce, not in bankruptcy. 9. Law enforcement — without restriction Unlike any actual law enforcement officer, he didn’t need any of those cumbersome constitutional protections. Enter, search, take, use force, then destroy — my property — whatever he wanted. 10. Valuations/Business Appraiser Malcolm was to recommend a valuation for my old business to the court. He had no special skill or expertise or training or certifications. He didn’t disclose he how bought the judge’s law practice when JNad was appointed to the bench. There were no discussions how, what methodology, nothing. Pick a number and live with it, the Sleepy Judge told me. It’s like a broken arm case. 11. I paid for Malcolm — double pp

pp

Privately charged for all these services, the funds were from the trust at court. Some were double billed. Some were improperly accounted. The scheme was to transfer those funds to Insiders as costs before trial. I had to pay for what should have been free — In America we don’t pay to be a defendant in court. You have to go to court to be divorced, but court process is without charge.291 Malcolm charged. Even Chuck’s share of the cost was taken out of money held by the court for me. I objected over and again. Malcolm got intimidated and pulled back after his initial three month zeal — but still got himself paid $33,000 in about three months, and it would have been much more if I hadn’t been so vocal. Officially, all this extended authority ostensibly stemmed from a GAL appointment for the old Douglas & Douglas law office. Of course that was unconstitutional legal-sounding gibberish.

12. The lost rule of law pp

pp

The only statutory authority didn’t apply in this case. It is a power to appoint a trained, certified GAL to protect a child in divorce — there were no children. Only a defunct business. State law doesn’t authorize the processes this judge ordered. Not in divorce. Not anywhere. It was confusing at first, and a whole cadre of men took advantage of my confusion and distress. That was the point. With support of a few incredible friends, I began to wake up. To question. To fight. The judge scrambled to spin a cover for his judge-ass. And the boyz began to scrum. There was a rush to close out the case quickly, to close me out quickly from broadcasting my defenses. If the process had been fair … (or even respectful) … I wouldn’t be writing this. Sometimes God’s hand intervenes…in our lives…to unlock a purpose.

The practice behind the theory: Like I said before, some judges love inventing unique ideas from the bench, and this one in particular was never bound by the Constitution, (much less demonstrably familiar with the warrant and other requirements of 4th, 5th and 6th Amendments.) Legislative guidelines, rule of law, and statutory and case law mandates never concerned him either. A free-spirited progressive politician, who could spin his hardball misconduct to evade correction for decades. How many more judges are there out there like this one? God save us all.

291 New Hampshire Constitution Article XIV provides judges services in court without cost — “Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.”

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B

CHAPTER FIVE — TRICKS BEFORE TRIAL

“It is the judge’s denial that they are bound by law… There is not the faintest hint in the Constitution that the judiciary shares any of the legislative or executive power….

CHAPTER

The court is to apply the law as it comes from others…” Justice Robert H. Bork, The Tempting of America, The Political Seduction of the Law The Free Press, Collier Macmillan Publishers, (1990) at 4

5

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CHAPTER SIX: TABLE  OF CONTENTS

CHAPTER SIX — TRICKS DURING TRIAL INTRODUCTION §77

SUA SPONTE ACTS

§78

EX PARTE CONTACTS

§79

CAMERA AND MOVIE STAR JUDGES

§80

SHORT-CUTS FOR INSIDERS

§81

STACKING THE PLAYERS AND WHO’S IN THE GAME (IN COURT)

§82

EXPERTS AND FORENSIC CORROBORATION

§83

JURISDICTIONAL TRICKS—EXPANDED MATTERS

§84

RULES AND JUDICIAL DISCRETION

§85

COMPROMISING THE ROLE OF A TRIAL JUDGE

§86

DISCOVERY TRICKS & DOCUMENT DUMPING AT TRIAL

§87

MINIMIZING PUBLIC EXPOSURE

§88

COURT WATCHERS, HELP AND SUPPORT GROUPS

§89

THE CRAZY CARD & INVOLUNTARY MENTAL EXAMS (“IMES”)

§90

ARMED HOME INVASIONS

§91

COERCION TECHNIQUES

§93

AVOIDING THE BIG PICTURE

§94

TRICKS FOR SPLITTING A CASE

§95

JUDICIAL RULINGS AND ERRONEOUS LOGIC

§96

CLAIRVOYANT JUDGES

§97

OL’BOY DAMAGE CONTROL

§98

SCREWING AROUND WITH THE EVIDENCE IN A CASE

§99

HAND SIGNALS, EYE WINKS AND OTHER NON-VERBAL JUDGE SIGNS

§100 TOYS IN THE COURTROOM §101 ENDING THE TRIAL AND OUTCOME TRICKS §102 JUDGE RULINGS—ONE-WORD DECISIONS §103 SLAPP SUITS §104 THE ATTORNEY SMACK DOWN §105 A WASHINGTON WORD OF ENCOURAGEMENT 387

TABLE OF CONTENTS

§92 COERCION TECHNIQUES WITH LAW ENFORCEMENT & OTHER GOVERNMENT AUTHORITIES

Chapter Six — Tricks During Trial

INTRODUCTION The trial processes in this chapter are shadow practices - administered and instigated by judges - for insider benefits. They represent a systemic flaw, deliberately ignored and overdue for critical comment. Readers should watch for three patterns in Chapter Six cases: (1) the use of magic language with manipulation and falsification of language to justify judge acts that do not fall within the law; (2) a detached and secret point of view in the operation of the ‘business of judging’ — a private enterprise of courts that has it’s own internal economic and idealistic agenda; (3) the unsubstantiated assumption that judges hold an inherent skill or ability to sit in judgment over others, in thinking that makes their thought processes not only more rational and accurate that this judge-system is consistent with the Constitutional role of the court. Because of its inherent bias and other defects, it is not. These structured assumptions are politically flawed, and something that I missed for years. I recognized early on that something about the 1955 generational revolution of culture in America greatly impacted the Unified Bar formation thinking and process; but I missed the significance of the liberal ideology in what new court system founders claimed was “rigorous objective science,” making judges eminently more suited to rule others. I also knew the Ivy League social science studies on group conformity in this population of people was relevant to the development of Bar and Court leaders, and also their rules and practices and that was very bad for ordinary people in court.

CHAPTER

I reported dramatic changes in legal training a hundred years earlier (with the Christopher Columbus Langdell lawbusiness training model.) Students for two generations hated and rebelled against this. The shift to a structured revenuefocused classroom model absconded the formal study of black letter law, common law, established law, statutes, rules, and apprentice-learning. It shifted to a new relative-rational-relational system of thinking in law, where there are no absolutes, and every fact and decision is a word-play and never-ending rationalization. What impact did that shift have on the quality and character of judging? Did it inherently skew the nature of judging in a way that reveres and favors the industrialized state, while minimizing and eliminating the American democratic experiment in individual rights?

6

I also tried to factor in the impact of the existential movement and progressive thinking that was so popular with elite population segments (in America and Europe) that made up and influenced the court system at the turn of the 20th century. For years, I’ve kept a chart of political movements for each President and each Chief Judge. Justice Holmes 1898, for example, supported legal realism (tied to Freud’s psychoanalysis) and the non-rational law movement. Each political change, I tried to fit together as a puzzle piece in order to understand the impact(s) leading up to the secret revolution in law — An insider revolution of American law that occurred the 1960s, orchestrated by law intellectuals and law elites went unrecognized by politicians and the public for its true national character and potential for take-over of political and social power. I’ve been tracing the American economy, including the Theodore Roosevelt-Lochner era, (where 80% of American businesses were owned by trusts and monopolies) also depressions and wars. I’ve studied the choice — democracy or wealth? Also the growing impact of the expansion of federal regulation resulting in catastrophic social and economic changes — the widescale loss of farms, timber, fishing, seeds, water, and individual rights. All were related to a new court process that is procedurally skewed and sometimes skewed for individuals to lose before they walk through a court-room door. The progressive program and industrial interests morbidly clash with those of an equal democratic society, and in these cases, individuals are programmed to lose. One other factor that is a loose cannon in this scenario, is the development and expansion of secret quasi-military black ops inside our borders and out. What I missed for years was the politics of the legal system that had law leaders claiming that their rigorous scientific methodology helped judges be objective court thinkers in this process of endless rationalization by elitist. It doesn’t. And they aren’t. There is no rigorous scientific application in the cases we are going to review for the rest of the book; it’s a sham based on the replacement of law with the use of judicial discretion — a man-made theory stemming from an internal preferential system that judges fashioned for themselves to avoid review and accountability. As an experiment

388

Introduction

in law, it is an institutional failure that perpetrates great and enduring injustices in court for those not part of the insider system. That’s most Americans. Review the statistics at fn. 2, Ch. 1. Modern judges also lack formal training and foundation in logical reasoning. It’s not part of the curriculum. They have no focused experience and background in religion, morality, philosophy, logic, or black-letter law. Instead the modern court practice is a system based on a misguided policy of mandatory public trust for a liberal thought system that doesn’t work. Judge acts are arbitrary, capricious and unfair. It’s not the act but the state’s interpretation of the act that stands trial in this separate closed system. That’s the missing piece from my own disbarment case, and dozens of other cases reported in this treatise that just don’t make factual, actual, common, legal and rational sense. Sometimes, it is not the person on trial, but what the legal system or the State thinks the person represents. It’s court subjugation based on fears of its leaders — of race, religion, politics, relative social position, and corporate presence, — all detached from an individual sense of self, from personal morality, from feelings, and from actual facts. Truth becomes what the judge says is true, not what the evidence shows, and not what happened from any perspective. Every event has at least several perspectives — the POV of the actors. The state power to manipulate in court, to present jurors only the state POV, is great. The system is designed that way. It is so great in fact that the evidence admitted for trial is untrustworthy in fact and omission. The rule of law is immaterial to in this pseudo-scientific rational process — it is irrelevant to the trial outcome. This empty shell-like process is what judges do to the parties. Judges justify a court process detached from themselves and from religious beliefs, morals, and values. It has no foundational basis except itself. That foundation systematically devalues the individual — it is a politically rational process that defies and has replaced the Declaration of Independence and the U.S. Constitution. It is an elite experiment and systematic failure that operates without reliability or minimum standards of practice. It operates without transparency and accountability, because all of those measures of industry would demonstrate failure, inconsistency, and excessive cost without fair return. The judge’s model for justice doesn’t work — except for those operating within the system. Deconstructing hundreds of cases, and from courtrooms all over America, the report card on judges and their so-called ‘scientific reason’ process for administration of justice, demonstrates that the judge system is an enormous semantics trick (a word game) that applies arbitrary qualities of secular law — after smothering both religion and traditional American law in courtrooms. It is not what most Americans think is justice. It is unfair and doesn’t properly fulfill the Third Branch government function in society. The case outcomes of judges who do not use morality, religion, common law, statutory law, and case precedents for decision making — those who have substituted a vague and amorphous enlightenment philosophy and pseudoscience process — each is alienated from the humanity of people, and the reality of actual facts, and the application of predictable, reliable established codes of law. This means the acts are alienated from the outcome, individuals are subordinated to the state, and moral principles are subjugated to the position of unimportant artifacts at the alter of a liberal rational-secular political process.

Just like trial is, this chapter is a bear. I asked each early reader what to cut, and no one wanted to cut anything. This chapter at trial works like weaving a braid with hair extenders….it just keeps growing. If you get bogged down, jump forward to the next two chapters and then come back.

389

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INTRO

Chapter Six — Tricks During Trial

77 SUA SPONTE ACTS

§

When a judge initiates acts, without suggestion or prompting To the extent the judge initiates rulings, which favor one side over the other, the judge is acting of his own volition. These are human beings, not mechanized figureheads. Judicial participation as an advocate in a trial crosses the thin line between administration and (improper) case manipulation. While a judge has the power to make sua sponte rulings, it is the pattern and usage you want to track to see if there is some underlying judicial bias that impacts getting a fair trial and unbiased outcome because of judge initiatives. Remember judges are lawyers with a promotion, so when a judge loses judicial perspective or neutrality (he may never had had either of those traits) he will experience an impulse (an adrenalin rush) to join with the prosecution or other insiders to initiate helpful but improper rulings.1 Track silently all impromptu judicial outbursts and suggestions as clues to identifying patterns of latent favoritism. Judges deny or are unaware of their biases — most often, depending on race, they favor — Prosecutor (first) or the state’s lawyers over others, Males over females, Rich over poor, (but not too rich) Caucasian over minority, Educated over less literate, Everyone over a pro se (this is sometimes punishment status)

CHAPTER

In other words, the common social biases of upper class Western Caucasian males. Less recognized but also notable are attorneys over pro se (unrepresented parties), progressives over conservatives, and secular over religious. Judges like people who are like them. We’ll discuss later why the social population pool that makes up judges are more likely to hold these kinds of social bias, but to do so here digresses too far from the 28-categories of judge tricks to watch for — discussed in this longest chapter.

6

In the Thayer divorce, the plaintiff was a State Supreme Court Judge, who in the hierarchy of judges was ‘the boss’ over the district judge. So the plaintiff outranked the sitting judge. But she was working her way up the political food chain, and in hindsight, fit my definition of a compliant female judge.2 Remember this case involved a secret substitution of the first judge, and a defendant-wife who tried to get the second judge removed. She was in pro se and lost, but this case later became the forefront of the first public exposé of the insider system — that state courts insiders get special judicial treatment in court. The failure to get the judge changed back to the original assignment (at the front end of the case) materially affected the outcome. It set the stage for judicial activism that was blatant — such as sua sponte oral motions — not only motions, but objections. Now plaintiff’s attorney, Bill Brennan is a tough insider-litigator, hired often by ol’boys in divorce. Brennan certainly did not need help from the trial judge, but it was an apparent display of professional courtesy and then more. I might be less outraged if a judge initiated favoritism on behalf of the weaker side because it might be rationalized as an attempt to balance inequities. But the initiated favors here are only for heavy-hitters. Because the acts were frequent, she

1

The reason most judges are so quick to jump on a bandwagon is an identifiable phenomenon — how judges want to ‘be with’ and indicate their support for some in a case. And yes, some of that feeling is a bio-chemical reaction. Neurological studies reported in the Journal of Experimental Social Psychology indicate there is a brain-wave activity pattern for prejudice that shuts down empathy for out-groups — non-members. Latent bias, even though unacknowledged, actually has a demonstrable scientific-visibility reading. It’s not just your intuition. For now, we are just going watch the number of times this sua sponte phenomenon occurs in at trial. Not every case is flawed — some are just straight-up judge handling, no tricks, no insider deals. So don’t get paranoid, there are enough of the ‘bad’ cases to justify publishing a book.

2

See Chapters 1 and 5.

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§77 Sua Sponte Acts

earned the title Sua Sponte Queen and later an appointment to the state supreme court. A number of cases demonstrate other ways3 judges capriciously initiate help for their favorites in court:

EXAMPLE ONE: REMOVING THE DEFENSE ATTORNEY A Texas judge apparently thought the defense attorney for John Paul Pentry was way too successful,4 (he represented the defendant 25 years, through two U.S. Supreme Court appeals and two reversals.)5 On the third re-trial (this is a death penalty case) the judge initiated removal of the defense attorney, and replaced him with one of the prosecutors from Pentry’s first trial — now court-assigned to switch to defense.

EXAMPLE TWO: MANIPULATING A DEFAULT. I experienced the same sua sponte removal of my brother as counsel an hour into my trial on the pretext that my brother’s appearance form had a photocopy signature, not an original. We covered this in the homework on mirroring, but even after months of litigation, judges do manipulate to throw the outcome, at the beginning or end of trial. She wasted no time in immediately awarding Chuck ownership virtually marital asset, and when he forgot to ask for my separate property, she reopened the case ex parte four hours later to order a freeze on my solo practice bank accounts. The rest is history. At the time, my brother simply announced (in his wry way of understating calamity) — well, the cost of the transcript for appeal will be less. He referred to the judge’s response to the technicality as swatting a knat on a horse’s ass.6 There were a lot of alternative cures/remedies7 and a simple postponement until afternoon would have been an easy one — but both Greg and I knew in advance what this judge’s trial outcome was going to be. We just didn’t know how she would create or justify it. On appeal, Justice Broderick said the attorney-disqualification was a nuclear bomb, but said he would allow it as within the judge’s broad discretion to use a nuclear bomb if she chose to pick that ‘weapon out of her arsenal of weapons.’ That was his analysis about abuse of discretion. Fly swatter or nuclear bomb? He just did no real analysis about what is abuse of discretion. Layer upon layer, these men just build and maintain illegitimate insider outcomes. Don’t lose track of the fact that they are mere men, with no special gifts greater than our own. They have advantages, but not necessarily God gifts.

EXAMPLE THREE: CO-COUNSEL WITH THE PROSECUTOR (A JUDGE WHO MAKES OBJECTIONS FOR ONE SIDE). The Arizona family court judge Janice Sterling routinely initiated trial objections on behalf of the prosecutor, who reciprocated by coaching Judge Sterling in the finer points of criminal law. Her experience was family court, but she was specially assigned to replace the regular judge in this high-profile criminal case. She often appeared over her head on the rulings she initiated or rubber-stamped. She would interrupt a witness, and yell ‘objection’ and then mumble

3

Chapter 5, Before Trial, contained several dozen examples, and those plus the trial examples (about 3 dozen in all) may be found either before or during trial. Trial is the last chance for a judge to influence the outcome. If it is a jury trial, the judge will need to convey her sentiments to the jurors. Should that not work, there are examples of last-ditch judge maneuvers in the next chapter, After Trial.

4

See also the John Paul Pentry case detailed more in Chapter 8 § Appeal.

5

I suffered the same trick when the trial judge initiated removal of my brother about an hour into the trial (six weeks and three hearings after he filed his appearance form in court). There was no equal treatment and essentially the judge re-defined a case default — not by the fault or failure of a party, but by judge activism.

6

About four hours later, Coffey re-opened my ‘default trial’ for a new ex parte motion by Chuck’s new attorney. Coffey allowed Tim Robinson days to file an appearance form. One more example of strict ‘enforcement’ of a rule to default one, while dispensing leniency for those favored.

7

Curing is a legal concept that trial judges are to “give reasoned consideration to various available alternatives as well as to questions of fairness” before deciding a mistrial, a default, or other fatal mistake, (such as occurred when Sorenson broke down and confessed Brady/violation element of ‘PTSD’ on the stand in front of jurors. Some judge mistakes are not curable. The overweight of one element is arguably a non-curable mistake, warranting a mistrial. Cases have found that the judge’s duty cannot always permit “curative instructions” or forceful corrective instructions to jurors, and to do so risks reversal/mistrial on appeal. For example, see Rescript Opinion, 17 Mass.App.Ct. at 901.

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Chapter Six — Tricks During Trial

a reason and grant her own objection all in the same sentence.8 Sometimes, the Prosecutor had to decline the judge’s help and explain how her ruling or her objection was erroneous. He explained the specific applicable criminal case law, and once or twice during the trial, Judge Sterling would then withdraw or denied or reverse her own objection and ruling. She was like a dance partner who kept stepping on her partner’s toes. Sorry Your Honor — that relief was repealed. Another judge jumped in to offer extra-judicial relief for the defendant (his next-door neighbor) not realizing that the legislature repealed the relief the judge proposed — a decade earlier. The victim (in pro se) meanwhile suggested the judge might want to come down from the bench and sit at the plaintiff’s table. The extra help judges initiate can cause or avoid a default; remove or add counsel; raise and rule on their own objections; initiate cover for prosecutor mistakes; fill in holes in the prosecutor’s case; and embarrass or humiliate an outsider.9 Judges also make excuses, testify as a witness, testify erroneously, provide legal advice to one side, and initiate new charges. It is an endless set of new possibilities where judges jump in with enthusiasm to advocate for one side and help out parties they favor. Bias and activism are two obvious improper reasons for a judge to initiate relief that no one asks for. One (bias) initiates help because of personal preference, the other (judicial activism) promotes a personal social agenda. The third reason is corruption.10

CHAPTER

TIP: Track these judicial initiatives, and determine who is the ultimate beneficiary of that nice judicial suggestion? If a judge is repairing holes in state evidence, covering attorney misconduct (by creating suggestions or excuses for them), making objections for one side, or offering judicial advice that consistently favors one side or steers the case outcome, then it’s time to make a detailed writing in the court record of latent bias.

6

The second reason, judicial activism, may involve using the case to create or further a social agenda, create new legal concept or social policy, or to overturn or gut an existing law or otherwise extend judicial power beyond the boundaries of what is argued and presented in court. Some sua sponte judicial acts include initiating new relief, not requested by either party: taxation, school funding and vouchers, funding public education, legislative provisions on social issues including same-sex marriage, finding new unique tax bases in the Constitution, desegregation, marriage, abortion, and Presidential election outcomes, and other judicial-activism social issues. Notably, these actions cut across political boundaries on both sides of the aisle. They are huge jumps in federal law on social agendas. These techniques were extensively used by the Warren Court in the 1940s beginning with the Brown v. Board of Education series of desegregation cases and have expanded. Largely, this is federal court expansion over what are historically state issues. There is an enormous public backlash, but the reasons behind the involvement are largely veiled within the judicial system. Judicial activism is court powers exercised against the other authority explitictly assigned to the other two branches of government.

RE-CHARACTERIZATION OF COMMON LAW PRINCIPLES BY JUDGES. The revolutionary re-characterization of common legal principles have been used by other courts in cases of judicial activism. The whole concept of what is habeas and how do I get one has been monkeyed around to minimize access to that freedom by judicial shifts in public policy — “The history of federal habeas corpus jurisprudence is a series of revolutionary re-categorizations: in defining what it means to be ‘in custody in violation of the Constitution.’” (28 U.S.S.§ 2241(c)(3), cases like Moore v. Dempsey, 261 U.S. 86 8

Arizona Judge Janice Sterling had a history of close association with the prosecutor in some cases; and because she had almost no experience in criminal court, she relied heavily in court on prosecutor guidance. Funny choice, since the last defense counsel was the judge’s former law partner.

9

Handwritten note of Judge Joseph JNad found in the case file, telling the clerk (after he was disqualified) to order a continuance to avoid dismissing a case and to notify the prosecution to amend his complaint to add a new party when the old party died.

10

Most judges do not recognize their own corruption.

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(1923), and Johnson v. Zerbst, 304 U.S. 458 (1938), recategorized “jurisdiction; in retaliation, Wainwright v. Sykes, 433 U.S. 72 (1977), and McCleskey v. Zant, 499 U.S. 467 (1991), recategorized “default”; and Teague v. Lane, 489 U.S. 288 (1989) recategorizes Time itself.”11 I anticipate criticism that I espouse that judges may never act sua sponte, so I caution readers not to over-read or generalize — I recognize that some initiatives by a judge may be appropriate, when such an initiative balances the scales of justice and does not offend justice. It is a matter of balance and thoughtful discretion — but not brute bullying to force an PET outcome. A reasonable disinterested man should be able to discern whether an infrequent use of judicial initiative evens the balance or causes a greater imbalance in the respective position of the parties. The trouble is, there aren’t reasonable men in court anymore — none of those constitution-toting or other ordinary people who think they can have an opinion. We are not welcome, nor listened-to in what has become an elitist club. That’s one of the reason pro se litigants are at the bottom of the preferential-treatment/bias chart. One hint is when the case outcome doesn’t seem to have anything to do with the person involved — such as Erie Railroad v. Thompkins — where the poor man and his personal injury accident award were — for practical purposes — almost immaterial to the final outcome on appeal. His case award was ‘railroaded’ to curb liability exposure of railroads in a new judge-made national social policy. That judge-made policy made war on the state common laws of personal injury and contracts, in those cases that could be removed from state court to federal court under diversity. In this landmark decision, the court circumvented Congress, avoided a Constitutional Amendment process, cut out one state court (NY common) law, by hearing it in federal court, then remanded it back to a different Pennsylvania state court, where the award was dismissed. The outcome favored industrialists and interstate commerce, over an individual who lost his arm. The federal court raised the (state) bar for standard of care to hold a corporation liable. The impact on state common and judge-made law (the foundation of most contract and personal injury claims) is that federal court favor interstate corporations, and the little guy goes without remedy if his state claim is removed to federal court. Another law orphan.

QUESTIONS FOR CONSTITUTIONAL STUDENTS Why wasn’t it the role of Congress to pass a law limiting the railroad in matters of interstate corporate liability as a matter of national policy? In 1789, Congress allowed the U.S. Supreme Court to review state court decisions that rejected federal claims. In 1914 Congress broadened the scope of that law to include state court claims that asserted federal claims. But it never did pass a law that allowed federal court judges to rule on the merits of state law claims. Until 1938. Now Thompkins doesn’t rule on the merits of state law per se, but it weasels around it, to apply a higher federal standard of care. That means individuals can’t recover for injuries allowed in state court, (caused by corporate liability) even if they bring their claims in state court. Corporations will move the case out of state court to federal court, where they are better protected under federal judge-made law. The question about whether this expansion of federal court authority actually required an amendment to the U.S. Constitution — goes to slippery expansion of court power (away from the Congress and the Constitution) plus questions about which branch of government is legitimately responsible for establishing national policy that renders state laws invalid or moot. Another law orphan. Some corporations, Monsanto, Enron come readily to mind as corporate images embodying “everything that’s wrong with corporate America…name(s) synonymous with unbridled greed, indifference to the environment, bi-partisan cronyism, and a demonstrated willingness to steamroll the little guy.”12 Pharma Bro’s Martin Shkreli was called “the most hated man in America” after “he raised the price of a life-saving prescription medication more than 5,000%” (just before the FBI arrested Shkreli as head of MSMB Capital Management.)13 Independent news collector J.P. Sottile provides references covering three decades of impacts from the old U.S. Supreme Court Monsanto seed-patent ruling — that revolutionized the mega-monopoly Monsanto. By creatively allowing corporations to patent and own seeds — they opened the court floodgates on so-called “proprietary enforcement litigation” against small farmers everywhere. The court’s corporate 11

A fascinating book-length study of how judges use common legal phrases as shortcuts around the law and the deconstruction of legal language — see Anthony G. Amsterdam, Jerome Bruner, Minding the Law, Harvard University Press (2000).

12

An extensive summary by J.P. Sottie, with numerous links, can be found online at newsvandal by J.P. Sottie, who published a comprehensive free news analyst/summary, Newsvandal, info@newsvandal.com. See Monsanto’s Willing Executioners, April 6, 2016

13

See story by Noah Bookbinder, Citizens for Responsibility and Ethics in Washington, December 18, 2015, citizensforethics.org.

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patent “policy” has resulted in a worldwide invasion not only “scientifically altered” GMOs, but pesticides (Round-up) into the agricultural chain, with untold and unstoppable effects on the food chain — as a matter of national policy that circumvented the normal lawmaking role of Congress. Monsanto’s Borg court-wars against individuals, farmers, organic growers, seed-savers are legendary in the protracted litigation abuses in the promotion of global GMOs profits (complete with no less than terminator genes breed into the product line.) There are other epic corporate litigation arenas, from Big Tobacco to Big Sugar, where industry scientists have been coopted, bribed, and controlled the so-called scientific research that judges use in court, but do not understand, because the research is fraught with the same internal biases and flaws as the court system itself.14 These corporate nuclear litigation assaults on ordinary citizens, ring all the bells and whistles noted in this book — where faceless, industrialized corporate irresponsibility and greed is an extension of corporate judicial ‘policy’ corporate that was spawned from Thompkins.

78 EX PARTE CONTACTS

§

Judges all understand they are expected to hold themselves apart and above regular society in order to preserve their integrity on the bench and avoid undue influence. If one side of a case engages in contact with the judge about the case outside the presence of the other party, there is an appearance of impropriety and improper influence. It is universally unethical. So the opportunities for undue influence comes with informal judge contacts outside of court. Improper ex parte contact also may be in the form of holding one-sided hearings.

EX PARTE HEARINGS This is when the non-moving party side isn’t given notice of the motion, injunction, or hearing request. So they can’t appear or contest it because they don’t know about it. It’s a one-sided hearing. Ordinarily, a judge may not meet with only one side — the other side must be present. The rule applies to any proceeding, order or injunction by the court done for, on behalf of, or on the application of one party only.15

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There is a bonafide emergency exception. An emergency hearing can be held ex parte if a threat of irreparable harm or unrecoverable loss exists if relief isn’t secretly granted. If an emergency condition exists, the judge issues temporary orders (for example, for domestic violence) followed up by proper notice with service about a later permanent order hearing.

6

Non-lawyers call it Ex Party, but say X PÂR-tay

The exception often gets abused when inside-players end-run to scoop assets (such as plug-the-springs tricks.) They ask for and get this kind of hearing without an emergency. It’s just a surprise ambush on assets. For example, my husband asked to be given sole ownership of our law practice, and later for ex parte attachments of my bank accounts, both without notice. Then the question becomes one of whether the emergency was a bonafide exception. I once asked for an ex parte attachment hearing. My husband’s former law partner had been disbarred (not the former partner who was the Supreme Court chief — the other third partner of their firm.) He subsequently formed an employee leasing company, and our office used his company for a short time. We ‘fired’ our employees and he hired and leased them back to us the same day. He was responsible for their taxes, insurance, and payroll. Unfortunately, he was (still) dishonest and failed to set up the employee insurance-health plan that he had collected money for in advance. After our employees found they were actually without the medical coverage they had been charged for, I decided to do an ex 14

See the story of University of California-San Francisco researcher, Cristin Kearns. Http://wwww.psmag.com/health-and-behavior/the formerdentist-u…January 19. 2016

15

Black’s Law Dictionary, 5th Ed.

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parte attachment of the corporate payroll bank account to recover our employees’ funds. The court granted me an ex parte attachment. The emergency was the funds would irrevocably disappear on the next payday if we gave notice in the normal way. We could freeze them now, or would have to go to Florida and search for assets to liquidate to repay our employees. The judge granted the motion, and I got the bank to freeze the account on Thursday at 4:50 pm, before a Friday payroll. The following week on Monday, we had a regular hearing. We got all the employee funds, and the 3rd partner got the balance back. It’s the judge’s duty to determine if the emergency reason is bonafide, before deciding an ex parte motion. Sometimes they hold the ex parte hearing but don’t act. Instead, the judge will order a regular hearing, give proper notice to appear, and hear both sides before deciding. This is a frequently complained about trick in bankruptcy and divorce cases where judges give ex parte orders when there is no emergency. Frequently it will be at the request of two court appointed lawyers working in tandem to screw over a third person. For example, a creditor/lawyer and the debtor’s attorney will request an ex parte hearing to seize debtor assets. Or the trustee and a creditor. The attached funds of a third person will get divided between the other two Insiders (conspirators) as fees, charges, costs or depressed sales, or other transfers approved by the insider judge. It is often a triangle of two (or more) self-dealing insiders, including a debtors attorney.

VARIATIONS IN EX PARTE TRICKS:

1. The clerk of court leaves a ‘notice’ phone call on an answering machine. 2. The clerk (or party) sends an email or text notice — at the last minute. 3. The clerk of court mailed notices to one side and not the other (several times).16 4. The court then pretends this non-notice was proper, and the hearing is therefore not ex parte. The judge issues irreconcilable or permanent orders even though only one side is present. 5. The judge refuses to re-do the ex parte hearing, or allows the ex parte order to run indefinitely into the future (or until trial). 6. Such an ex parte attachment on a bank account causes irreparable harm. There was no logical reason to seize my bank accounts, but Inside Players instinctively go for your liquid money first, using ex parte processes whenever if possible.

Sterling Norris, a retired county prosecutor who directs Judicial Watch’s Judicial Monitoring Project wrote, “Judges know they have the power and nobody’s looking and they get involved in an aggressive manner with the litigants.” “They get away from their objectivity.”17

EXAMPLE ONE: FLORIDA BANKRUPTCY Collusion between bankruptcy players happens when a passive or compliant judge turns a blind eye and goes along with insider self-dealings. One example involved four inside players and federal judge in a chapter eleven bankruptcy. The insider players included: 1. A creditor (the contractor of a commercial office building). 2. A bank loan officer, accused of embezzlement of a half-million dollars from the commercial loan, and bad faith non-approval of restaurant tenant/lease producing $11,000 monthly revenue. 3. The debtor’s attorney (who ended up partners with the contractor’s attorney). 4. The bankruptcy trustee. 5. All worked together to benefit each other by a scheme that began with improperly consolidating $5 million in assets, then dividing them up between the players. The bank became the lender to the former creditor. 6. The debtor was a corporation formed to build and lease a commercial building. The family that formed the corporation owned other family assets, including several commercial properties, a sports bar restaurant with liquor and gaming licenses, a large house, vacant land, and other bank accounts at the insider bank (not related

16

Rosemarie E. Hillebrand v. Thomas A. Hillebrand, Sullivan County, N.H., 83-M-209.

17

Judicial Watch is a private nonpartisan Washington D.C. organization that promotes transparency, accountability and integrity in government, politics and the law. It appears to focus on FOIA requests and law. Quote from Pasadena Starnews.com, Howard Breuer, July 16, 2001.

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to the debtor-corporation). All were in Las Vegas, Nevada — a region experiencing significant appreciation over the decade the debacle unfolded. In 1984, the insider cronies filed for a series of “impromptu bankruptcy court hearings”18 to plug the springs. Debtors received twenty minutes notice. At these brief, non-evidentiary hearings, debtors were given no opportunity to refute fraudulent offers of proof and paperwork, which the judge used as the basis of making the $5 million roll up of separate personal and trust assets, real property, and the restaurant business of various family members, including the children. The judge awarded the improper roll up to the insiders. “There was no paperwork, no financial consideration, no accountability, and no record of transfer ever being recorded anywhere. [The contractor] took the liquor and gaming licenses and put them in his name with the bank’s recommendation in a letter19 to the City granting the licenses. The bank then sold the building to the contractor in the following manner. [The contractor] offered $1,100,000 for the property. The bank turned it down. He then offered $900,000 for the property. The bank turned it down. Next he offered $700,000 which the bank accepted, financed, and loaned him $100,000 for the down payment.” These were permanent orders, made at non-evidentiary hearings ex parte20 that took essentially all family assets,21 including those outside of the debtor corporation. In another impromptu hearing, the bank claimed a deficiency. The victims asked for an evidentiary hearing so they could — “present evidence as to the values the bank had been reimbursed, in fact, and as to what they were entitled by contract and law. There was no deficiency and, further, the entire job was bonded so there could be no such legitimate claim.22 ….We were denied a deficiency hearing. ….The judge told us that the Bankruptcy Court simply doesn’t have the resources to allow hearings or jury trials for debtors.”23 When a judge short-circuits the established notice process and finds the court doesn’t have time to do its job, a victimdebtor has little recourse.24 In this case, the fleeced victims spent ten years and another $140,000 looking for another lawyer25 to right the wrongs including the conspiracy to defraud the debtors in bankruptcy, and the self-dealing of the players assigned to handle the assets. Eventually, they pursued a Court of Claims lawsuit, followed by appeal to the U.S. Supreme Court.26 Meanwhile, a federal court trustee began investigating their claims, but Author Karin Huffer writes:

CHAPTER

I was terrorized to the depths of my soul when Mr. Sousa (our new lawyer) reported he could no longer do his job as he had been confronted by Federal Officials who forced him to sign a letter of resignation and placed him under a gag order for five years.27

6

18

Taken from the written testimony submitted by Dr. Karin Huffer, to the U.S. Senate and House Committees on the Judiciary, June 18, 2007.

19

Emphasis added: note the other sneaky judge trick: authorities give legal weight to ‘letters’ by treating them like judicial ‘orders’.

20

Taken from two cases presented by Silencing of the Lambs, National Judicial Conduct and Disability Law Project, Inc. to the U.S. Senate and House Committee on to the Judiciary, June 18 2007.

21

In New Hampshire, Elizabeth Jean Allen, the trustee of the Jean E. Vorisdek Family Trust, relates a similar trustee/judge corruption in Vorisdek Family Trust court administration, Supreme Court, Docket 2005-0814, SN Servicing Corp/Ingomar, LP v. Vorisek Family Trust; Ms. Allen similarly also attempted for years to get someone in government to listen and she also attempted to give evidence and was blocked at the state impeachment proceedings. Ol’boys in government consistently block public criticism and investigation. See affidavit of E.J. Allen at nhjustice.net

22

The debtors wanted due process rights for notice and opportunity to be heard in a case where the judge was rushing though based on unread and fraudulent documents, and oral attorney claims. See SJT on attorney offers of proof.

23

Huffer, U.S. Senate testimony supra at page 3.

24

Several of these bankruptcy cases also relate to fraud on the court.

25

No one wanted the case because of government threats. Threatening the attorney with professional conduct charges or disbarment is common in this kind of crony insider case.

26

Both were denied.

27

“Anthony G.Sousa, Esq. was the United States Trustee for Region 17 covering bankruptcy administration for the Northern and Eastern Districts of

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Threatening the attorney is a common tactic used to silence lawyers from reporting Ol’Boy misconduct and fraud. They can’t force a lawyer to resign from a case. What I suspect is the Insiders were alarmed that the victims were fighting back, although thankfully the family used an attorney (another country club member) to do so. It’s easier to control members of the club — apply some threats, and they will resign. Had the family then picked up and pursued say- an investigation in pro se — against a federal bankruptcy judge, the bank officer, and the two other attorney/trustee/ lawyers, the family members would have signaled they were jeopardizing the careers of all four men who had stolen millions in assets. A convoluted theft — by deliberately undervaluing and re-characterizing assets — done under the cover of unethical court practices because the judge didn’t have time to grant evidentiary hearings. So, it’s legalized or legal looking self-dealing for Insiders. How sophisticated. It comes in layers by people who have the authority of court appointments. Then it is rubber-stamped by judges — twice. Does that not count as theft? And conspiracy and improper use of authority? Apparently not in a federal courts of law.

The need to protect Insiders (even self-dealing attorney-trustee-thieves) raises the stakes. The targeted family suffered untold already — but had they pursued it alone, the escalation against them would have, I suspect, become exponential. Their attorney apparently felt it was prudent for his career to put his interest before that of his client and so he resigned. I was disbarred under that charge. Was it right then but wrong now? Were the circumstances different? Is it even a real crime? Or is that allegation a flexible legal sounding one, usable for whatever the tribunal wants it to mean for the occasion? Sadly, no one is asking, no one is looking, and no one cares. That is an example of both the lack of transparency and accountability anywhere in the legal system. In this federal bankruptcy case that took the life work of a multigenerational family and caused a life-altering negative consequences, no one cared enough to fight. Maybe it was impossible to win under the Ol’Boy System that is our law system. So the family’s lawyer saved his own lawyer skin and abandoned his clients. 28 Remember that old tedious Chapter One Homework we did on how judges make FOFs? The bottom line is a judge has power to find that some fact that is patently untrue is true. That’s one of the critical keys to so-called legalized’ takings.29 That and bending court rules to avoid hearings. Is this morally sustainable? I don’t think so, but the morality of life has been substituted with a more flexible, case-bycase, relative morality in courts of law. This is why I found it important in my path to conscience to start the contemplative work of finding out for myself what I believed about the death penalty. That decision led to others. I decided for myself that it was not moral to kill people as punishment but for example, I could kill animals. Then I killed my own lambs and chickens, and that made me think again about the moral correctness of that decision. By the time I finished wrestling with my own moral code about all the life experiences I needed at the time, I was a different person. I still eat chicken and lamb — love it in fact, but the Navajos have a philosophy about life that has more respect for life than Westerners do, so I chose to embrace that. This emphasis on individual moral code is part of the American revolutionary conscience (but not the seminal history of royal and religious court systems.) Therein is the rub.

California,” Id. at page 4. 28

Good things come from ashes. Dr. Huffer is a psychologist and wrote an insightful book about the medical impact of court corruption. Her medical practice centers on helping others, including legal abuse and personal with non-apparent disabilities in court. She is at the John Jay College of Criminal Justice, NY, NY, www.equalaccessadvocates.com

29

This was common in the 1980s when bank/savings and loan instituted thousands of improper HUD foreclosures and takings. Insider dealing is a form of white collar crime that rarely gets processed with the same zeal as lower class theft crimes. It’s a class bias in prosecution and courts, giving preference to people who look like — lawyers and judges.

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My periodic analysis of soul has empowered me in the face of later challenges. What’s really interesting to me is that when I have, in great frustration and sadness, called out for spiritual guidance, (for example as the Hufferfamily must have done after their attorney resigned under threat) and asked God to give me the lessons and insight to solve them, and the universe sometimes responds with an information and experience dump on me. Many of those spiritual lessons are not comfortable or what I wanted. I wanted money to pay bills, for example, or a loving partner. Instead, God sent a life lesson of a bully with a bullwhip that threatened my animals. In fact, some lessons can be downright degrading or frightening. But they are what I asked for — send lessons, so I can study and know my conscience and my morality to test my conscience and humanity.

EXAMPLE TWO: PIECEMEAL DIVORCE TRANSFERS The same pre-arranged transfers of large amounts of family assets (changes of title and unfair liquidations and devaluations) also occurs frequently in the divorce cases I review. There may or may not be ‘temporary’ orders issued, but the judges in these cases unfairly jump the gun to distribute valuable assets in advance of a full hearing and an overall fair distribution — because the assets are liquidated or awarded to one side — months and years before final trial on the merits. It is often an Insider ambush. These ex parte piecemeal transfers are permanent, although under the statute they should be the subject at a minimum — to accounting and division at trial. But by time of trial, the joint assets are long gone. Expended, hidden, or transferred, they are unavailable to the victim of this judge-facilitated scheme. Often they don’t even get mentioned in final orders. They are long gone. (In my case, the $100,000 held by the Court Clerk was soon depleted.) The accounting and math is atrocious and self-serving; it often double-dips, and of course, favors payments to cronies and other club members. The paltry balance, if any, goes to the Insider.30

STYLES OF EX PARTE COMMUNICATION OUTSIDE OF COURT

CHAPTER

A one-sided meeting is unfair but because it violates judicial rules of conduct, it can also be an impeachable offense, as we saw with Brock at hockey practice. Court rules provide no side can have an outside contact with a judge about a case. So secret contact is manipulated in passing by a quiet word during a quasi-social professional encounter. Judges mix with lawyers at bar events — informal interactions away from court — over meals and at removed locations. Club members must pay costs and fees, but judges don’t; their expenses are covered by court and bar budgets and judges are sometimes paid fees to attend — for example corporate America and Universities and other groups pay for judges speaking fees and all costs of what is a free vacation, teaching a course for several weeks or months, and quiet social access by that level of American society to judges.

EXAMPLE THREE: INDIRECT COMMUNICATION WITH THE JUDGE It took thirty years for Mississippi Prosecutor Bobby DeLaughter to get a KKK conviction in the 1943 assassination case of NAACP leader Medgar Evers. A decade later, this celebrity prosecutor (then a Hinds County Circuit Judge) became a criminal defendant himself, over alleged ex parte favors he made for friends. In 2009, he entered the court shackled, under indictment for bribery, obstruction of justice and conspiracy.

6

He denied having ex parte contact with the attorneys of record in the case. Technically, he was correct. The numerous substantive secret discussions he had were all with an attorney go-between, who the judge knew was acting on behalf of the defendant’s lawyers. The go-between was DeLaughter’s best friend, hired by defense counsel to exploit his friendship with the judge. The go-between colluded with the district attorney and a former state auditor, to protect the defendant’s assets from being seized after defendant was found guilty. The conspirators offered not only bribes, but exploited the judge’s ego and his hunger for a federal appointment.31 30

By recollection, I was awarded a division of assets equaling a negative $177.16. (After a 2nd trial, involving the valuation of several million dollars in assets amassed during marriage — amassed in large part because I contributed services without pay. I actually argued slavery was illegal, justifying an equitable share of the marital assets. I lost.) My attorneys were paid $105,000 from the ‘trust.’ Judge Coffey manipulated with a perverse sense of humor.

31

Jerry Mitchell, “Hinds Judge Faces Federal Charges,” Clarion Ledger.

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No one called it pandering or collusion. Heck, they wouldn’t even call it lying. But two of the four accused attorneys recognized a favor,32 and cooperated to plead guilty to conspiracy. The judge acted to minimize financial liability and preclude (the client’s) exposure to excessive damages.33 In normal English, that means the judge helped a guilty defendant hide his assets, so they wouldn’t be available for post-judgment taking.34 Often in insider influence cases, the defendant-judge will escape conviction on the merits. Talking outside the courtroom about a case with an attorney who is not technically the attorney of record is a twisting of technicalities. Clearly it evades spirit of judicial cannons about improper influences. But the only charge successfully prosecuted may be when the judge lies to federal investigators.

IDEALIZED POWER AND AUTHORITY The legal system touts judges as the idealized authority figures at the top rung of our society — above questioning, above accountability, in an internal system without transparency. But what happens when people (in the system or using the system) are not allowed to question? Judicial power and authority have become so idealized over the last half-century that the message of the legal system is people cannot trust themselves — but instead are required to trust judges, and prosecutors, and lawyers — the Insiders. And I have collected thousands of reasons, thousands of pages of history for why that system of trusting judges is not working for most Americans. This kind of masculine energy has moved too far along a path of tyranny for a healthy society — where trust cannot be personal within an individual35— but it is universally assigned to those who have assumed control over the rest of us by rank, status, formal procedures and intellectual trickery. This book is not only about how judges lie — to convince us to trust them based only on their love of power and their authority of office — but how judges lie to themselves. In each of these cases cited in this book, I wonder how the men and women involved in bad acts avoid seeing themselves as outsiders see them? Where is their objective truth? What I find is — in an Insider system, if what they do works — if they can get away with it — then it’s true, even if is not objectively true. Even if it is false. Even if it is corrupted and it’s a lie. As long as it works and they are not caught, then it becomes their truth, and they stay powerful and in charge. Some of this deceit in the process is built into the system that controls and regulates itself. Some of the deceit evolves out of the type of person who is most likely to become a judge — an actor who seeks power over others. Some of it has evolved out of the American sins where so many in our society aspire to success, power, money and authority — that upward mobility that does not tolerate mistakes and failures. That kind of personality that can’t stand face failure or guilt, so lies to himself to avoid it. By lying to themselves, this legal system reassures those inside the system that they are superior to everyone else. The poor are unworthy. Outsiders are unworthy. They deserve to be the losers. Those on the inside deserve to be on top. This system has no desire to change. Why should it? There is no insightful evaluation to view the judge-decision process from the outside, to review or see their own behaviors objectively. There is no external public pressure, no personal financial liability, no facing jail time, no deterrent. It is not about objective truth (something everyone can see and identify.) — The truth of judges is their own truth — they are used to thinking that what they say is true — and not. And in this way, judges don’t have failures. As long as they stick together, convincing each other, dependent on each other for their group success and institutional power, then the system will continue to work in that closed-off process. “Trust us” the Clerk of State Supreme Court said to the legislative study committee on judges, two weeks before he reported a Supreme Court Judge to the Attorney General for indictment. Don’t trust yourself is what is unsaid. Trust yourself. The individual has no place in the legal system — not as an individual conscience, not as an individual morality, not as American independence and courage, not as the ‘We the people’ in the Preamble. That’s why judges 32

“Two attorneys, Tim Balducci and former State Auditor Steve Patterson cooperated with authorities and plead guilty to a judicial bribery scheme.” As reported by Jerry Mitchell, Clarionledger.com, February 13, 2009.

33

As quoted in Clarion Ledger, at page 2.

34

This is the same charge that N.H. Judge Patricia Coffey beat- when she hid the family assets in a trust when her husband, John, was disbarred, to keep from having to pay the bar association for John’s cost of prosecution. Many times it takes multiple cases to finally get this kind of insider judge removed.

35

A personal conscience — the basis of one’s own morality and ethics.

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who show compassion get drummed out — and the sixteen ways of deconstructive thinking I explain (about how judge rulings aren’t logical or rational) doesn’t matter to them. For judges, it isn’t necessary to use logic or reason — only the appearance of it. Court users are expected to demonstrate a intentional effort to avoid provocation. That’s why judges don’t have to take care to get it right. The outcome gets so twisted around and doesn’t really make sense. “Sometimes we write gobble-de-good” is because judges don’t need to care under the system they created. Their system is for them — not for us.

This book is to reassure you that in the world beyond court, the truth matters, and therefore deceit matters, even if you can’t fix it.

So the exercises and suggestions I present — are for you, the reader, the loser and the outsider — because in your cases, you are the people who care about truth. If only to demonstrate to ourselves that we are being lied to and manipulated in court — systematically, repeatedly, by a type of individual who does not care about American spirit or the experiment of democracy — at least not as much as we do. They have greater concerns protecting their alternate legal system — keeping it intact, avoiding exposure and censure. Deceit. Judges and leaders and ol’boys don’t like to be told they are deceitful, because to acknowledge that is to require accountability and change. They can’t see it; don’t want to see it; have no reason to change. They are afraid of change and afraid of their own deceit. Fear. For me, this deceit represents a capital sin — because of the relative position of power and authority judges have assumed for themselves, and how they administer it so carelessly against the rest of the country. The demand for unquestioning attorney loyalty within the system is a response to the fear judges have — what would happen if those in the system were to question their rulings or attempt to hold judges to an external standard? Court is an artificial environment, with high obedience norms that suppresses resistance, opposition and criticism. Failure. Through failure, God helps us find victory and faith within ourselves, but that doesn’t give anyone justice. Justice is supposed to come from judges — so I believe honest Americans have to help judges find their failures, so they can grow into providing actual justice, not just the show of trials and a mere appearance of legal process.

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ANALYSIS NOTE — COLLECTING EVIDENCE OF A JUDGE’S EX PARTE CONTACT

6

Absent incredible luck, such as having a work-out partner mention to your private investigator that he overheard the Chief administrative judge at Rotary talking to one of the Executive Counselors from the Governor’s office (don’t laugh, it happened) or people who surreptitious call you or drop by your house at 7 AM (including a clerk of court, bless ’em) — to tell you about what they observed at court or what they know about a crooked judge. They can’t do anything about it, because it would jeopardize them personally — but they know when something is immoral at court and told me that my case was irregularly handled — not by the book. They want to help. But quietly. Safely. Repercussions for talking to me could have destroyed his career and his life. [Note of Thanks.] Thank you each, for your courage and willingness to see and act. You lessened my pain and gave me new direction and hope when there was little external hope. I considered your visit a sign that I was correct that there was something stinking at the courthouse. The honest decent workers within the court system would act to correct these abuses if somehow society can remove their justifiable fear of being retaliated against by judges. Some are lawyers; some are clerks. The legal system can right itself if the legislature can get judges under effective external oversight or out of the way. It is a huge mistake to have courthouses and staff run by judges.] By the time my case reached this stage of gathering evidence, I found that almost no one I knew wanted to use the phone or be seen in public with me. But they want to help, and know that what was happening was immoral and needed correcting, so they arrived unannounced on my doorstep at all times of day and night. Reports on insider-corruption may also come from jilted lovers, former spouses, and fired and scared court employees, so the process of discovering that a judge had ex parte contact may be highly unexpected and serendipitous. 400

§78 Ex Parte Contacts

ANALYSIS NOTES ON THE EXAMPLE OF THE HONOLULU ADVERTISER BUILDING SITE. If you suspect your judge has had some kind of ex parte contact, start by reviewing the written orders and compare those with your memory, with the trial transcript, and with the evidence list, to see if the order contains information not brought up in court and not contained in court documents. Honolulu Judge Abe transferred a valuable joint marital interest over to the husband as his separate property allegedly as re-payment of back taxes, years after trial. The example was referenced earlier in financial tricks, but it is a good example of multiple tricks including this example of ex parte knowledge. The asset and financial statements were never mentioned or listed in the hearing record. The judge and husband’s lawyer played racket-ball at the Honolulu Club, and a locker-room acquaintance provided the tip-off about this judge-attorney collusion, and also that the fee-simple real estate was about to be sold at a great profit — to build a new home for the Island’s main newspaper. The property value at divorce was nominal, but it was sold shortly after Abe transferred the wife’s interest to the ex-husband. He made about a 30:1 profit. By using generic language and not $ amounts, the Judge was able to conceal the unequal accounting and unfair re-distribution. His ex parte conversation was never disclosed. You have to dig it out — that there was nothing in the court record. Remember how hard it is to prove a nullity? Example: A quiet phone call from a sympathetic attorney who grew up in the same hometown provided me with my first tip that the judge was a close friend and former business associate, trusted for appointments to cases where his legal bills would be rubber-stamped by the court. I had no idea that JNad sold his law practice to McNeill, or the two had been involved professionally and personally in and out of court with each other for years. Neither disclosed anything, and both violated numerous rules of professional and judicial conduct. Neither the Court of Appeals nor the Ethics Board cared. Two years later in a professional conduct complaint case, I discovered phone bills of an hour-long call with JNad on the date he made the GAL appointment in my case. JNad ordered me to submit a list of proposed names for this appointment, but that was a sham. He created the job to funnel my business funds in a court ‘trust fund’ to his friend as fees. He tried to cover over his ethical violations, but the call occurred even before my list of nominee names was turned into the clerk’s office. Chuck and I had one mutual name, but JNad had already funneled this lucrative assignment to his friend. I went to the state law library archives and combed years of Bar News and found three more personal contacts between the two men that were never disclosed. The two had a career lifetime of working together — and neither mentioned their conflicts of interest or how the judge improperly created this unique paid position for his friend. My brother Greg also discovered an early Judge Coffey resume in the state file archives (when she was a law student clerk for Judge Gray.) It listed her experience sitting as a district court judge on district court cases, when Judge Gray was conflicted. The hardcopy state archives are interesting — in a way a lot like Chuck’s lifetime habit of clipping newspaper scandal for dossiers on his enemies. Blatantly corrupt judges often demonstrate arrogance so flagrant that they openly commit ex parte contacts during the case (and on appeal) with impunity. Remember judges do not expect to be reviewed, or if reviewed, that they will not be overturned — and not for discretionary rulings, no matter how biased individually or cumulatively bad the orders are.

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EX PARTE REVIEW OF FINANCIAL AFFIDAVITS In financial tricks I described the details of how Judge Coffey kept Chuck’s financial affidavit on her desk and refused 20 requests to let me see it — (Chuck mailed me a version that was blank.) I go back to this example because it is a good teaching tool — how judges are sometimes blatant in breaking the rules about ex parte contacts because they already know from prior cases that they will get away with it. They know that the rest of the court system will cover and protect them. There is no deterrent. They do not expect to be accountable. In the meantime, judges become more callous in rulings because they know they are exempt from punishment. The Judicial Ethics Committee waited years to remove JCoffey for a non-moral turpitude allegation (sleeping in court). It was a face-saving excuse, meanwhile, she created poverty and havoc by public misuse of her position, in service to other Insiders.

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My whole divorce handling was all very Alice-in-Wonderland — not following any of the statutory or case laws, guidelines or rules36 — very fluid procedures and collegial in granting all of my ex’s many motions and requests.37 Remember, rules are limits on a judge’s discretion, so when the appeals court refuses to seriously review these rule violations they are ignoring blatant abuse of discretion and a judge who repeatedly and consistently ignores the law. So there is no place for a defendant to go for relief. Judges get away with it again and again. If you object, they may call you crazy and act even more vindictively to ‘enforce’ your ‘respect’ for their abuses of the law. The fog of court (where judges don’t acknowledge limits in law) is much like the insight into authority about the Vietnam War. The Fog of War, a remarkable documentary of Errol Morris interviewing Robert S. McNamara, Secretary of Defense. It demonstrates that same out-of-touch detachment and lack of personal responsibility by leaders in another powerful arena. It seemed like both judges in this case believed they were immune from rules. Like having a magic-judge-wand to transform whatever they said by a wave — making it ‘true.’ At least five other judges in two reviewing courts found nothing wrong with this imperial redistribution process that ignored the rules and law in my divorce. This Douglas cases is a study in insider abuses. Other people have come to me with cartons of document claiming similar trouncing at the hands of judge. I believe them, but none were practicing family law as a lawyer as I was.

It was like the rule of King Henry VIII — where most ministers and statesmen were afraid. They built estates, wealth and personal power on the pleasure of the King. That was the period between centuries of Ecclestical law (ruled by the Pope of the Roman Catholic Church), and Henry’s new and pliable English law. What was law and what was fact became whatever the King wanted it to be at the time. It changed with his whims. And nearly everyone in authority shrank back and was afraid to speak or judge the truth. Those that dissented got racked and tortured to change their minds, and then beheaded or burned on faggots.

So why do we find a similar pattern of ruling by whim practiced in American divorce courts? Or in any court?

CHAPTER

Courts don’t correct bad judging. Judges who use weasel reasoning and biased fact selection, know they are not going to be corrected. Trial judges are protected by appellate judges. Individuals have tried for decades to right these case wrongs and failed. So until public outcry demands the legislature remove individual judges by address or for a Constitutional restructuring of the court,38 New Hampshire can expect escalating of the evasive judge patterns. Most won’t care, until it happens to them.

6

There is no statutory and administrative protection to call on, or file a complaint with. Appeal judges avoid these unfettered abuse cases, allowing bad judges repeatedly to act with impunity. There is no other way to hold the judge accountable,39 to obtain equal treatment, to stop the train wreck. There is no judicial standard of care, no bright line of judge ethics, no hard rule about judges unequal extra-legal treatment. This pattern of “purposefully unequal treatment

36

The N.H. case of Shaftmaster clearly defined the rule of exchange of financial affidavits before judges can make financial rulings. If there was any ambiguity in the law, Shaftmaster solidified rule requirements of 10 day advance notice, for full and mutual financial sworn disclosure exchanged between parties.

37

If I hadn’t written the state treatise on Family Law Practice (for Lexis-Nexis, Thompson, and Butterworth), I could never have sorted out just how many informal, due-process violating orders were made in one case. It was as thought the entire divorce was ad hoc at a judge’s whim. Sadly, other cases do the same thing and consistently avoid the Rule of Law in the outcome.

38

In New Hampshire the legislature has restructured corrupted and usurpatious judges several times in its state and providence history — including abolishing courts and reorganizing judges. See Law Review Article by Richard Upton, New Hampshire Bar Journal, October 1958 at 28.

39

The Judicial Conduct Committee frequently dismissed complaints even before filing. The workings and mal-workings of the committee are covered in the second volume. The Supreme Court Attorney-clerk, Howard Zibel testified that New Hampshire had the toughest attorney discipline in the country, and another time he testified about the state’s lenient discipline of judges. The two function together — to overlook abuse by judges and to clamp down to silence attorneys from reporting abuse. In wide scale practice, it means you can’t win if you are a lawyer; can’t lose if you are a judge. From a public perspective, those conditions represent unbalanced dangerous conditions for working in a profession that avoids uniform, scrupulous personal ethics, and manipulates discipline in an Inquisitional tradition.

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targeting categories of people”40 represents substantive injustice. Judges should be required to apply the Rule of Law. Many I suspect, do not know the rule of law, or even the rules of procedure well enough to administer them competently.

Perhaps a bigger question — is there a psychological propensity or a personality pathology in operation here? Since the Freddie Gray riots in Baltimore, Washington DC, and across the country, policy makers are questioning whether there are shortfalls in psychological screening of police officers? They are looking at pre-employment evaluations for positions involving public safety. So there is debate about the standards, how to interpret the evaluations, specialized continuing education, but the underlying question is about the emotional and psychological suitability of those who function in matters of public trust and safety.

The Journal of Applied Psychology has many studies including CEO Personality Studies that examine the dark side of leadership.41 For example, see a 100-years of data, compiled by Christian J. Resick (Drexel University), Steven M. Weingarden (Thinking Ahead LLC), Daniel S. Whitman (Florida University and University of Bridgeport) and Nathan J. Hiller (Florida International University) which in part, examines the role of narcissism and four different strategic outcomes. The parallelism of the court organization to applied psychological research is an area crying for application. Outside of one early treatise by Wallace Loh, President of the University of Maryland, the topic is untouched. With the advent of big data processing of public records, perhaps even court files will be available for social science research on behavioral patterns and traits of judges. Judge Ethics Complaints. Although not good for me personally, there was finally good news about the many complaints that litigants tried to file against Judge Coffey.42 After many noisy statements by me to the press and the legislature, and thousands of sheets of complaints and pleadings by me and by others, the public began to take notice. Judge Coffey was finally removed as head of the Judicial Conduct Committee, a position that allowed her to dismiss complaints before they were filed. She ended up being removed from the bench for a relatively nominal charge of sleeping through a criminal trial. She often slept on the bench, but this was a face-saving way of getting rid of a growing embarrassment without giving credit or credence to either the Gadfly or to me, or any of her other public critics.

ICE HOCKEY EXAMPLE When Chief Judge David Brock was deposed during his legislative impeachment investigation, he admitted discussing the DuPont case (Home Gas) with an attorney trying the case. (Senator Edward DuPont was President of the State Senate at the time.) It was pending in Rockingham Court; DuPont’s attorney wasn’t feeling good about his prospects, and thought his case was headed for review in the State Supreme Court. Both men talked in the locker room at a ice hockey practice. Neither found this ex parte discussion disturbing or worth reporting under mandatory reporting rules of judicial (mis)conduct.43

PHONE CALL EXAMPLE So Chieftain David Brock made a phone call44 to the presiding trial judge (Gray) in Rockingham County. Gray said it was the first time the Chief had ever called him, and when the bailiff approached came to him about the call, he was

40

Wallace D. Loh, Social Research in the Judicial Process, The Russell Sage Foundation, (1984), 95.

41

Journal of Applied Psychology 2009, Vol. 94, No. 6, 1365-1381.

42

For years, Judge Coffey either sat or chaired the state Judicial Conduct Committee, overseeing complaints filed against her. Most complaints were not docketed, or were dismissed without investigation or hearing. Complaints are secret and sealed (even the docket list) and the committee meetings were run in such a way that complaints were meaningless. So much for internal oversight.

43

Chief Judge Brock was my husband’s former law partner, and although recused, made special assignments for my appeals and conduct complaints.

44

During the legislative impeachment hearings and trial, the two Judges disagreed — one testified under oath Brock called him; Brock denied it. Two other judge-witnesses in the Rockingham Court corroborated that immediate after receiving Brock’s call, Judge Gray came and told them about it. Brock insisted under oath he never made the call. Judge testimony at the impeachment was 3 to 1 that Brock was lying.

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presiding in court. He took a recess to take the call. The Chief talked about the chairman of the committee holding up the judicial pay raise bill. Senator Edward DuPont was also a litigant in Gray’s pending case — Home Gas Corp v. Strafford Fuels. Who me? For over a decade, no one, including five members of the State Supreme Court, the court staff, one future U.S. Supreme Court justice, two prestigious attorney/officers of the Bar, the President of the Senate, the Clerk of the Supreme Court, or the entire Judicial Conduct Committee found this to be an offensive or unusual phone contact, and no one reported the contact properly as required by mandatory judge ethics reporting rules. In all, fourteen legal professionals, judges and attorneys forgot or overlooked the ethics reporting requirements that mandated each of them to provide notice to the Judicial Conduct Committee of this kind of improper ex parte contact by the Chief judge. So much for the honor code. In the meantime, a Rockingham Court Reporter was present in chambers when the Brock phone call (about the hanging Senate pay-raise bill) was reported. The Affidavit of Court Reporter William Wojtkowski is at Appendix E. Although deposed before trial for the Impeachment of Judge Brock, his deposition was ‘lost’ and he was never called as a witness.45 Senator Pignatelli from the sub-committee was present at the deposition. The Senators reported they were unable to tell which judge was lying, so they acquitted Brock.46 Instead of following the mandatory judge-ethics reporting rule, the entire Supreme Court ignored its own rules of judicial conduct, while fashioning a new secret procedure for internal reporting to avoid discipline. New Hampshire Justice David Souter authored an internal memo-to-file, which didn’t become public for over a decade. It came to light only during the impeachment investigation. Justice Thayer blew the whistle when he claimed the Souter-internal-memo-to-file was precedent for what he attempted to do a decade later, when he asked Brock to replace Judge Pappagianis from his divorce appeal panel.47 Thayer was right about that — the top judges did have a history of making a new rule to evade the mandatory reporting rule in the judge ethics rulebook.

CHAPTER

What was more interesting to me personally, was yet another example of judicial oversight that bent over to avoid the “lying to investigator” and other charges, which as I understand their parallel process against me, are disbar-able offenses. How about the charge of ‘putting a personal financial interest (the judge’s pay raise bill) above the interest of the client’? (the Home Gas litigants.) Now judges don’t get ‘disbarred’ per se. Justice Thayer negotiated to keep his law license by retiring from the Supreme Court, and the AG dropped the criminal and ethics charges. Judge Brock didn’t retire, and played an insider game of bluff — I didn’t lie about making a phone call to Judge Gray, he swore a half-dozen times to committee investigators. Yet, read the appendix and also the depositions also of Judges Gray and McHugh (online at the University of New Hampshire on line law school library.) That’s three people that testified under oath demonstrating Brock lied under oath to investigators, the Senate Impeachment Committee and the House sub-committee. So by way of summary comparison, sometimes judges find it is a disbar-able offense to lie to investigators about putting ‘a personal financial interest above a clients.’ And other times, it is not and there’s no problem.

6 45

See Appendix D, Affidavit of William Wojtkowski.

46

Impeachment is a highly political process. I was surprised to learn that Hillary Rodham, early in her new-attorney career, served as staff attorney on the U.S. House Judiciary subcommittee for the impeachment of Richard Nixon. The Clinton Impeachment model morphed later into the Brockimpeachment model, as directed by Massachusetts Attorney/Special Prosecutor Joseph Steinfeld. There is history unrelated to party-politics, in each of the various impeachment variations. It helps establish what rules and procedures and standards of proof will be adopted. This is done separately at the beginning of each impeachment event. So who influences the proposed model will help pre-determine the impeachment outcome.

47

In the end, the Chief got a pass but a lot of public embarrassment.

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“A lot of time in front of these committees, we get a very whitewashed, sanitized version of what is going on because the agencies want to look good when they come before Congress,” former Congresswoman Michelle Bachman recalled about her position on the U.S. House Permanent Select Committee on Intelligence. “They don’t want problems to be exposed; they want to look good. Our job is to find out what the truth is, what’s going on.”48 The role of the two separate branches requires each to do its job separately, and to understand what oversight of another branch requires. Otherwise, the democratic system fails.

CO-DEPENDENCE BETWEEN JUDGES When the court’s own judicial conduct committee met years later to review the behavior of the chief judge, two associate supreme court judges49 walked across the courtyard to the committee meeting to plead for leniency and dismissal of all charges for their friend and colleague the Chieftain. After they were reported by a public member of the Conduct Committee, they claimed they were just acting as compassionate friends and colleagues, not as supreme court judges trying to influence the committee outcome. Remember when we earlier noted judge sensitivity and feeling of compassion? That’s not for you, or for us. Judge sensitivity is for their own, but it is also important the kind of codependence judges have for each other, that blinds them into court “practices in hiring, promoting, retention and rewards practices that condones or selects based on unethical or willing codependence, and the intimidation of those who might have spoken up [that] ensured that dissent was kept to a minimum.”50

AUTHOR’S NOTE ON IMPERIAL THINKING Readers, do you recognize the same inauthentic black hat/white hat thinking here? And the arrogance of judge-thinking that the rules don’t apply to them? Powerful judges are not used to thinking their actions are limited by rules. Their understanding of ethics rules is — the rules were written by us — for others — but not for us because we wrote them.51 It’s a God-like dispensation from the authority that binds others. This internal perspective separates law into an us — them division of power. I can apply laws and rules against you — but you can’t apply them against me. The CEO personality study traced the roots of narcissism back to Greek mythology — where Narcissus fell in love with his own reflection. “Freud description is a personality disorder demonstrating a “pervasive pattern of grandiosity” coupled with a “need for admiration and lack of empathy” (American Psychiatric Association, 2000, p.717)” Also “hostility toward criticism and intolerance toward compromise (Deluga, 1997; Judge et al., 2006, Lubit, 2002a; Raskin & Hall, 1981). Arrogance is a core disposition of narcissist and the characteristic that is usually most apparent to others (American Psychiatric Association, 2000; Rosenthal and Pittinsky, 2006)52 Oakley in a section called The Delusions of Dictators calls this thinking process — emotion to fact, not fact to conclusion. “Decide first what is expedient to believe, then believe it.”53 This private ‘Imperial Thinking’ permeates the legal system and creates tyranny in a country that avowed — by the principles in the founding Constitution — to avoid tyranny. Would it have made a difference to those two “compassionate friends” if the legislature wrote the ethics rules? Would chief and these Supreme Court judges then recognize that all rules apply to them as well? I doubt it, but it might be worth a try.

48

Interview of Michelle Bachman, WND online independent news network, June 21, 2016.

49

Including the future Chief Justice John Broderick.

50

Barbara Oakley, Evil Genes, Prometheus Books (2008), 296-297.

51

This idea that rules are for others was clearly articulated by Judge Horton and Chief Judge Brock during the N.H. Legislative Impeachment hearings.

52

Journal of Applied Psychology 2009, Vol. 94, No. 6, 1365-1381 (CEO Personality Study) see Fn. 41, supra

53

Oakley, supra 304.

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Soon we will discuss the nature and attitudes of certain types of judge personalities that promote this kind of imperial thinking and acting. Not everyone thinks this way. But of those who do, come to it naturally, and, they tend to seek the power of judging as a career — really bad news for the rest of the country. And something to think about the next time you vote a judge into office. For now, being able to discern and name “imperial thinking” when it comes up in court is to Id a the judge’s behavior. Purple is an imperial (and religious) color. If you were to highlight Imperial Thinking in purple each time it shows up in an SJT, the visual will help everyone realize that how prevalent this kind of judge-thinking is in judge-abuse cases. It underlies and represents a systemic problem in court administration. It isn’t just a matter of differences in styles of judge-decision-making, nor is it a philosophical consideration about how law is conceived. It is the reason for abuse in both procedural and substantive justice — how judges actually do reason and how they should reason. The same thinking process is why judges can’t see it for themselves. They can’t see the problem. Education, more diversity in thinking and understanding how the current thinking process occurs, would help explain why the current pattern of elite-judge-thinking and perceiving has created widespread problems and unfairness across the legal system; why these problems are not perceived and corrected by judges; and it suggests re-education for judges to adjust and correct the problems they create daily across the country.] The judicial conduct committee public member54 who blew the whistle on the infractions of the ex parte rule and the improper pressure the associate justices applied to the conduct committee was later investigated for possible indictment for violating the committee secrecy rules — when she told newspapers about the improper ex parte contact by two other supreme court judges who tried to influence an ethics case. Do you see the psychopathic trait in action here? A lay woman does her ethical duty, and is threatened with criminal prosecution. It comes up over and over in these cases, and I can attest, they mean it. Whether a warning to others, or as a way to silence members, retaliatory threats and scapegoating is an inherent part of this judge-system. Whether a warning to others, or as a way to silence members, retaliatory threats and scapegoating is an inherent part of this judge-system.

CHAPTER

In a similar case in 1984, a U.S. District judge convinced the jury he was innocent of corruption charges, but the jurors convicted him of lying to a grand jury.55 Tricks come in clumps. Just like your mother always said — don’t start lying because you can’t stop. The trio of crimes was (1) ex parte contact; (2) lying about it (even if that’s withholding info or lying by omission); and (3) failure to recuse. In modern criminal parlance of prosecutorial over-charging, that probably could be 39 different criminal charges, if judges treated judges the same way prosecutors treat everyone else.

6

This morphs into the hand-in-hand popular judge favorite — failure to recuse when disqualified from a case. That abuse thread overlaps and is rarely addressed in any meaningful way. Here’s a case that made it up to the U.S. Supreme Court, which still failed to adequately address the multiple judge multiple violation issues of disqualified judges sitting and ruling on a case.

EXAMPLE: MONTE CARLO VACATION BUDDIES West Virginia Chief Judge state judge was photographed dining with president of the West Virginia Massey Coal Company at a waterfront restaurant in Monte Carlo, while the Massey case was on appeal of a $50 million dollar fraud verdict. The issue became not only recusal, but impeachment. The judge insisted it was merely dinner between two old friends, who happened to vacation at the same spot on the French Riviera. But then a series of photographs surfaced, showing the

54

Sibohan Tautkus was a lay person, nominated to serve as a volunteer the judicial conduct committee. She had some familiarity with the law and had worked in a law office. She was threatened with a criminal prosecution for disclosing committee secrets, after she quit the committee in protest. Two other supreme court judges asked the committee for lenient treatment in a disciplinary case. Note the scapegoating aspect of accusing a public person of a rule-violation (they inferred was criminal misconduct) while rationalize that the blatant ethical misconduct was a kind of superficial judicial empathy.

55

Jerry Mitchell, Id. at 2.4

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two men and their female companions over a period of three days — on the yacht — laughing it up in various forms of entertainment. Then the judge shifted his tune, claiming he could remain on the case because it was a three-judge review panel and he was only one vote.56 So he voted for his friend. At later issue in the U.S. Supreme Court dicta was not only actual bias, but “extreme facts” creating a “probability of bias.”57

EXAMPLE: SOCIAL AND PROFESSIONAL EVENTS The secret lines of ol’boy communication spread across many social avenues. Hockey practice, the racquetball court, athletic clubs, judicial conferences, Inns of Court, bar, and committee gatherings, and weddings. By rule, Judges limit their outside social interactions to avoid commoners, so outside activities center around bar and legal social functions, athletic events, and quiet politics. Judges lead sheltered, skewed lives. Their social, economic, and educational circles interact with like-minded socio-economic professionals and their families. Out of a N.H. state population of approximately 1.3 million, only 3,500 are in law and about 130 state judges. About 1 out of every 400 is a lawyer, 1 out of ten thousand a judge, so their social network is tightly limited. Incestuous even. It’s the new Peyton Place — the raunchy sexy bed-hopping community about 30 miles from the New Hampshire State Supreme Court building in Concord. Author Grace Metalious used a composite of four local New Hampshire communities to write a novel about small town skeletons — in roughly the same core location I write about. She wrote about 1957. That was roughly the birthdate of this smaller, more focused New Hampshire state bar community — now all grown up and institutionally rich and powerful. I write a non-novel but also reveal the ugly secret doings of a small professional community with the same Peyton Place beginnings. Grace’s book was enlightened entertainment — my focus is education and change. Grace was more disinterested; I write from a more painful victim point-of-view. She describes social selfishness and unfettered ego; I try to show the thousands of citizens — victims on the receiving end of this secret evolution of tyranny. Sneaky judges don’t exist in a vacuum — after a half-century of institutional manipulation, the social consequences to the rest of us are staggering. But no one anywhere is looking at or compiling what happens to judge-victims.

EXAMPLE: TAKE A HIKE A phone call between a U.S. Supreme Court Judge and one of his New Hampshire hiking buddies took an awkward turn when Justice David Souter pressured the attorney to switch his expert opinion about attorney fees and overcharging in a case. The expert opinion “would cause harm to a mutual friend”58 is how Souter phrased it. The lawyer and Souter had occasionally hiked together (a loose circle of White Mountain hikers.) He told me he was shocked Justice Souter even knew about his expert role in that case,59 much less would indicate a problem with the his professional expert opinion — (which was still in draft stage.) Although the conversation got later spun into a different story about not having lunch while the case was active — (a prudent spin to control collateral damage to a Supreme Court career,) I (and apparently a reporter or two) had already heard the original version — much more damning — directly from the attorney shortly after the infamous phone call. Finis Williams disqualified himself as the expert and took himself out of the case. Bar pressure cannot be underestimated in its importance for clearing (or mopping up) the career paths of powerful men. Without bar pressure, foibles and moral mistakes might start a scandal that derails a career. What a hard moral road that attorney trod — I know that he knew what was ethically right and wrong because he spoke about it to me and was deeply distressed about what he was going to do. It was to him a serious and moral dilemma. But eventually he felt great pressure to conform and cover for the judge, while finding a narrower path of conscience for himself. I know all three men involved — one occasionally went to my church and used to judge 56

Massey CEO also thought of that so we will look at how a second judge was compromised.

57

Caperton v. A.T. Masey Coal Co., 556 U.S. 868 (2009). This case/tricks continues in § Appeal/recusal.

58

Attorney William Glahn.

59

McLane, Graf et al v. Rechberger et al, U.S. District Court, State of Rhode Island, Docket 99-286-T.

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along side my husband on the highest bench; one was my abutting backyard neighbor, and one, another neighbor who I briefly socialized with. Obvious to me, the dilemma created a painful choice for him between hiking with royalty, what was moral, and a deep bow to peer pressure. Communication is a two way street. An ex parte contact between a boss-judge and a lower hierarchy judge communicates both ways: the boss can pressure a subordinate judge to provide a favorable outcome (for example, by the call to let the presiding judge know that the Senate Committee was holding up the judicial pay raise bill). In the reverse, a small pressure by a higher-ranking judge may be all it takes to make a recalcitrant attorney fall into line. Quiet little carrots and sticks. These types of exchanges are both subtle and secret. They occur at church, social events, the golf course and the gym. Each represents an effort to influence a case outcome, and each represents at least two court ethics violations that must be reported — one by the speaker, the other by the listener. It is mandatory, yet no one reports. I think wanna-be’s go along as offerings to belong — to gain acceptance by higher-ranking peers. It can be the scrum thing or an ambitious thought-out purposeful strategy (like when club members worked together to take out the gadfly from all cases before trial — including mine), or that co-dependence the institution fosters with lawyers. Or it can be survival — some attorneys do hate what has happened, but they fear for their careers and tickets to practice their profession. I know attorneys who are trapped — they told me so — it’s a financially attractive lifestyle, and once the family gets used to the money, walking away would mean a dramatic change in income and status.

CHAPTER

Judge’s conferences are great gossip exchanges to put a state law network on the same wavelength. Other times it’s small talk at the courthouse. Even friends and marriage connections may not understand the quid pro quo exchange required between the inner circles and regular bar members. The Arab connection between court, governor’s office, law firms, ran deep in New Hampshire. For example, JNad’s uncle, Joe Michaels, changed his name, but not his mannerism. Even when he spoke, his references to camel noses in the tent (and other cultural references) demonstrated his background. Even the the young days of the unified bar, there were strong but invisible Muslim/Arab cultural connections at the top of the executive and court branches. Even in the early days, money and hidden cultural ties helped form the state power base for generations to come. There is little to no negative professional consequence for going along with these ethics breaches — so after decades, insider moral breaches seem inconsequential. It has become the norm for court business — until something like an impeachment breaks.

6

Another example: It’s All in the Family. Two state supreme court judges married sisters. By attending the same regional schools and colleges, judges often inter-breed within the profession. Closely related is the political incest of spouses, who function as volunteers and professionals in the legislature, and who sit and chair critical judiciary and law-related committees. Then there’s the other problem of second generation nepotism, judge connections and power passed both through lineage and marriage.

79 CAMERA AND MOVIE STAR JUDGES

§

The ability of the judge to provide a neutral courtroom to try a case is one element of a judge’s duty in the courtroom — to provide a forum for fairness in process. How well the judge manages the atmosphere in the courtroom affects case outcomes. As a television producer, I have seen first hand the effect television cameras have on ordinary people. You can walk up to strangers and get a great reception by asking them to be on a television show. The chance to be in the public spotlight is a magnet to many people, including judges. When television cameras are allowed into the courtroom, it changes the legal process, and what steps a judge takes to eliminate or neutralize this bias means the difference between a fair trial and a public lynching. All players — including most judges — tend to ham it up or preen before cameras. Objections turn into speeches. Rulings become longer, dramatic oratory. Judges preen, looking for national celebrity status. I bet if anyone tested,

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§79 Camera and Movie Star Judges

there would be measurable chemical/biological differences in serotonin and dopamine levels of the brain caused by the excitement of cameras. We see it even in babies — who freeze and grin-it-up for home movies. It’s worse in Hollywood. It’s bad enough in newscasters and anchors.60 Why would judges dismiss the effects of cameras in a criminal trial? Cameras and what they represent — recognition on a wide scale — incite a theatrical response — not the boring old presumption of innocence and due process. The effect of cameras in the courtroom produces three kinds of unfairness: 1. The atmosphere changes in such a way that indirectly impacts the rights of the defendants to a fair trial. Those become secondary or lost altogether to the seduction of cameras. 2. A ham factor impacts and exaggerates judge responses as well as actions and thoughts of most of the other players. 3. Pre-trial publicity creates a public perception of innocence or guilt, and even judges are swayed by the contest that turns trials into a self-fulfilling popularity circus. Those responses have an ego component — call it the lure of the spotlight. 1. It shifts the focus of the trial from the job of determining guilt or innocence fairly, to other ego-centered concerns — what’s in it for me? Can I make money from interviews? Am I being seen on television? How do I look? Will people like me? The players lose both focus and control of their responsibilities at trial. 2. If an attorney, the media coverage suggests new business, new clients, name-recognition. All that is a diversion from the job at hand. 3. Media can lead to uncontrolled reactions from others — threats, fan clubs, reporter interference, even lurid sensationalism that improperly influences. 4. Jurors, witnesses, spectators and judges will defer to the social consensus of media reporting. In the Smart case, even a year before trial, the media consensus was she was guilty of murder. 5. Now, she was never charged with that, and no one claimed she was even there. But in TV-land, it is acceptable to jump over the details, so the show fits into 43 minutes plus commercials (the one-hour programming slot). Conclusions therefore, are perfectly acceptable without going through the steps. But for trial, those deliberate steps are essential for a fair judgment, so if the media conclusion precedes the trial — the judge sure better take a bucketful of precautionary steps to identify and overcome the media impressions tainting the juror pool and dealing with the increased drama that negates fair play and the sense of justice.

CLINT EASTWOOD ON THE BENCH In New Hampshire, dozens of satellite broadcast trucks and hundreds of camera crew swarmed the Rockingham County courthouse. The opening minutes of the first day of trial. Judge Douglas R. Gray announced his decision to open the courtroom to press and television cameras. He set the stage for what may be the most unfair trial ever held in the state. Certainly it was a national first — live gavel-to-gavel television coverage — the first live reality show/trial in America. Nationally broadcast. I hope Clint Eastwood plays me in the movie. Announcement of Judge Douglas R. Gray — presiding judge to jurors.

It had been a feeding frenzy for two years before trial started, and at least two soap-opera style movies helped bias the jury pool months before the jury was selected. At the start of trial, with cameramen, reporters, lighting, plus sound crews jockeying for position in front of the jury, this added dimension brought a new intensity to the already circus-like atmosphere of Pamela Smart’s trial. The jurors plotted how to capitalize on this — what they could do or sell to make their juror opportunity more lucrative than the puny daily juror fee they received. When he learned of this later, Judge Gray had no problem with three jurors planning from the start to capitalize on their good fortune at being selected. He

60

God love her, my daughter was a newscaster for NBC. She is soft-hearted and caring, and has great insight into the world of the competitive frenzy of on-air broadcast television.

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refused to sequester, and even when a juror was discovered in a bar discussing and bragging about his juror role after a hard day in the box, Judge Gray saw no problems. For everyone except Pamela, her parents and her lawyers, trial was a carnival61 or theater. The defense team had no time to prepare or plan for the unanticipated effects the media circus would have on her ability to defend herself. (If that was even possible.) Cameras affect the behavior of everyone— including jurors (some who were looking to profit and become celebrity television guests.) And the co-conspirator witnesses — who manipulated stories and cried on cue to present self-serving images that sold on national television. To the judge — who adapted his usual terrible behavior to something that would make Clint Eastwood want to play him in a movie — when Pamela Smart was found guilty. If she was innocent, what would have happened to sales, the press and television interviews, books and the movie offers? When Judge Gray again joked with jurors, You got’ta get Clint Eastwood to play me in the movie — and his choice of actor was revealing. It reflected this judge’s personal sentiments as presiding judge, where at some level he perceived his position to be of a caliber commanding a top-grade actor, whose trade-mark characters were always in the heavyhanded pursuit of justice. Shoot first, talk later. Personal justice, vendettas, and the absence of due process. Aw, come on, Caroline, you’re taking this too far — Judge Gray was just making a joke. Lighten up.

DO THE JUDGE’S COMMENTS IN JEST REFLECT A PRE-DISPOSITION?

CHAPTER

Clint Eastwood plays hero-characters who administer a highly personalized style of vigilante justice, violently, and outside conventional and legal boundaries. Okay, so he’s a vindictive avenger. Selecting this actor out of all possible actors (except perhaps Arnold Schwarzenegger) represents a gender-laden impression, inviting more speculation. Or was the judge’s joking comment to the jurors and the press reflective of his lack of sensitivity and the seriousness of the occasion? The words of an ignorant man whose failure to assess his own ability to provide the elements of a fair trial in the middle of a circus that he created? Was there more? Almost everyone agrees, Judge Gray did not control the lurid sensationalism attached to this trial.62 In fact, he was clueless about the implications to a fair trial. He also seemed clueless about his own duty — as the presiding judge. Because I had the same judge in my first professional conduct star-chambers trial, I am sensitive to a lot of the nuances that judges ignore or employ that deprive defendants of minimum due process constitutional protections. Omissions and insensitivities that removes the platform of courtroom fairness that makes Judge Gray case outcomes so highly questionable, that they deserve extra scrutiny. Since appeal judges are not willing to do that, it is the public who must scrutinize. This trial— Had no advance notice that the trial would be televised. Was the first case in the country ever televised gavel-to-gavel. The first-ever reality television show — and a jury murder trial.

6

The defense had no warning, preparation, or understanding of what being live on national television — for every aspect of every day of trial — would do to the people involved in the case — in and out of the courtroom. In barrooms, in future negotiations to be a 15-minutes of fame juror, in future national television interviews. And for the 3 teen-age co-conspirators who were not on trial, but were prosecution witness. The gravitas of how they looked, and performed, on national live television, night after night across the country.

61

More than two decades later, this trial is still called a “media carnival”, is still controversial, and is still in the spotlight as so tainted with pre-trial publicity and biased stereotypes that Judge Gray failed to provide a fair forum. Instead what he as the judge did or didn’t made it much worse. Gray was never known for truth or fairness in the courtroom and he got swept away and did nothing to provide fairness during trial.

The media theme was sex-crazed temptress teacher and innocent, but murderous students. See also, Captivated: The Trials of Pamela Smart, Film and TV on HBO, as reported by Amy Nicholson, in Sundance: A Documentary Defends Pamela Smart, the Sexpot Schoolteacher Convicted of Murder, LawWeekly, January 18, 2014.

62

For a summary see the website/blog The Pamela Smart Murder Case, at http://wermenh.com/Pamela.html

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There were no preliminary orders, discussion, or precautionary instructions to the lawyers about controlling or overcoming the effects of media. No one involved in this experience knew or could reasonably predict how live television cameras would impact on the witnesses testimony and the jurors behavior. Or the pressures of national media reporting (live camera coverage that was abbreviated and theatrical to capture 6 and 10 PM news ratings). Unrecognized was the so- called “reporter effect” that over-sensationalized and mis-read even small and insignificant trial events as positive indicators of guilt. It included trial testimony and evidence that was prematurely judged by viewers — who pre-influenced everyone in America, including the un-sequestered jurors and the jury pool. Ignored also was the grandstanding effect of cameras on people— especially on Judge Gray (who was commonly known across the state to be lacking in fairness, courtesy, and impartial).63 Unrecognized was the effect of live television — that alters a historic courtroom atmosphere and intensifies everything beyond a normal trial. Live TV cameras inflates egos of ham-handed actors — which included almost everyone in the Smart case.64 It created a false drama and a malicious television side-story based on crying or not crying. The admitted trigger man, Billy Flynn cried copiously for the cameras. Pamela did not. Each reaction was extrapolated on national television, other interviews were done, and summary comments were deducted. Commentators weighed and “explained” (on the news at noon, 6 and 10 PM is pretty standard across the country, and the stations like to have something new for each slot) — that hypothecated that Pamela’s lack of tears meant she was an “Ice Princess” — and therefore a cold killer. That was the story title and the over-used commentator sound byte. It reduced Pamela’s personal emotional coping mechanisms to a cheap and lurid summary and a media side story. And it sold newspapers and pushed Channel 9 ratings over the top. Even if it wasn’t true.65 Truth was never the point — the point of live gavel-to-gavel coverage — was selling broadcast ratings and newspaper copies. That’s the trial error of this judge — Arguably the perception of guilt — the media hype to increase ratings — convicted Pamela Smart— not an independent and disinterested panel of jurors. The court has no way of knowing whether or not this media taint was fatal to fair process, but common sense and social experience in subsequent cases involving media hype suggests exactly that. The OJ criminal trial was the second reality television show trial — and we all know how that turned out. And by common reputation, Judge Ito was a far more neutral and competent and conscientious judge than Judge Gray could ever dream to be. Gray was clueless, and I know that from when he approached me in the hallway after one of my hearings at Rockingham Kingdom. Smart jurors were not sequestered and not being sequestered was very important to them. They said so at jury selection. So they saw newspapers and television headlines — and even talked about the case and their juror participation, while drinking at a bar during the trial. Prospective jurors, when they discovered they would not be sequestered, wanted to be on the jury, and freely discussed with each other Pamela’s guilt from their take on the media reports — while waiting together for jury selection. One juror secretly recorded everything, including her summaries of the trial and deliberation. After trial, she confided to her neighbors that she was short of money (she said it had been a tough season) and she planned ahead to offer her tapes for sale for $25,000. Did that impact her vote? Was it worth more or less to her if Pamela was convicted? No juror misconduct was ever found. And Yes, she offered them for sale to Pamela’s lawyer, J. Albert Johnson, for the sum of $25,0000 after the trial. One material witness sold her story for $100,000, while juror Alex Beckett reportedly sold his story to the Boston Globe the day after the verdict — $15,000 for his report of jury deliberations. Judge Gray seemed to acknowledge his media mistake in hindsight when he subsequently banned television and newspaper cameras from the courtroom in Smart appeal hearings.66 Although he never found a problem with the profiteering from jurors and witness that came after the verdict. 63

Judge Douglas Gray was already the subject of a state-wide magazine editorial, with reader comments and follow-ups about his out-of-control style of justice that trampled citizen rights. That editorial is re-printed at Appendix F.

64

When I first moved to New Mexico, I started a television production company to film my reality cooking show, Taos Cooks! It was great fun and even strangers would salivate at a chance to appear or work on television — people love the idea of being broadcast on television for any reason.

65

Pamela’s mother, Linda Wojas described in her book, A Mother’s Cry for Justice, how she admonished over and over during trial — Don’t cry. Never let them see you cry.

I’ve always said the same thing in court — Illegitimi non carborundum. roughly translated from Latin means Don’t let the bastards get you down.

66 Id.

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In all, $135,000 was paid to a prosecution witness and two jurors the week after the Smart verdict. That doesn’t count any movie scripts or book deals. It was all brought to Judge Gray’s attention in pleadings, and he had no problem with any of it. But this was also a man (in my own experiences) who was an Insider Ol’boy, who could never acknowledge error for anything. From the early 1980s, when he would name his law student (a JP) to preside over District Court trials when he had a conflict of interest, he demonstrated he knew how to game the judicial system. Judge Coffey wrote that JP trial experience on her resume that’s in a dusty file in the basement of the New Hampshire State Archives in Concord. The heightened sensationalism of being on national television every day as news-entertainment67 clearly had an impact everyone involved in the trial — and many of those impacts were self-serving and opportunistic. Whether from inattention or ignorance, this already notoriously uncontrolled trial judge failed to sequester the jury and gave no corrective jury instructions, or other fair trial protections, as jurors daily were thrust in the glare of national coverage on every major network and went home every night. Gray also said he went to the juror’s room to calm those that were crying!

Okay, so we have an old white guy who likes attention, who knows how to play the insider game, sitting as the presiding trial judge in a sensational trial in the national spotlight. Does all that really translate into — the Defendant didn’t get a fair trial? It’s not really about whether you or I would like this judge to sit on our cases (trust me, I’ve been there, and you probably wouldn’t want him either). But that’s not the standard. We said before, trials aren’t supposed to be a popularity contest. So what really does this have to do with getting a fair trial in a case where you end up in prison for life without possibility of parole (LWPP)?

LIVE CAMERAS AND MEDIA REPORTING AFFECT A DEFENDANT’S RIGHTS TO A FAIR TRIAL

CHAPTER

It changes the quality and reliability of the trial process.68 This affects a defendant’s rights.

6

It raises at least two major conflicting issues: In criminal matters, it is argued there is a greater public ‘right to know’ (greater than in domestic or family law matters, which are considered more personal and therefore private.) But cameras do alter how people normally act. Most people care greatly what people think of them. Children have killed themselves over a low “like” rating on Facebook.69 Potentially, the average person’s desire to be approved of — by what reporters say — is the thinking of the rest of the country. It is an element of destabilizing a trial that is more important than the trial itself. The fact is reporting is actually national entertainment — selling products and ratings — Courts and individual judges are clueless about the psychological impact on people and jurors in the courtroom from this enhanced marketing perspective.

A PSEUDO-EVENT The Smart trial, more than any other trial in American including the O.J. trial, became a distortion of itself because of media. American intellectual Daniel Borstein wrote about this — calling this type of transubstantiation — a pseudo-event. He was referring to the tremendous impact stemming from the 1960s American phenomenon of advertising — where events may become so manipulated after the fact that the real event is nominal — it is the simulation or reproduction that becomes the real event in the American consciousness. Woodstock, for example, a rainy muddy weekend in New York, has become an American icon. The Smart Trial — because of the no-holds-barred media — has a similar halo.

67

Kent Babb, How the O.J. Simpson murder trial 20 years ago changed the media landscape, Washington Post, June 9, 2014.

68

In the O.J. Simpson case, defense lawyers early on hired media and public relations consultants, spin-control doctors, and they were ready and prepared to use national media coverage to the Defendant’s advantage. This was years later, and this “Dream Team” learned from the Smart trial how to play and even incite the public interest to help acquit their client. They developed a racist defense to fan the flames of a national race tension. Very calculated, planned, developed and practiced as a defense tool.

69

U-tube, “like” My Story: struggling, bullying, suicide, self harm, Amanda Todd, October 13, 2012.

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The difference between the two is a constitutional matter of due process. One event was a social entertainment — the other a trial affecting the loss of freedom for the rest of a young life. A huge difference — in potential harm — the next time some judge wants to cave into the demand to create a national drama — to remember the context and resist the impulse out of a sense of constitutional fairness and duty. Otherwise, the case is tried in the national consciousness. This psychological impact comes from two directions — to make a sensational news story that will sell, and to create drama to make it more sale-able — even if it means picking out one small area and blowing it up into a sensational “incident”, even if it is not true, or is grossly disproportionate. Picking which elements are important to innocence or guilty determinations — is a jury function — not a newscaster function. The roles get confused and reversed in media circus trial cases. The second psychological impact comes from the fusion of news, movies, television and entertainment into one “sound byte” “theme” or “outcome” (all long before trial) at the reporting stage. Due process be damned — what makes a good story and entertains? On his old program Firing Line, William Buckley interviewed Malcolm Muggeridge, the contrarian British satirist who commented about the drive to deliver one entertaining public message in news, television, movies and music: Television is the greatest distortion of reality known to man…in a movie where there is a murder and there are three suspects, a heroin addict, a mob figure or a Catholic priest, at the end of the hour you will find that the Catholic priest is the perpetrator…. These media generators “have become an almost singular voice….” to gravitate to the sensational — regardless of its veracity. We saw that in spades in this first televised trial. Is it any wonder that the inequities far outweighed the boring due process? I know from trying (at the end of my legal career) to get national print news (mostly editors at the Washington Post and the Boston Globe) to stop focusing on the sensationally twisted salacious details of my divorce case (their twist, not mine), and instead to focus on news about the prevalent patterns of illegal judicial favoritism amongst the ol’boys. The latter was a continuing real news story — the secret court liaisons — the tricky patterns involved — the systematic impoverishment of wives of judges by other judges. The perversions of case handling. They wouldn’t print that — they wanted the one singular sensational other story. Maybe it was too complicated, too thought-driven. It required concentration (like this book), and it wasn’t just titillating sound bytes about sexy underwear. Judge abuse apparently isn’t titillating enough to sell newspapers. By way of comparison however — once Judge Constance Sweeney ordered discovery in the Boston pedophilia case — that news angle didn’t go away. Publishers still sold a ton of newsprint for a very long time afterward. For over a decade, the Catholic Church cover-up has been an enduring source of news. I suspect it’s the same thing for judge abuse — media coverage can be applied to the stinkin’ corruption in courts indefinitely. But the press could not see past the lurid personalized smears of the individuals involved in the divorce; they want to avoid the gender discrimination that lurks below the surface of these cases. It is a form of legal gender discrimination to turn these issues into sensational ridicule of female defendants. That’s why media broadcast from the courtroom skews and perverts a fair trial process. Most reporters miss entirely and persistently that these judge abuses apply in other kinds of cases. If you study divorce cases, you will see what’s happening in every other kind of court case. Fair trial process a long-view, and nightly news wants quick and quirky. In and out in 30 seconds. Something to titillate viewers and keep advertisers happy. Print reporters sometimes covered these stories,70 but as the state impeachment proceedings progressed in New Hampshire, they pulled back. By then the Supreme Court judges had hired their own public relations expert (a reporter from National Public Radio married to a state attorney general.) The stories got choked off. One print reporter told me that top management at the Union Leader was systematically quashing bad news about judges. She told me in fear that my leaked

70

I thought that Katherine Webster from the Associated Press would have been nominated for a Pulitzer Prize for her perceptive coverage leading up to the state impeachment trials; she learned a lot of intricate law quickly; Nancy Meersman, Union Leader law reporter was another astute reporter, but her stories were regularly squashed by senior editors and management. Nancy West has continued the tradition of these independent investigators with her own non-profit investigation and news service.

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information, once verified and written up as a new story, was squelched by top senior management. A legal reporter told me to send her information at work only in a brown unmarked envelope sealed inside another unmarked sealed envelope — without my name showing. She was genuinely afraid of being blackballed by her management. But we already had an evolved relationship of trading tips, which from experience we knew were reliable and (eventually) verifiable. With the permission of Alex Jones, Director at the Harvard Kennedy School of Public Policy, Shorenstein Center, I audited several master journalism/reporting classes about distortion in media reporting. For one class he invited the two top senior editors of the Washington Post to lecture journalism grad students. After class, I approached them together about being unable to get papers to publish newsworthy criticism of judges. They were evasive and unsympathetic as they exchanging knowing glances with each other. I finally understood that these two senior editors of the number one newspaper in the world known for the whistleblower Watergate scandal reporting71 — were now the squash-ors.72 There was one pep-rally message delivered to the Harvard Master Journalism Class, but there was a different practice when it came Washington Post newspaper reporting on unethical judging. It was not a neutral act to throw open the doors of trial to live television coverage in the Smart case. And it was an unfair trial process to thrust on everyone — especially the one defendant on trial who had no way to prepare or countermand the fundamental procedural haram. The general consensus is that Smart’s trial was a carnival atmosphere, with media and satellite trucks filling the parking lot, hallways and courtroom. Judge Gray at the end threatened to sequester the jurors if they did not agree quickly on a verdict, before the long holiday weekend. He said to jurors — “I told them, ‘Bring your toothbrushes tomorrow night because we’re gong to have to lock you up because the press is out of control.73 They were already hostile to sequestration (as demonstrated in the jury selection process) and went from a widely split vote to unanimous in three hours.

CHAPTER

The 1990 murder spawned a half dozen movies, with two more released in 2014 — twenty-four years later. When I took a memoir writing class taught by best-selling author Joyce Maynard at her home in California, she urged me to use ‘literary license’ as she had in writing the story of the Smart murder for her book-movie, To Die For. Her movie is scarcely recognizable, more a brutal caricature than any fact. Yet it is marketed as “loosely based on the real life incident” — the Pamela Smart case. Literary license, sensationalism, fictionalizing — none of these tools have a place in an American jury trial, and each will violate the Constitutional rights of a defendant to a fair trial process, including the taint after trial. Judge Gray was angered when one Smart juror was reported in a bar discussing the case, and another juror, Karen Sicard recorded her impressions each night and tried to sell the recordings to attorneys after the trial ended. But Gray was angry with the other team — and vented his wrath on the defense attorneys who brought the juror misconduct to his attention.

6

Even before the trial started, the first movie version was released. WMUR TV manager reported the station got the highest ratings in its history from its Smart coverage. He also admitted to milking the coverage for ratings. All those sensationalized pre-judgments — the reduction of what really happened — crystallized in a fictionalized two-hour rendition written to sell commercially. Two decades later made a documentary questioning whether the media impact denied Smart a fair trial.74 How could the judge fail to anticipate the inevitable and undesirable aspects of slanted and biased publicity caused to the rights of the defendant to a fair trial? How could he so recklessly embark on a first-in-thenation process, without making and allowing time for advance preparations to alleviate what was inevitable? Judge Gray had a long, well-reported history of judicial abuse.75 When people see something on television, they think it is true.

71

In1972 Washington Post reporter Bob Woodward attended an arraignment hearing of a ‘third-rate burglary’ at the Watergate offices of the Democratic National Committee. He connected the dots to the involvement of the CIA, and eventually to the White House. The investigative reporting by Woodward and Bernstein resulted eventually in President Nixon’s resignation to avoid impeachment— so what’s happened to the Post since then?

72

In tort law, one is either an ‘-or, or else an ‘-ee, as in the squash-or (person doing the squashing) or the squash-ee (the person receiving the squash.)

73

Pamela Smart’s Mother Blasts Judge, Foster’s Daily Democrat, Dover, NH, August 21, 1998 at 6.

74 HBO, Captivated: The Trials of Pamela Smart, directed by Jeremiah Zagar (2014). 75

New Hampshire Premiere Magazine, Op Ed on Judge Gray, Appendix.

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Politicians and celebrities know about the publicity phenomenon. They hire publicist and crisis communications people to countermand the effects of widespread negative publicity. But Judge Gray had zero experience in controlling the biased effect of a national media spotlight. In this case, the prosecution used the plea bargains of teenage boys to convict the young wife, who did not know or participate in her husband’s murder. Yes, Pamela cheated on Gregg, as Gregg had previously cheated on Pamela. Married less than a year, his and hers, each cheated on the other. Pamela was sexually involved with one boy up until the time of the murder. The pretrial publicity focused repeatedly on a sexy shot of Pamela in underwear and focused on Pamela’s adultery, but not Gregg’s. This focus-shading stimulated media caricatures made one focus about her sexuality — but not his. It made mentally stunning, sensational news, but unfairly slanted public perception from pre-trial through to sentencing and beyond, for what has become an endless cycle of appeals, pardon, and sentence reduction requests. Pamela was sentenced as an accomplice after the fact — to life in prison without possibility of parole.76 The murderers meanwhile, received considerably lighter limited sentences. Comparatively, sentencing was so uneven as to be unfair, even without all the media influence on the trial and jury verdict. The general effect of television cameras in the courtroom reflects several other judicial temptations and flaws. First, the camera’s has a direct impact on people. Players not only dress and talk differently, they have a tendency to over-act, ham-it-up, and become more dramatic and longwinded. The become caricatures of themselves. Pamela too became a caricature, and her failure to display emotion worked against her. (Her mother advised Pamela to work to stay reserved and ‘never ever let them see you cry.’) Composed doesn’t sell nearly as well as Ice Princess, and a bailiff’s relative, sitting as an observer in a seat before the bar, held up an enormous newspaper headline with that same ‘Ice Princess’ banner headline as the jurors entered and were seated. Apparently the bailiff’s sister had an opinion.

POETIC LICENSE UNTIED TO FACT Without planned and thoughtful judicial control, the inflammatory impact of media coverage and spin outweighs the so-called public interest. In Smart, uncontrolled media presence led to a contagious and inflammatory atmosphere in and out of the courtroom. Hot stuff and flames spread hourly with nationally televised broadcasts that generated a informational need to have something new to report on-air. Live, continuous reporting torques even small facts into major distortions. An affair between two people (five years apart in age) becomes hotter and more of a conventional sensational. By reporting Pamela as ‘a teacher’, (suggestive of a teacher/predator storyline) under rules for sensationalism, the student becomes a guileless student/victim. By omitting his other lover from the picture, the media portrait enhances stereotypes for television and movie screen, and these reporters’ distortions and omissions themselves create more drama.77 That’s the point of media. Bigger drama, more viewers, more ratings, more sales. Heightened and fictionalized drama sells better than raw truth. For Pamela Smart, her conviction reflects a heightened court-room drama, not only in the intensity and style of witness testimony,78 but in the judge’s actions — which suggest the ‘tough guy’ demeanor that disallowed a number of defense motions, including recall of the two teen boys after jailhouse evidence emerged late in the trial. The self-confessed, wife-obsessed murderer and his gruesome accomplice got plea-deals for early release. All four have been released. But Pamela was sentenced to life without parole.79 Eat your heart out, Clint Eastwood.

§

79 76

Sentencing is a topic in the next chapter.

77

The screenplay, To Die For, by Author Joyce Maynard, was a movie very loosely based on the sensationalized murder of Gregg Smart, who was killed in his home by three teens, one of whom was his wife’s lover. Joyce said in one of her memoir teaching classes (I took in California) that she used poetic license to make To Die For a more commercially sellable movie.

78

Billy Flynn, the obsessed lover, on the stand appeared crying and pathetic, but his later and earlier demeanor in custody with friends, was a laughing tough guy, proud of his prowess and the manner of his act of murder (close-up shot to the head.) It’s not illegal for defendants to play-act, but the national television drama was certainly a greater incentive to create a sympathetic public image for reporters. Pamela, on the other hand, was hurt by the media’s perception that she seemed rigid and frozen, and because she did not stage or play a sympathetic drama for the courtroom cameras.

79

Disparate sentencing under a state sentencing law, provided that a convicted accomplice after-the-fact got mandatory life without parole, while the actual murderer(s) got relatively short sentences and have all been released.

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INTERVIEWS AND SPEECHES Some judges make television speeches during trial, grant interviews, and make comments about their own personal opinions during a case. Outside the courtroom this violates the cannons of judicial conduct, so, like Gray, they do it all inside the courtroom. Either way, the indicators are the judge has been swept into the media glare and is personally involved. That could be as simple as appearing ‘tough.’ A notch on the belt. If he give a press conference, it means he traded the judge role for media pundit. There is a general prohibition against judges commenting on pending cases,80 but it doesn’t stop them from mugging for the camera. This camera factor directly affects some judges, some of whom will milk a case for extra shots, memorable quotes, and the hope of personal and political opportunity. Most don’t have sufficient personal and professional skills to recognize, much less counteract the affects of cameras on the witnesses testifying in the courtroom, or understand how they play to a television camera. For example, arguments and objections become more flowery, more inflamed, and more maudlin or pompous as actor juices flow under heat of camera lights. The number of words spoken increases, as attorneys (and the judge) vie with witness for face-time on air. The live murder trials are now studied for how they create strong feelings in people nationwide, which has a celebrity impact on the trial process and outcome. Additionally, two decades of bad behavior by pseudo-television judges presiding over fake over-acted ‘trial’ cases, has established a ‘low-normal’ public standard for judges. Abysmally ill-mannered, trauma-drama judges vent their spleens in the name of justice, to provide entertainment. They have lowered the bar for real judge behavior.81 Because of TV judges, real judges are expected to provide entertainment and increasingly are recognizable celebrities.

ANOTHER JUDGE GRAY CASE EXAMPLE Gray’s comment about Clint Eastwood was typical of other disrespectful and catastrophic remarks this judge made over his career.82 Once, I moved for him to recuse from one of my conduct complaint/trials because of his insider connections and age (he was past the age of mandatory retirement and had been specially appointed by Brock — my ex’s law partner and bench-mate). Judge Gray declined, but memorably said —

CHAPTER

“I promise to provide the appearance of justice in this case”

For a ‘special court’ case loaded with cover-up, retaliation and inside bar players, his was an empty promise. An appearance of justice is another show. It also is the promise of a media production. Gray’s cases routinely provided a type of play-acting at justice, where he was a starring role.83 Even after retirement, his out-of-mothball assignments indicate he was aware that his special judge-assignments needed the ‘appearance of justice’ that he could be counted on to deliver.

6 80

It is a violation of the code of judicial conduct.

81

Judge Judy is a real-life judge, but just not on television. Her style of smart-alec commentary and superficial obnoxious judgments is apparently entertaining to many television viewers, but see California Court of Appeals Judge Rylaarsdam’s admonishment about not using Judge Judy as a role model.

82

Carried on the front page in NH Premiere Magazine, “Justice Denied”, September, 1994, is the editorial regarding Judge Douglas Gray. Readers comments are in the following monthly editions.

83

The phrase “appearance of justice” is a misnomer — a lifting of the words regarding the legal standard for disqualification — which is ‘the appearance of bias’, (meaning no actual bias must be proven, only the ‘appearance’ must be demonstrated.) This is one of the word-twists that judges so often make when justifying their actions extemporaneously. It sure has a legal sound, but actually is an abortion of the legal concept it mimes.

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EXAMPLE: THE MICROSOFT MEDIA HOUND JUDGE The presiding federal judge Thomas Penfield Jackson in the first Microsoft monopoly trial appeared for a live national interview with reporters, minutes after reading his ruling on the corporate break up of the computer giant. He talked about his ruling, his personal opinions about the defendants, and he tried to explain the ruling in greater detail for the public, than in the actual order. This judge worked to make himself the news.84 This press conference legal babble showed how personally involved the judge had become in the case. He aired a lack of detachment and a deep ingrained bias about Microsoft. This overblown sense of what his role was should have disqualified him from hearing the case. Both the act and the attitude conveyed made viewers wonder how he was still on the case? The case continued, and despite criticism, this judge continued — a frustrated politician, hungry for national limelight. Law professor Leonard Orland expressed dismay at how Judge Jackson casually handled the trial and outrage, especially after it was discovered the judge had given secret briefings for selected reporters during the trial.85 Some contrasting examples: By contrast, one Boston judge was removed from a federal appeals court case because she gave a corrective comment to the Boston Herald after she claimed an attorney mischaracterized her position.86 Another gave an interview about a new state law: “I would be likely to permit an abortion under the Act in circumstances where a white girl had been raped by a black man.” This Colorado judge appeared on Nightline in 1993, and the court of appeals reversed the convictions for abortion protestors (for obstructing clinics.) The trial judge had discussed his views and “that act created the appearance that the judge had become a participant — rather than a detached adjudicator.” The undisputed worst judge however was the judge in the Anna Nicole Smith burial case — who hammed it up for courtroom cameras while preparing his own audition tape for a TV series — ala Judge Judy. During trial he droned on and on about his personal life, his college days, his philosophy, his advice on law, and made bad jokes. See u-tube under Anna’s name for this example, as I don’t want to print his name and feed his super-sized ego even more.

DON’T STEAL MY SHOT It’s a cardinal sin for actors to step on another actor’s lines or get in the way of a good camera shot. On-air face shots are currency in actor-land. It was a standard knowledge and a dark joke among New Hampshire attorneys, not to obstruct a TV-news bench shot. For another sensational murder trial, the judge ordered bailiffs to remove exhibits so television cameras could have an unobstructed shot of him sitting on the bench. Over lunch, the defense counsel repositioned the easel so the jury could view the exhibit. He put the easel down between a camera location and the judge, obstructing the judge’s chance at news coverage. The angry judge made a notable fuss, ordered bailiffs to put the exhibit in a corner and threatened the attorney with contempt. Ah, the little egos, and 15 seconds of fame on nightly news. JNad was a media hound. He instructed county court clerks to hold back high profile and sensational cases (sex, divorce and notorious crimes) for assignment to and by him. He used his administrative authority to deprived the parties of a random and impartial judge. In my divorce, he denied me a knowledgeable marital master, someone familiar with state law and procedure. He also wanted to help Chuck scoop the loot, as they had secretly helped each other in the past with ‘glitches’ in another ‘special handling’ problem case — Bonser. JNad was witty, articulate, charismatic, and political with his friends and peers. He counted the Governor’s husband as one of his many ‘best friends.” He often used his wit to ridiculed defendants and non-insiders. He used his power to crush people who did not do as he said.87 He sometimes testified in the legislature and newspaper and made public 84

New York University School of Law legal ethics Professor Stephen Gillers, For Justice to be Blind, Must Judges Be Mute? Boston Globe.

85

http://www.argate.net/mailman/listinfo/nnflp, March 15, 2001.

86

Stephen Gillers, supra at n.55.

87

See one example in the Clerk of Court chapter of the attorney who filed a report about the court transcriptionist who avoided recording a judge’s courtroom rants in the official transcript. JNad retaliated by removing that attorney’s GAL re-certification, precluding her from receiving court appointments and most of her livelihood.

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statements and gratuitous comments about people and cases. His cases sometimes took on a life of their own, far beyond legal issues. He liked drama. Notably lacking in legal fundamentals at law, this judge ruled by the seat of his pants, relied heavily on his own subjective personal thinking, and routinely initiated unique solutions that, upon close scrutiny, lacked fundamental due process and fairness. As he mucked through cases misusing legal-sounding mis-language, he apportioned out parts (or almost all) of his judge-role to his pals as paid special appointments, thereby grossly increasing case and trial costs for the parties. This chief judge’s media-grabbing propensity meant he sometimes assigned himself cases based on the anticipated notoriety or ability to generate media. Not because of his experience or skill in law. These are just some of the hidden costs and losses from having a media hound judge.

INEPT JUDGING No one wants to believe a judge is inept in law, but it occurs more often that anyone would guess. For example, they may not be computer savvy or even computer literate. Without young and savvy law clerks or associates, they may know little about the explosion of legal information that has, for example, affected parental and spousal rights. They hire young attorneys to write their books, research and write their briefs, and even argue major parts of a trial — all under the guise of ‘patronage’ or ‘mentoring’. That’s how I started my relationship with Chuck — I rewrote a book he had previously hired someone else to write the first time through. It was badly outdated, and I got a new up-front contract from Thompson, re-did the book and doubled the size to about 2,800 pages. That’s classic. Law is never light, never simple. Word processors have quadrupled the size of appellate decisions (or more). Old law books from earlier centuries occupy collectively about a fifth of the shelf space of the books generated during the computer age. It’s a massive amount of words and over-information.

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Having walked down that road, I can tell you the so-called mentor ‘protection’ or ‘mentoring’ of young lawyers is not necessarily a two-way street as much as it is senior predatory behavior.

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An administrative chief judge spends less than 10% of his time hearing cases, claimed JNad. Most divorce and family law cases in America are assigned to marital masters and family court judges who do this specialty law of family rights and responsibilities between spouses — day in and day out. So a special appointment to a district court judge is a huge tip-off about special handling by someone who may not have an experiential background.88 That JNad was clueless about divorce law became obvious, but it is one of those things that was so far-fetched, I dismissed it as ridiculous.89 Over time, it was clear he did not know even basic statutory procedures, law, and mandatory elements established by the legislature. He didn’t know law and basically was a politician — a connector,90 who treated his court authority as personal power. Every special assignment case may a reflection of an unqualified judge’s seat-of-the-pants rulings that cover-over professional ignorance, crony favors and special appointments ‘to help him decide.’ I have come to think these special appointments are often for insider connections, not for true law expertise and experience. Because his understanding of divorce law was so thin,91 he often had to wing it. Much like Sleepy, who wanted to treat every case he mediated as an automobile accident settlement case. My ex taught trial advocacy class at the law school, but at the time, he had never 88

But remember Marital Master Stephanie Nute and the $5 child support? Some district court judges get promoted for what? For merit? Not for compassion.

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JNad said the marital masters in my district didn’t want the case because I appeared before them frequently, but that wasn’t so and there was later evidence that he never checked. The case sat in a desk drawer and wasn’t even stamped into the record for over a week. When he finally specially assigned it to himself, he wrote a note to the clerks to fax all pleadings in this case to his home. Everything was very irregular, and nothing was as it should be, confided a clerk later.

90

The best-selling author Malcolm Gladwell is the first person I am aware of who used this term.

91

At the time of my divorce, I was the premiere family law writer in the state, (co-authoring in name, but doing all the actual work of research and writing) — the re-issue of Family Law in New Hampshire, State Legal Practice Series. It was a two-volume encyclopedia of state and national handling of family law issues. The work has been printed by numerous publishing houses, including Lexis-Nexis.

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done a jury trial and had no trial-litigator experience. He went from the governor’s office to the lower bench, and shortly afterwards was appointed to the state Supreme Court. JNad’s daughter had a similar career path, and both Chuck and Tina were noted for being among the youngest judges ever appointed in the nation. Fast track for insiders, it’s called.

WATCH FOR THE FALSE PSEUDO-COMPLIMENTS FROM THIS KIND OF JUDGE A special assignment to a pseudo celebrity judge. Remember the early caveat: be wary of special handling — especially special assignments to judge with any developed appetite for publicity. But since you are being screwed over, it’s a real piece of work to trick a defendant into respecting them and their inept decisions along the way. Not one of the ex-wives thought highly of their presiding judges after trial — and once they understood how they were tricked, they recognized that their disappointment or disgust had been well-earned.

REPORTERS AND RADIO HOSTS IN THE COURTROOM On the other hand, several examples already have demonstrated the practicality of having not only court-watchers, but reporters present in the courtroom if you feel the judge in your case is out-of-control or insider biased. The presence of Nancy Meersman and Katherine Webster almost always made a difference in the judge’s level of civility. JNad would expend extra effort to appear “fair,” although he once got angry when a bailiff put a display easel in the line of sight of the TV camera crew. The easel blocked his face. Judge Coffey would bar reporters or hide the hearing. But she wasn’t as self-assured or photogenic as JNad was.

EXAMPLE: THE PAT FROMAL CASE Linda Kennedy calls going in alone without a note-taking watcher going in without cover. Her experience observing two-day federal case in Virginia was she sat in the gallery taking notes in a reporter notepad. The judge became not only distracted but interrupted the witness testimony to ask Linda what she was writing. The federal judge asked questions about Linda’s radio show, then retired alone to chambers. While the judge was out, a clerk approached Linda and made small talk (the same clerk who would not give her name or the court reporters name before trial). After five minutes, the judge returned and was sweet as pie and overruled every objection of Pat’s opponent. She watched Kennedy write each answer. Day Two was a different story. It began with the Judge making a record of her concerns that Kennedy was taking notes, and that Kennedy might be helping Pat “behind the scenes.” It appeared the judge was setting Kennedy up for a bar complaint.92 Kennedy said she was taking notes for the purpose of a radio show. When Kennedy returned to her office, staff reported an anonymous call from “Judy” at an unnamed law firm in Norfolk, who when asked to leave her phone number, put the call on hold and never came back. The boys and girls of the bar were keeping book on Kennedy — a woman I love for her courage, and who traded a weekend of experiences with me. She was the first lawyer I met that let me know I was not alone on this planet as a whistle blowing attorney. I used to think that mature women who went to law school later in their adult lives, were more destine to be independent thinkers — and then whistleblowers. But Edward Snowdon changed my theory. Actually, there are dozens attorneys and judges across the country, who have been disbarred after whistle blowing about crony corruption. Most are male. Since there are fewer women attorneys, it may be a fairly even ratio.

NOTES ON NEW HAMPSHIRE RULE CHANGES ABOUT TELEVISION Two years after the Smart trial fiasco and a year after the legislative impeachment proceedings of the state chief judge, the New Hampshire Supreme Court announced a rule change: hereinafter, all courtrooms were to be open for reporters and cameras because, the argument went, courtrooms are public forums. Just as one rule fits all one way — this preemption of reason swung the pendulum from one extreme to the other. 92

The 4th Circuit ruled it was “unethical” for an attorney to help pro se litigants.

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At the time, WMUR-TV and the Boston Globe newspaper wanted photograph access to the Zantrop murder case — the two Dartmouth professors killed in their home by teens. Judge Peter Smith closed the trial and sentencing hearings to cameras. Media sued, arguing there were no witnesses or jurors to be swayed by cameras, which is a good and valid distinction. In an abundance of cooperation, the judges,93 threw open the floodgates of all courtrooms “to photograph, record and broadcast” with barely nominal protections.94 They said cameras “improve public perception of [judges].95 While I believe that is flawed logic based on an erroneous presumption, there was no mention about Constitutional impact on defendant rights. Allegedly, this made judges look better. So, after decades of secrecy, New Hampshire judges just rolled over to avoid more media criticism. Without an ounce of common sense on either of the blanket decisions. So does that mean people can use their I-phones to video their hearings and trials and post it to YouTube?

FEDERAL COURT CAMERA TREATMENT “Federal court has never allowed cameras.”96 At almost the exact same time, the Department of Justice was taking extra precautions to make sure film footage and closed-circuit transmission was not made public. Federal regulations by law prohibited any recordings of the execution of Timothy McVeigh. Similarly, President Clinton’s testimony about Monica Lewinski was transmitted from the White House to the federal courthouse a mile away, and it too was encrypted to insure no public dissemination, reported D. Ian Hopper for the Associated Press. So while the feds are encrypting for privacy, New Hampshire judges finagle to watch themselves on the nightly news and pick the Hollywood actors who are to play them in films. Federal judges have warned of “significant dangers” to a fair trial process, not to mention to witnesses, including the case of 911 terrorism suspect Zacarias Moussaout, where Judge Leonie Brinkeman, upheld the no camera rule.97 Any social benefits from photographing and broadcasting these proceedings are heavily outweighed by the significant dangers worldwide broadcasting of this trial would pose to the orderly and secure administration of justice, And finally the U.S. Supreme Court weighs in —

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Please don’t introduce in the dynamics … the insidious temptation to think that one of my colleagues is trying to get a sound byte. Anthony Kennedy, U.S. Supreme Court Justice, testifying before Congress against a bill that would require televised court hearings.98

ONE LAST WORD ABOUT CAMERAS IN DIVORCE COURT As was typical in my divorce case, there were inconsistent orders on camera treatment based on judicial expediency of the day. At the time the judge was dealing with Chuck’s attempted burglary of my home99 the transcript reflects that Judge Coffey ruled —

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“it is my standard practice not to allow cameras in the courtroom in marital proceedings.” 93

By this time, the court employed its own NPR press secretary/crisis control consultant.

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The protection calls for a pre-camera hearing, but the judge’s decision must be based on “fact” and “not speculation over what effect cameras might have on proceedings.” Editorial, Foster’s, December 15, 2002, “Television in the Courtroom Helps or Harms.” December 15, 2002. Author’s Note: Sounds like an impossible standard where the judge has to determine future facts to be true before they happen. Hum.

95

David Tirrell-Wysocki, AP writer, Foster/Citizen Online, December 13, 2002.

96

Pamela Smart’s Mother Blasts Judge, Foster’s Daily Democrat, Dover, NH, August 21, 1998 at 6.

97

Sumana Chatterjee, for Knight Rider, In Court: Judge Rejects Bid to Televise Trial, Boston Globe, January 19, 2002.

98

Quote from Time “Verbatim” (n/d). I vote with Professor Kennedy — not just because he was my Constitutional Law Professor at McGeorge, but I think he’s right on this one.

99

Attorney Tarbell had scheduled me for discovery document review in his attic during the time Chuck attempted his burglary.

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Thus, she kept the Associated Press reporters and photographers out of the courtroom.100 But for final trial, she maneuvered the trial into the only courtroom with built-in recording equipment, and announced she was “testing the equipment” by videotaping my divorce trial — another first for New Hampshire. JNad had not only the abutting office, but a 15-year history (in at least four other documented cases) where after being removed from a case, he just couldn’t keep his fingers out of the pie. She made a very sweeping award of many tangible and intangible assets, like my author rights. But it is through the comparison of judicial treatment — the disparate handling of the same issue —that the analysis becomes clear. One side gets a nuclear bomb while the other side gets extra-ordinary leniency —both involving her diametrically opposite application of the same court rule. Look for this kind of disparity indicative of both arrogance and corruption, for example, what happened at trial to her so-called ‘standard practice’ for marital proceedings? Law is not sophistry. Constitutional mandates cannot be avoided by exalting form over substance, wrote my brother Greg in my appeal.101 Federal Rule 61 orders courts to disregard harmless error, and assess substantive rights errors. Overreaching, inconsistency are not harmless error, but sophistry.

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SHORT CUT #1: A RELAXED COURT One of the most convenient methods for covering up court abuse is to allow judges to claim discretion. They abuse this authority to do away with the ordinary rules of court. They don’t actually do away with the rule- just pretend it’s not there when one team wants to apply it. This enables a biased judge to administer the case with impunity in a biased and abusive manner that usually evades discipline or correction on appeal.

ABSENCE OF FORMAL RULES AND PROCEDURE Family court litigants suffer the most from the court-made rule that provides: a judge may set aside any rule for the convenience of the court or the interests of justice. Rules are limits on judge discretion.

The rationale for avoiding the rule or practice at law is family matters affects the lives of people in special standing to each other especially children, and therefore tolerates more flexibility than due process provides. The legislature writes laws, but judge say it is hard to cover all contingencies. And it is. But in insider cases, this license gets wrongfully used to manipulate the outcome. Discretion becomes a trump card for abuse by avoiding the build-in protection of regular rules and legislative procedures.

100 The AP responded by filing a lawsuit to intervene in my divorce. By then, there were already five other intervenors in my divorce — the four attorneys who usurped my interest; the co-respondent; and now the Associated Press. Along the way Chuck sued three of my investigators, the editor of a small newspaper, and the legal publisher of our law book, as well as stimulating/writing about a dozen and a half professional bar complaints. It was a pretty big party any day of the week. 101 Greg was quoting New Hampshire cases where the Supremes found the opposite holding from Coffey’s handling. “The common law era ended [and] one could not longer prevail in an action merely on a “procedural technicality.” “Judgment, and any necessary process for carrying it into effect, being directed to the ends of justice, cannot be obstructed by imaginary barriers of form.” See Stebbins v. Insurance Co., 59 N.H. 143 (1879); also Rosenberg, The Federal Civil Rules After Half a Century, 36 Me.L.R. 243 (1984) commenting on Federal Rule 61 which orders courts to disregard harmless error and assess substantive rights errors.

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This could be corrected or mitigated if the courts followed disciplinary protocols —but under the self-regulating courts — there is no deterrent for insiders who abuse the process to assist each other. If the attorney or judge is powerful, judicial bias gets ignored. No matter how rudely or unfairly a judge acts, under this grant of discretion, he doesn’t get reviewed, much less sanctioned or corrected. His victims have no place to go for justice. Rules are standards — guides and law set up by authority — prescribing or directing an act or forbearance.102 The federal rules of civil procedure have existed since 1938 — to insure uniformity in treatment, and they act as limitations on the power of judges. Not every state has enacted them as state law, and some of the confusion about rules comes from rules of civil procedure, and separate court rules judges make to govern themselves and attorneys (rules of ethics). Judges may not set aside substantive rules of procedure which act to provide fair administration, however the chances of correcting such an abuse on appeal is slim. So they do ignore rules. We will look at Arizona sentencing and post-conviction rules in later chapters, and where judges suffer from great confusion from procedural rules — and ethics rules — and so-called “local rules”, where states question standardized treatment of law and procedures and seek to impute their own local values and resist the pro-uniformity movement in law. “We must be mindful of unstated and untested assumptions lurking behind the powerful rhetoric of uniformity.”103 I’m for testing unproven assumptions, but the matter still exists the on the books, and the public is being held to a written standard that Insiders and judges are not held to. So this slippage in enforcing rules severely against some, while inconsistently ignoring the printed rules for local insider big boys — is just patently offensive, and abusive at a Constitutional level that never gets reviewed or corrected internally by judges on appeal. If you don’t know and understand court rules, you will not be able to even make a record for appeal. Judges manipulate rules in practically every case I have observed. It’s their internal bias and the fact that no one is correcting or sanctioning them. Sometimes, they just pretend the rules don’t even exist — such as the exchange of financial affidavits in my own case, or the Brady evasion of not-disclosing Chris Sorenson’s sheriff’s department personnel records — even after ordered by the appeals court to do so — in my brother’s case. This isn’t a family saga — my point is, it is happening routinely in almost every case I have seen and heard about for almost 20 years. The unfair administration of rules. So the judges extort their authority to avoid rules that are supposed to provide due process. The worst due-process abuses are in State ‘Fit Parent’ cases (but they turn up everywhere, in every kind of case). Tactics in these kinds of cases circumvent constitutional rights of parents in the name of child protection, but government abuses by both state workers and judges mean the area of law is a field of landmines waiting for defense attorneys and parents to step on. I’ll use one case for an example —

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1. The notice. Clerk of court called one day in advance and left a phone message (i.e. “notice”) of trial. (This is the same kind of advance notice I got when they took my law practice.)

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2. The ambush. The attorney (experienced in these trick cases) had already filed a motion for the judge to rule on whether or not the mother was being tried as “unfit”. There was no charge pending against mother. The court declined to rule — skipped over the Motion actually.104 Then at this phone-noticed trial, the state raised the issue, and mother was expected on the spot to “defend” herself as a “fit” parent. [Notice also the shifted burden of proof.] 3. The lie. The state had taken the child into custody a few weeks earlier, and told mother they would let the child settle into foster care for a few days before the child could contact mom — but then they took the child to an MD for an exam and told the doc that the mom was missing. Did the state worker lie impact the doctors opinion? 4. The slapp. The state filed for sanctions against the defense attorney for filing for a custody ruling between mother and father in the superior court.105

102 Blacks Law Dictionary, 5th Edition. 103 Thomas O. Main, Procedural Uniformity and the Exaggerated Role of Rules, U. of Nevada-Las Vegas, (2001) quoting Villanova L.R. Vol. 46, p.311 at 384. 104 A Stanley violation. Stanley v. Illinois — is a 1970s case that found courts have to hold due process hearings before denying parents their constitutional parental rights. 105 See nhdcyf.info. and see also http://wermenh.com/dcyf_tricks.html and also http://dcyf.home.attbi.com

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SHORT CUT #2: JUDICIAL DISCRETION106 What exactly is a judge’s discretion? Basically, that gives the judge almost free range to interpret the law in any way he chooses. Most importantly these decisions can be based on the fact he is having a bad day, he is angry at his wife, or there is some financial benefit to the decision in the form of quid pro quo a pay-off. Since the judge has little to no accountability, and the litigants have even less avenues for protesting judges discretion, where does that leave us and our children? My judge stated — When you step into my courtroom, you are no longer in the United States of America. You are in a dictatorship and I am the dictator. You can imagine the surprise I felt when I heard such words come out of the mouth of a judge who was sworn to oath to uphold the laws of our land.107 What is discretion really? When an authority may act, in certain circumstances, according to their own judgment and conscience, uncontrolled by the judgment or conscience of others.108 The judicial abuse is the judges do not recognize the “certain circumstances” limitations, and set aside mandatory rules and law that are in place to protect parties from abusive situations. Whole cases simply skip the formal protocols, procedures, and protections of the statutory framework established by the legislature — my divorce was an almost entirely ad hoc special arrangement under a thin veil of court authority by several puppet-masters. I think it happens in many cases — but the victims don’t happen to be legal authors or legally trained and experienced in divorce law, so it goes unnoted and unanalyzed. Some cases just get overwhelmed by the personalities or circumstances. Those, in my opinion, require strict adherence to the formal rules and procedures, to maintain judicial control in a fair and Constitutional way — not an insider throwaway. If I were a divorce-court judge, these high profile cases would be to the letter of the law— to avoid the inferences and pressures judges otherwise experience to pander to the powerful. Instead, it’s often the opposite: they pander to the rich and powerful.

SHORT CUT #3: OFFERS-OF-PROOF An offer of proof is a formal oral statement of facts made by an attorney in court summarizing another party’s statement, if that other party were to testify in the courtroom. It is suppose to be a time-saver for the court. It assumes honesty in the attorney representation, who is not sworn under oath. Offers-of-proof allows judges to accept unverified attorney statements as true. It is a huge systematic problem to allow attorneys to state ‘facts’ without any evidence. When this happens, the judge simply ‘believes his favorite lawyer’ and rules on facts that are completely false.109 The end result is a sound-outcome based on a false set of facts, “but completely wrong with regard to the actual case.” It is frequently abused. Often the offers of proof are not verified and the speaker is not put under oath or cross-examined. It is an informal process, which invites the creation of a false record upon which the judge may make a compliant or favorable ruling. Once the ruling is in the record, unless proper objection has been timely made, the dye is cast. The case record is “true” for all subsequent purposes and rulings and appeals. Example: Clients often cannot understand how judges allow one side to avoid cross-examination with this method. Lynn, one of my clients wrote down seven attorney misrepresentations at one hearing — done through offers of proof. She was steaming out of her ears by the time the hearing was over. The lying attorney’s client, (who had asked for the emergency hearing) went to Florida on vacation instead of attending the hearing. His attorney testified for his client in court. To challenge this attorney’s statements, we had order and pay for the transcript, go to two additional evidentiary

106 The following is taken from an excellent online resource for family law and child custody problems, see http://www.protectingmychild.org/ 107 The quote is at http://www.protectingmychild.org/blog/category/court%20evaluators 108 Blacks Law Dictionary, 5th Edition. 109 Written comments by legal commentator, Virginia Attorney Jon Moseley, August 14, 2007.

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hearings, and prepare three additional motions, including motions to sanction the husband’s attorney for lying.110 Like any lie, it is costly and hard to prove. Often there is little hope of correcting the judge’s ruling. It is an insider’s game. It is a court joke that attorney offers of proof are referred to as offers to lie.

To control the abuse, one administrative judge ordered that no attorney could make an offer of proof unless the person he was quoting was sitting in the courtroom. Some courts have made it an administrative rule.111

SHORT CUT #4: SHIFTING THE BURDENS OF PROOF A burden of proof is just that — a heavy load for the one who is assigned by law to carry it. Which side is responsible for presenting the basic case elements is spelled out in common law, statutes or case law. You have to dig it out. For example, in a criminal case, the burden of proof is on the state, so the state prosecutor has to show the burden is met. In a civil case, it is usually the person initiating the case, but it can shift or double- up for a variety of reasons. Presenting enough evidence to prove every element necessary in an allegation can be a tremendous investment of time and money to prepare — if all the evidence and witnesses aren’t lined up in advance, and the burden of proof is not adequately met for trial — then the case will be dismissed. In civil cases, the standard of proof is preponderance of the evidence; in criminal cases it is beyond a reasonable doubt.

So when a judge’s ruling effectively switches the burden of proof from one party to the other, this is a serious sneaky trick which can TKO a party in the case. In practice, there are two sneaky tricks involved: an individual judge may quietly switch the burden during a hearing to the wrong party, or secondly, the court may act as an institutional body to make a new court rule which shifts the burden of proof for a whole series of cases — such as new rules of confidentiality in child protection cases. It just silently eliminates a constitutional right for a class of people who in real life often lack the resources to mount a constitutional appeal.112 In the meantime, their children are often in state custody.

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SHIFTED BURDENS OF PROOF AND JUNK SCIENCE

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Other examples include a combination of shifted burdens of proof and junk science expert opinions.113 The shifting acceptance of evidence because it was based on some paid-expert credential has resulted in tens of thousands or perhaps millions of erroneous criminal verdicts based on bad and unreliable evidence, presented by people claiming they were independent experts but who were not. The injustices done by flawed science (global warming, DNA, lead-bullet analysis, eye-witness credibility, product liability, chemical and prescription drug cases, water rights, patent rulings are all examples) — originated in time with court-room lie-detector results in the 1970s. These scientific expert mistakes have all involved a legal built-in bias by supposed expert professionals, who explain both flawed and bogus science for judges and juries. Courts have missed some elementary assumptions about ‘science’ that translates into a systemic flaw in the justice system, improperly skewing trial results in favor of those who can afford to create ‘science’ and employ vested-interest scientific experts at trial.

110 Lynn Rancloes, Coos County Superior Court, N.H. Docket. 111 The constitutionality of administrative rule making is discussed in Volume 2. 112 See Copp v. Heniker, 55 N.H. 179 (1875). 113 See §4.05 stacking the players — testimony of experts and forensic corroboration.

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One reason is because scientists basically operate backwards from how law-types operate and think. Scientists form a conclusion (they call it a ‘thesis’ or ‘theory’) and then they deflect criticism and test for evidence that their conclusion (thesis) is not true. This dichotomy of ‘scientific experts’ who provide forensic corroboration at trial (for a hefty expert fee) represents a shifted burden of proof process that jurors and most lawyers do not understand. It does affect defendant fundamental rights. It’s not just a matter of credentials or the science/theory/testing involved — but of a contrary thought processes in each of the expert occupations. They just think oppositely — formulate theories and test and arrive at outcomes (i.e. ‘the truth’) so differently that scientific theory impacts on fair process at trial — which is supposed to assume innocence first, then prove the negative facts. This is complicated. How does one go about proving a negative fact?114 Unfortunately, that’s the challenge for innocent criminal defendants and injured individuals every day in court. While at the same time, that old Christopher Columbus Langdell model of teaching law, supports (erroneously) that judges are inclined to do the same thing — they shift the burdens of proof. It makes a double-shifted burden for defendants. When viewed in light of the relative resource-position of the parties (major corporations or state or federal prosecutor against the little individual people in court) then this hidden-thinking-process factor often results in hidden burden-shifting. That becomes an insurmountable latent bias for certain generic categories of trial cases. The latent factors are — (a) Corporate or state unlimited resources for trial defense or prosecution (b) The reverse scientific-thinking model that shifts the burden to the little guy An alternative kind of thinking-processing-style, familiar to most judges, but not ordinary people. Similar in a way to deciding the case outcome, and then working the ‘facts’ and ‘reasoning’ backwards to make the verdict or ruling come out in the way that is desired by the court. This is nothing about the Rule of Law. (c) The latent process of manipulation for Insider interests in court The U.S. Supreme Court in 2006 took a case on climate change, based on conflicting scientific experts. (Bush and auto manufacturers versus 12 states and environmentalists about a wide range of questions about carbon dioxide and air quality, within the context of global warming.115 It is an interesting read about how judges with no science, arrived at a decision on standing, through citing very generalized ‘science’ fact(s). Although this case was commonly perceived to be a test of the truth or falsity of global warming theories, the Justices actually ducked that direct issue, and merely determined that the EPA must regulate unless they “articulate a reasonable scientific basis.” Judges often are not wired to ‘get’ math or science. So they rule with sophistry.

SHORT CUT #5: PRESUMPTIONS Sometimes injustice is done by way of a presumption or a rebuttable presumption. It is an belief based on something considered to be extremely reasonably likely (and therefore absent contrary evidence, leads to become the basis of other known facts or is true. Or it is the opposite of itself — behavior that is inconsiderate, disrespectful or overconfident. 116 A presumption at law may be statutory or “judicial”, and once a basic fact is demonstrated — by a single fact or a group of facts — it gives rise to the existence of a presumed fact. The presumed fact stands unless rebutted. This fact-finding is not to be confused with evidentiary issues.117 — was that paraphrase from Blacks Dictionary circular enough? This can become a circular swirl difficult for even a trained person to catch. 114 One of my engineer divorce clients, Walt Foster, wanted me to prove about three-dozen lies by the other side. I told him to pick five and I would charge $2,500 each lie to prove at trial. It’s that hard and time-consuming to find and organize evidence and arguments necessary to prove negatives. Each lie can become like a mini-trial within in a trial. 115 Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). 116 Encarta World English On-line Dictionary (2014). 117 Black’s Law Dictionary, 5th edition.

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On top of that are “inferences”, which do not have the mandatory nature of a “presumption” or a “rebuttable presumption.” “There are no fixed rules for what evidence will give rise to an inference sufficient to establish a presumption of discrimination.” 118

REBUTTABLE PRESUMPTIONS N.H. State Representative Paul Mirski and Constitutional lawyer Paula Werme each wrote me separately about the state health and human services agency’s ongoing efforts in child abuse or neglect cases — to create a “rebuttable presumption” (shifting the burden of proof to parents) and about State opposition to a House bill raising the standard of proof in state child-taking cases. This type of case, where the state acts beyond and without constitutional parameters in the interests of child safety, assumes an extra-ordinary authority to take someone’s child without notice. It often results in keeping children in foster care or state custody indefinitely or forever, because ordinary parents can’t readily understand or meet the court imposed, and shifted burdens of proof. I believe this is unfair because the abuse or neglect charges may be based on an anonymous phone report or a vindictive non-custodial parent, or an observation by a third party required to report without investigating (teachers, doctors, etc.). The child is taken by state workers quickly without notice, and the process is slanted against parents and their fundamental rights from the onset. Child safety is important, but the process involved allows, and in some cases, encourages State worker abuse, then routinely rubber-stamped by judges. So it is always uphill for parents.

NH Rules of Evidence — 301. Presumptions A presumption imposed on the party to whom it is directed, the burden of going forward with evidence to meet or rebut — persuading the trier by a preponderance of the evidence that the presumed fact does not exist. The presumption requires the trier to accept as true the existence of a presumed fact unless sufficient evidence has been offered that the presumed fact does not exist. (The Thayer rule)

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A PARENT IS CHARGED WITH DISPROVING A NULLITY OR NON-EVENT

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The same erroneous thinking occurs in other kinds of cases. The potential and incidence of state abuse of authority or actual mistake is enormous. I’ve worked in this area of family law as a lawyer and mediator, and am appalled at how parents and family members get unfairly rolled —routinely (whether or not they are unfit or abusive.) Case by case, family strength has been eroded out of the Constitution, because individuals cannot access it in state cases where there is an unfair presumption against parents. The burden of proof hoisted onto parents is sometimes insurmountable and always stacked in favor of state workers and attorneys. So this idea of enacting as law a “rebuttable presumption” that “infers that individuals are guilty unless they’re proven innocent”119 seems to be more than the usual state general unfairness. It makes a nearly impossible standard for parents to recover their own children as a matter of parental rights. It is so frequently misused that it deserves it’s own book.120

118 Bennett Gershman, Prosecutorial Misconduct, 2nd Ed., (2008) at §9.8 for a discussion of jury selection discrimination. Note the absence of judicial “very broad discretionary” powers — present in other aspects of jury selection, but noticeably missing from the area of intervention (when apparent discrimination occurs by one-side’s use of pre-emptory challenges) in a prima facie discrimination decision. See page 368. Why are judge powers so “very broad” elsewhere and noticeably absent here? 119 N.H. Representative Paul Mirski, March 14, 2001, letter on HB 733 (2001 Session). 120 The most comprehensive informational website I am aware of is maintained by a non-attorney techie-expert in N.H. See http://dcyf.home.attbi.com/

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State workers showed up in force at judiciary committee hearings to lobby against raising the state standard of proof to a criminal one — to “clear and convincing” in order for the State to retain a child taken from parents.121 Because this is a fundamental parental right to raise their own children, and because the state workers already operate beyond the protections of Amendments IV, V, VI, and VII, a higher standard seems — reasonable. What I found in court is that the state agency workers barely, if at all, recognize parental rights, and they overwhelm and take advantage of parents. Especially those without knowledgeable legal representation are routinely intimidated to forego constitutional rights as a matter of rote and coercion. They use one court process — in my mediation state of mind, it is sometimes inappropriate, overly harsh, and disrespectful to parents. There are often other ways to accomplish the social goal of correcting parental flaws, children’s behaviors, and poor social conditions — other than threatening the parents and breaking up by a uniform state-mold process that puts state attorneys, state experts, resources and judges in opposition to the parents. Parents are always outgunned and outspent, and often terrorized and abused by the state and state-paid lawyers and judges. So the legislative bill was about passing a law that a parent is considered guilty by presumption, until he or she proves evidence, that they are innocent by clear and convincing evidence. If you are American and understand what this means in actual practice, it will leave you breathless. I find it shocking and arrogant. And as a former family law professional, I am highly sensitive to child abuse and a proper state role in preventing and correcting it. It’s not necessary to ambush parents or shift their burdens in court. The law doesn’t have to be sneaky to protect children. Innocent until proven guilty is an example of a burden of proof — that a prosecutor must demonstrate with reliable, admissible evidence, each one of the necessary enumerated factors required by law before a party can be found guilty. A finding is a written fact determined by a judge in a particular case, which becomes the law of the case — become true for all legal purposes thereafter. Even if the fact is patently false. (Be sure you are clear with the concept of Findings of Fact and Rulings of Law as Building Blocks. [See these basics presented in Chapter One].) We’re going to come back to this again and again, because it has become a perversion of a principle that is acceptable in some circumstances — but not all. Remember this legal concept — even if a fact is patently false, the judge can say it is true, and it becomes law.

Burdens of proof shift back and forth within a case according to the claims and defenses, which need to be proved. Who bears responsibility can be tricky all by itself, but therein is the opportunity for sneaky tricks and mistakes. Sometimes knowing who has the burden is a matter of training and education; other times it comes from experience and reasoning. It is imperative for judges to know which party bears the burden of proof for each separate issue raised. That burden party has the tremendous cost, expense and work of researching, preparing and presenting those critical elements at hearing or trial. Judges may take advantage of inexperience or pro se or other disfavored parties by shifting the burden of proof on a case by case basis, or creating some bogus issue that will slow down that side and require them to defend a new collateral side-issue that exhausts legal resources quickly and unnecessarily.122 It’s an offensive tactic — designed to throw off an aggressive underdog who somehow gained the legal upper hand in a case. If that particular case or those lines of cases in general are not suppose to have a level playing field (sometimes this may be a matter of public policy, such as parent’s rights in abuse and neglect case. Or it may be an insider case where the case was predetermined to favor the state or a powerful insider), then it may be necessary for the judge to assist the outcome by improperly shifting the rules or presumptions midway through the game.

121 http://dcyf.home.attbi.com/ 122 See § on Trash as evidence — an example of a collateral issue with a shifting burden of proof, acting as a kind of surrogate slapp suit — the collateral issue becomes a case within a case.

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Tell Tale Signs One observable clue of a judge acting unfairly who makes bad rulings based on insider bias: shortly after making a biased ruling, the judge may be overly polite, friendly, and solicitous to the losing party — to show what a good guy he really is. The judge knows he is just putting finishing nails into your case coffin, and especially if you are a nice person, he may become extremely solicitous soon afterwards. It is a pathetic effort to re-balance the scales of justice. This solicitous attitude will not last. And will surface again like a sorry dog that soiled your best carpet when you weren’t looking. When a judge demonstrates mood swings or excessive courtesy and feigned concern for a defendant following a display of misconduct, temper or retaliation, review the record for one or more questionable evidentiary rulings and be sure the record reflects your objection with enough information preserve the rulings and background for a conduct complaint and or appeal. If it doesn’t, file an objection clearly and quickly. There is a natural tendency for a misbehaving judge to recover from his pique and get worried about making a show of fairness. To give a perception of fairness, they temporarily re-balance the scales of justice after a large tilt, by over compensation on issues of little or no importance to the bottom line.

Many people, caught in these types of circumstances, begin to realize for the first time in their lives that courts do not function under the Constitution as they were raised to expect. It shakes your trust in everything you believe in.

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Their shock and disbelief is also the eventual loss of trust in a revered institution. That is no small matter. There is an internal psychological shake-up because trust in the courts and judges is fundamentally ingrained in most of us from childhood. Most people will engage in some form of denial. Or self-blame. Those are natural reactions — wrong, but it’s a way of coping with a huge life betrayal. Like trust of in church and priest — this is not supposed to happen.123 These experiences can shake one’s basic beliefs to the core. The residual fallout (after the case is over) can last decades for the individual involved — but it acts cataclysmically to shift the law. [Note — there are case correlations to the Civil Rights Movement because bad judging is basically an issue of American equality of all people — and therefore a discrimination against everyone not in the Ol’Boy class system. It isn’t only race-targeted.]

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As a litigant, I found it hard to get through this period. Faced with institutional unfairness — permanent losses, accusations of criminal behavior, the taking of the tangible rewards I earned from years of hard work during my marriage — and my other loss — my loss of faith in the legal system. Individuals are increasingly mounting personal fights in their own court cases, with or without attorneys. The bar is acutely aware of this and is systematically working to remove and ostracize all outside help — by eliminating clinics, gadflies, helpful lawyers who want to help (sometimes unpaid), and even friends and neighbors. All these are intimidated not to help others in court who are not represented by insiders. Some litigants have networked locally and nationally — especially in family law cases. Others give up, walk away, and refuse to fight. Each suffers great personal cost — financial and psychic injury that lasts indefinitely — and, as I can attest, will impact a person’s life for the remainder of their lives. For the lawyers and judges involved, this insider system represents the loss of personal integrity — sacrificed for the greater good of the bar association? That sounds shallow. They will probably talk about “protecting the public interest” — but research indicates that is an empty phrase designed to justify serving institutional interests over the public interest.

SHORT CUT #6: SECRECY AS A WEAPON AGAINST OUTSIDERS The two earlier examples of state cases involving child abuse and neglect are representational. It occurred where the parents refused to abandon their child to the state. In each case, the parents hired private (non-ol’boy) attorneys who refused to accept judge patronage practices. These cases typically are ones permanently and irrevocably sealed from public view (or any analysis of state practices) under court rules about case confidentiality. Whose privacy are they protecting? State workers? Self-serving secrecy is regularly employed as a weapon against parents who resist. 123 I wish I had $1 for every time a shocked litigant tells me a story and cries out, This is America. They can’t do that.

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Even on appeal, the secrecy provisions of child abuse statutes conflict with state law and fundamental constitutional rights, but court handling not only side-steps the parental-rights issue, but at the next court rules committee meeting, the state had a whole new set proposed changes to clarify by fiat the closing of any ‘loophole’ that made the secrecy practices unconstitutional. This abjure is legislation-by-court rule is also covered later in § on democratic and legislative processes. Other insider-tilted sealing occurs when attorneys seek to seal files and court records from media and outside scrutiny. The Associated Press spent a ton of money on lawyers to unseal New Hampshire insider cases — some involving my ex — because judges routinely sealed a lot of his personal cases. (especially when Chuck was accused of bad acts.) In a case where probate laws sealed hearings “unless good cause was shown,” Chuck argued his “personal privacy” because of the “gravity of the allegations against him” and his “prominence.” The case involved the loss of the entire estate(s) the elderly Groveton sisters,124 Bertha Chapman (an 80-year old recluse) sued for breach of fiduciary duty after Chuck used a standard form power of attorney to establish a trust that allowed him to spend down her deceased sister’s $100,000 estate.125 That trial judge, after sealing the records, and then taking the court file home with him nightly (to prevent reporters from viewing the court files) was replaced; the case transferred, and the new, presumably neutral judge simply asked “Whose privacy is being protected?” Two answers eventually were tendered — a. Silence (no ownership of the privacy was named); and b. His defense attorney in oral argument argued126 as the lawyer drafting the trust documents for the client, Chuck had an “equal protection interest in keeping the matter closed as conferred upon him by statute.” Chuck used to sit on the Supreme Court with the judge who claimed they sometimes wrote gobble-de-gook. Do you recognize it when you see it? It’s a jumble of legal-sounding words without cogent meaning. But it serves to protect Insiders from investigation and reporting. I suspect this is not so much about protecting Chuck, per se, as it is about protecting ‘the system’ from public exposure about how Insiders improperly manipulate clients to take their assets.

SHORT CUT #7: FLIPPING A CASE The case of the Concord Bomber (where I suspect the ACLU attorney flipped my client on the DNA sample) was a trick before trial, but it is similar to prosecutors who cut deals with jail house snitches and then hide the informant’s background, the deal or impeachment records affecting the witness’s credibility — in order to get a conviction against a bigger fish. Other times the attorney will sacrifice a low-status client in order to earn brownie points in a later case with a higher status well paying client. Like trades, you give up something now and get Insider credit for something more valuable later.

SHORT CUT #8: JAILHOUSE SNITCHES This falls in line with prosecutors who suborn perjury and present false evidence. Or who seek out false evidence from unreliable witnesses. “As distressing as it seems, prosecutors generally enjoy absolute immunity from §1983 liability for damages arising from their use of false or tainted evidence at trial and/or the subornation of perjured testimony.”127 “A man wrongfully convicted of murder on the basis of false testimony by a jailhouse informant sued the top two officials in Los Angeles County district attorneys office” because they failed to set up the ‘data management system’ that should have flagged the informant’s propensity to lie to get his sentence reduced.128 Thomas L. Goldstein served 24 years before getting out on a habeas petition accepted by the federal district court in L.A. His bid for 124 Katherine Webster for AP, State Supreme Court Opens Two Cases Involving Chuck Douglas, June 23, 2001. 125 Bertha M. Chapman as Administrix of the Estate of Mary H. Chapman v. Charles G. Douglas, III., N.H. Supreme Court, No. 99-487. 126 This is a judge who used to sit with the judge who claimed they sometimes wrote gobble-de-gook. Do you recognize it when you see it? It’s a jumble of legal-sounding words without cogent meaning. 127 Lawless, Prosecutorial Misconduct, §13.14, at 864, 2nd Ed., Lexis Law Publishing, (1999). 128 Linda Greenhouse, Justices Accept Question of Prosecutors as Lawyers or Managers, NYT April 15, 2008.

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freedom came about because the jailhouse snitch — Edward Floyd Fink (as in rat-fink) was actually a professional snitch, who regularly lied as he testified for the prosecution in exchange for getting reductions in his sentence. He lied on the stand that Goldstein had confessed to him, and he lied again when he said he receive no benefits — past present or future — for his snitching — er, witnessing. The Prosecutors claimed to know nothing about the fact that Fink had, for years, been a prosecution witness in numerous cases. The prosecutor’s go-to man. In 1972, the U.S. Supreme Court in Giglio, found that keeping track of this kind of snitch-information and other exculpatory information was a ‘core function’ of the work of prosecutors. The prosecutors said it was the fault of deputy prosecutors and they had other excuses. After getting out, Goldstein filed a civil rights suit, and the prosecutors claimed prosecutorial immunity and that they could not be sued for not keeping up the snitch database. The U.S. Supreme court agreed. But in 2004 the city settled Goldstein’s lawsuit for $8 million.

SHORT CUT #9: POLICE WHO LIE This also includes prosecutors who call police officers who lie and are known to have a propensity for lying, as trial witnesses. This is so prevalent across America that it has a catch-phrase “Code Blue” which refers to law enforcement officers who cover for transgressions by other officers. Rarely is it acknowledged. In New Hampshire, there is a secret list at the Attorney General’s office, called Laurie’s List — names of unreliable law enforcement personnel known to lie on the stand at trial. “The Northfield Chief of Police Jeffrey Shaw was stripped of his law enforcement authority because of accusations that he falsified records.”129 Prosecution for multiple violations “of credibility and integrity”? Nope. Too tough to prosecute, they claimed. And for years the Hooksett, New Hampshire Chief of Police was simply a displaced New Yorker, similarly removed. They do the same sneaky tricks in place after place, because no place wants to prosecute. A riveting narrative of the 1970s drug-busting officer extraordinaire — Paul Lawrence of the St. Albans Police Department, who, despite “a checkered past” moved to Vermont and “quickly became the most successful narcotics officer in the state’s history.”130 His decade long set-up of citizens, lying on the stand, framed hundreds of innocent people. Time Magazine in 1974 called him a cop-gone-bad. His profile fits the profile of similar cops131 across the country.132

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I’ve been in court where everyone on the court staff knows that particular officer lies — to make an arrest, to hide bad police behavior, to cover for professionals that never should have been given lethal power and authority over others. Almost no one except a judge (maybe the FBI) can stop that cycle. Prosecutors encourage or condone it because it helps them win cases — even of innocent defendants. And judge usually abdicate. It’s like The Church shuffling around pedophile priests. Report them one place, they popup somewhere else. Whackamole.

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SHORT CUT #10: MASS INCARCERATION “A drug sting based on the uncorroborated testimony of one out-of-control undercover officer” resulted in lock up of more than 1/10 of the town’s black population in Tulia, Texas in 1999 and 2000.133 Forty-six mostly young black men were railroaded into both criminal trials or plea bargains in a massive law-enforcement effort in the War on Drugs. The convictions resulted in first-time sentences (all were alleged to be very low level drug crimes) ranging from 20 to 45 to 90 years in prison. 129 WCAX-TV Vermont, “Council Decertifies Northfield Police Chief”, January 27, 2009. 130 Hamilton E. Davis, Mocking Justice, The New England Press, (1978). 131 Supressed from the jury, was Arizona Deputy Chris Sorenson evidence as a known-history of gun-pulling DWI traffic stops. Even after the shooting incident with my brother, Sorenson continued drawing his weapon at routine traffic stops, until he was removed from the force for a mental condition disability. 132 This institutional abuse of failing to manage an officer’s uncontrollable-use-of-force is a generic institutional problem of assigning the wrong type of people lethal force authority without effective internal controls. 133 Lynda Richardson, Young Lawyer, Old Issue: Seeking Social Justice, NYT, April 22, 1999

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The extraordinary efforts of a new Indian immigrant at NYU law school, Vanita Gupta134 resulted in an organized NAACP effort involving dozens of lawyers across the country — that overturned 46 Tulia lower court convictions. The court had convicted or wrested pleas based only on the trial testimony of one officer — known to be not credible, with the prosecution presenting no independent corroborating or physical evidence. It was an enormous effort by law enforcement to jack up the numbers in their part of the national war on drugs (funding campaign). Federal drug money was flowing, and even small police departments and prosecutors could apply to receive enormous sum for their war on drugs. The federal policy has been abated — but federal prisoners incarcerated for low-level drug crimes amount to only 14% of the country’s 1.6 million total prisoner population.135

SHORT CUT #11: RECIPROCAL ORDERS One family law issue — arises where the judge grants a protective order in an abuse case, but at the last moment throws in a second order — a reciprocal order against the victim. If the case involves ‘mutual’ threats back and forth, or affirmative punches or physical assault, then mutual is legal — but if the violence is always one way — a mutual restraining order is simply a lie to accommodate the perp — and can have severe long-standing consequences to the victim. The victim gets victimized twice. I don’t know why judges see nothing wrong with just doubling up — when one is innocent and a victim of the other. Judges seem to think it somehow ‘equalizes’ the harm. They fail to recognize that such a ruling deprecates the victim, minimizes the beating, and suggests the victim needs social punishment. My guess it is a latent gender bias problem in judges. Makes the perp seem no so bad if both sides get charged equally.136 I saw this trick in my own case, where I wasn’t even present at the location. My husband and his sidekick Susanna drove up to break into my home during the time his lawyer Tony Tarbell pre-arranged for me to view discovery at his office. Tony was adamant that I needed to let him know before I left the premises — strange, right? I think the judge sitting on the assault/restraining order case didn’t want to hurt Chuck’s feelings or was eager to minimize and deprecate the assault and battery/trespass charges the police reluctantly filed against both Chuck and Susanna. Of course, they had no problem filing assault charges against my brother Greg, who stood still and didn’t resist the kicking, punching, hair-pulling, scratching both attorneys inflicted on him because they were trying to drive away — before the Concord police arrived. Greg was visiting me and called 911 when Chuck drove up and began trying to open my house doors and windows — knowing I was at Tony’s office going through boxes of document discovery. To the extent the restraint orders are placed in public records, a “reciprocal” order will normally affect credit, career and work (hire-ability and security classifications), gun ownership, custody of children, and personal reputation. ‘Course, if you’re “special” none of that happens.’ Special people don’t even end up in the newspaper list of court cases or police log/ charges. Reciprocal orders can also be a backdoor means to take guns from the other side. Never letting an opportunity go to waste, Chuck used his request for mutual restraining orders to have the PD confiscate my guns. (Remember I wasn’t even home but was in Tony Tarbell’s 3rd floor attic during the entire Chuck-burglary debacle.) Then he asked the district court judge for award him all of my guns. (District court lacks equity jurisdiction to award property to anyone else.) I moved to intervene in that action and was denied. A limited jurisdiction court ordered a transfer of my property over to Chuck — without provocation, notice, hearing, opportunity to intervene, or jurisdiction.137

134 At the time was she was a student — now a deputy legal director at ACLU. 135 Vanita Gupta, How to Really End Mass Incarceration, NYT, August 14, 2013. 136 I am aware domestic violence goes both ways, with some females attacking a male partner. I’ve had those cases too, but they are, on the whole far less frequent than the dominant pattern of male on female violence. 137 Charles G. Douglas III v. Captain William Halacy, Merrimack/Concord District Court, No. 97-CV-00523.

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When a domestic aggressor switches over from physical and emotional violence — to legal abuse in court (called “Legal Abuse Syndrome”)138 an illegitimate reciprocal order for domestic violence can be used to assassinate the victim’s character, taint later proceedings, impute blame, and take property. These are fairly common, albeit destructive patterns of trial judge abuse. Lazy judges just say, oh, this is he said-she said, and they grant without bothering, as an insider favor or out of sheer lack of diligence.

SHORT CUT #12: WAIVERS Coercion or tricks to give up fundamental rights is a trick that can be approached at any and all stages of court. The ones before trial include plea bargains, speedy trial, confessions, the right to a jury, open courtrooms and public trials — and competent counsel to represent them. I have had people I respect tell me they just wanted to get it over with — meaning the legal mumbo-jumbo, the legal prosecutor/attorney culture, the terrible emotional stress of it all — and the uncertainty. Why would an innocent person plead guilty, we think from a logical outside position of safety? Plea bargains are not logical. They are responses to intense fear caused by systematic institutional threats and intense bullying. The system has developed into a maximum stress machine for outsiders, that no one outside of law can truly understand until they have the experience in person. It’s non-logical and fear based, just like false confessions are. They may come about as a form of torture and deprivation — or other police or lawyer tactics to coerce or grind information and admissions from innocent people. But a lot of people don’t know they are waiving anything — the legal system is streamlined now, to smoothly process about 99% of criminal cases without trials and avoid appeals, to enable the state to have extra time for bringing a case, and to allow lawyers to run through hearings below the wire of their client’s understanding. It is a rare client who understands what the attorney is giving up in court — with and without the judge’s suggestions. I tend to scrutinize waivers the same way as rulings off the record and sealing —

SHORT CUT #13: OFF RECORD RULINGS

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In my paranoia,139 I have come to abhor ‘off the record’ anything — hearings and rulings. By the end of this book, you may be mistrustful also when the judge decides to put his decision out of the process of public scrutiny and review.

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The biggest problem is this kind of ruling is not a ‘courtesy’ or ‘favor’ to avoid public embarrassment about disclosing a private fact. It avoids making a record and help an insider or VIP avoid exposure of sometimes really bad behavior that would impress the public about that VIP’s character. I’m not thrilled with the world knowing my private life, but when it came to combating ol’boy judge tricks in my cases, private details provide necessary proof. It’s a natural deterrent — that keeps people from publicly complaining. The embarrassment of not having a perfect life, and judges rely on the fact that most of their foibles just fade into obscurity in a protected legal file. There are many other ways judges keep out essential facts, testimony and evidence. Some are legit — but not merely to protect the reputation of a powerful insider so he’s not embarrassed by prior misconduct. Sealing, confidential orders, judge-manipulated rulings that are nonsense. So making an off-the-record ruling is a last resort opportunity, if through fortitude, an outsider has resisted and overcome all the other ways judges have of avoiding a record. Here are a few quick real-life ex wives of judges examples of off-record circumstances: The judge has a gambling problem and enormous debt he is trying to pass off as ‘marital debt’ so his wife’s separate assets can be used to cover it; The attorney is addicted to kiddie porn on the kid’s computer, and custody of the minor children is an issue in the divorce; 138 Karen P. Huffer, Legal Abuse Syndrome, Fulkort Press, 1995. 139 My plan one Christmas, was to commission designer coffee mugs for my friends, with the question, “Is it paranoia if they are really after you?” inscribed on the side. Sometimes things got so bad (in the legal tricks department) my staff and I would laugh ourselves silly, thinking up new coffee mug phrases.

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The father for years beat his family; son is charged with deadly assault on his father. No one in officialdom anywhere will hint at ‘self-defense’ and ‘burning bed;’ The judge and the plaintiff’s lawyer had an affair; The judge wants to have an affair with the plaintiff; The judge and the plaintiff’s attorney are having, have had, or will have an affair before this case is over. The plaintiff has a huge IRS tax-evasion issue but it would make the profession look bad if massive tax evasion is allowed in as evidence into his divorce. Think of any embarrassing human condition that most people want to keep quiet — incest, illicit sex, drugs, homosexuality, and physical abuse of family are high on the list of VIP human foibles that get handled off-the-record. So the injured party may feel vindicated to have uncovered, collected, and produced this evidence for court — none of that will matter because legally, it didn’t happen if it is not in the record. FOF. This is a variation — when the judge refuses to make a requisite finding of fact. You have put in evidence and testimony about some element necessary for a legal result. It can be any legal element, but let’s say you represent a disabled wife who is dependent and needs financial support. The two legal elements are need for support by one; and ability to pay by the other. So you need the judge to find a need. The other side puts in nothing, and does no answer. Your wife-client is old, physically impaired with a permanent condition, and has never worked. Her job skills are homemaking. It’s a high seven-figure income family. The judge refused or omits to make the requisite FOF (finding of fact), and denies the motion for support. Happens all the time in family law.

SHORT CUT #14: PRIVATE COURTS —A NON-CONSTITUTIONAL FORUM I didn’t catch onto this sneaky judge trick for years because it wears a disguise. The tip-off was when the court set my um-ta-de-umpth professional conduct trial-on-the merits at the main hall in the State Supreme Court and scheduled it for a week. Okay, a week. So what? The week ran Monday through Sunday. Who in the whole United State of America schedules court trial for Saturday and Sunday? I already recognized judges reserve the main hall at the State Supreme Court for maximum dignity in cases where they monkey around with special treatment but want maximum intimidation. When judges are looking to be found especially respectable, they use bigger words, more formality, more security guards, and the main hall on the hill. Using trappings and the appearance of justice for maximum effect and intimidation. It’s like wearing your best Sunday Hickey-Freeman suit to the beach. Alright, I’m dating myself. Armani suit. It tends to stand out as at least unusual and maybe a tad formal and overdressed. It’s overkill. There was also that question about my double-oh-seven secret docket number, and the court records hidden under lock and key behind the most remote library stacks on the top floor. Humm. I wonder if my case was kept in a secret court vault? And the absence of books of rules and case law on attorney conduct. Remember, this is a unified bar area of control. So it’s not like the case law that goes back to the founding of our country. This is so-called area of law began for the first time in the 1980s. I could hardly find any books on attorney discipline rules, and none on case law in America, and I write, and read a lot of law books. The court committee rules were non-specific and jumbled — and so vaguely worded that they sure weren’t written by my cohorts back at the LOB (The Legislative Office Building-a mile away at the bottom of the hill.) The LOB staffers who wrote state laws — back in the days when I used to draft occupational regulation rules and law — were precise (except when we instructed to be ambiguous.)140 In the end, neither the prosecutor nor I found any case precedent — I was the first attorney case in America with this charge — only what exactly was the charge? 140 Sometimes, Senators wanted ambiguous language to help out private interests. House leader Vinnie Palumbo almost got me fired because I tried to clarify the word “contiguous” when referring to a Nash Stream gravel-mining special interest bill — sited to go into the middle of an environmentally protected forest area. Fortunately, he went to prison and I kept my job. Palumbo was known for his special position on external ethics oversight, “We’re all gentlemen here, and gentlemen keep their own scorecards.”

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Was it criminal? Was it civil?

It was neither. It was somewhere else — really vague, unspecified, and not a law written in any code or law book. This makes it difficult to defend. “It” (my so-called ‘crime’) was whatever the judges said it was. We saw what ‘the charge’ was when it applied to the Chieftain in his impeachment proceedings. And, as you see, it was amorphous — changing shape — like Chinese shadow-play. (A game where a sheet is between so one person and everyone else. There is a lot of groping and fondling, and the individual can’t tell who is touching him.) A couple of years into the so-called investigatory proceedings against me, the prosecutor (the bar) stopped everything, and added a new collateral charge (that means the second charge had nothing to do with the first charge — namely, nothing to do with the reason I was in court at all.) The new added charge was that I was crazy and ‘unfit to practice law.’ And should therefore be disbarred. That charge was just tacked into this other case, a couple months before trial, so the case stopped for more than a year, while my peer- prosecutor tried to create investigate and create evidence to support the new charge. She did hours of tape recorded interviews with me. I objected of course; the volunteer peerprosecutor insisted. My ex stimulated this (as with everything else), and the judge and committee decided it was worth a $700 an hour psychiatric examination — at Harvard, no less! In the interest of cutting down on redundancy — you can read all about this Harvard doc in a later § on IMEs (Involuntary mental exams). It was, as other attorney disciplinary proceedings are — hauntingly similar to a Church/State Inquisition trial.

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As this was going to print, I had an experience on a two-lane back road where I was driving the posted speed. Traffic was light. It was a beautiful day. A driver began tailgating me, very close. After a mile, I stopped in the middle of the road, and motioned him to pass. He was waiving his arms and apparently yelling as he drove his small car around my enormous Ram pickup. I caught up to him a mile later, and he was tailgating another, the last car in a string of three. The same way — two feet back, too dangerous for safety. About three miles more was a stoplight, and he shifted lanes and began tailgating a third vehicle on the interstate, and I realized, it wasn’t me. The man was a random loose canon — much like my peer-prosecutor. Someone who tailgates — years — aggressive, bullying whatever crosses their path. Without regard for public safety, law, process. But the latter is sanctioned institutional abuse, and long term, more dangerous than aggressive driving.

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The psych report turned out okay. I’m not crazy. You can keep on reading. But it sure cost of lot of money (which I was charged) just to tell my mother that I’m okay. A little unusual perhaps. But sane. For example, I live in a ghost town. We all know that everyone in this ghost town is a little unusual. For example, our biggest problem is rain (two inches a year) and bears. My dogs wouldn’t go out last night before bed — they wouldn’t leave the front step. One backed up. That means bears are afoot in this incredible Boreal One Zone darkness we have here. So, my problems now are not the usual American problems of traffic and cell phones — because here there is no cell phone coverage. There was that one traffic ‘problem’ with my sheep and baby goats. And there once was a six foot rattlesnake sunning himself on my front step, so I couldn’t go outside. But a ghost town gives me a lot of time to read and write and the weather is incredible. Those attorney ethics and conduct rules and charges were overly vague — the first ‘indictment’ sent to me was multi-page single spaced narrative, full of inaccuracies, with just a flavoring of truth, (greatly obscured, and obviously prompted by my husband) as were almost all the two-dozen professional charges and dozen or more slapp suits brought during those years of my divorce. The so-called prosecutor — had indeed been a Brooklyn prosecutor before she became a New Hampshire attorney and volunteer prosecutor. Her firm paid her salary, and she volunteered for the bar.141 She wrote on her resume that she was a Manhattan prosecutor, but what the heck — it’s a small distance from Brooklyn to Manhattan (although a world apart in prestige.) She may have been trying to make up for Brooklyn career beginnings. But so many parts of these charges, procedures, and this trial were … funny, and distorted. Procedurally and substantively funny. It took a long time for me to get the distance and perception to realize (duh) that this was not regular court. Nothing about it was ‘regular.’ There was no legislative or Constitutional authorization to form or operate this court.

141 My wonder is — do law firms foot the bill for volunteer attorney salaries because it buys them cover in case anyone in the firm get a PCC complaint? Brennan’s hallway threat years earlier made me suspect that.

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This was judge-made court — a secret process for disciplining attorneys that in some ways mimicked Constitutional courts. Not incidentally Constitutional Courts have been voted in, disbanded, re-organized, and re-formulated about once a century in New Hampshire history. New Hampshire has avoided a Constitutional Convention for a half century, since the bar unification movement started. I think judges must be afraid that they will be reviewed, and might lose control, or maybe the delegates will pull the plug if they can’t stack the delegates with court Insiders. Throughout U.S. history, when judges act badly, the legislative branch has pulled the plug. President Jefferson did it in 1802 when he abolished the U.S. Circuit Court and out went the offices of 16 judges. It was called An Act of Repeal.142 Anyway, I finally got it — I was being tried in a private inquisitional court, with a special volunteer prosecutor from Brooklyn on Saturday and Sunday with a retired disqualified judge who was deaf. The deaf judge was picked by a chieftain who was disqualified until he changed the color of his hat. My witnesses were cross-examined by the prosecutor who thought they were lying because they were Christian. I wasn’t crazy and the Harvard doctor found I was sane, so the bar prosecutor said that the ethics problem was that I wasn’t crazy after all. She said I was a liar but not a thief, and her main allegation remaining after all the dust settled was that I paid myself my hard-earned-and-accounted-for over-due legal fees — instead of giving the money I earned — for the work I did — to the client or my ex husband. The crime or ethics violation finally was labeled putting my interest before my client’s but that wasn’t accurate or a crime, and it wasn’t friggin’ Constitutional.143

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(1) STACKING THE PLAYERS While the judge is the ringmaster, a circus needs to be staffed with insiders who respect how the insider system works, and who appreciate whatever tokens of appreciation they receive from the process. Tokens are not always money, but look for the same compliant Insiders to be appointed in multiple court cases. In New Hampshire, a small incestuous bar, the same court-appointed experts are named over and over. Trial experts sometimes take out ads or get recognition in the bar newspaper as recipients of honors or CLE instructors144 and sometimes, by referral within the close-knit circle of power-players. This trick works smoothly if everyone involved in the trial is an insider-player, so stacking all the expert players is important. Even the victim’s lawyer usually becomes compliant, especially if he wants more appointments from the judge in future cases. If it happens that the target/ outsider goes outside the inner circle and hires an independent lawyer — someone who doesn’t regularly play in that court — than the judge will kick into gear to remove or minimize that impediment (i.e. the outsider) to the protect what is a profitable and predictable insider process.

(2) THE BANDWAGON EFFECT One of the functions of being in a club is … being loyal to and supporting the other guys in the club. Bandwagon effect is when apparently unrelated attorneys and others jump into the fray of protecting the judge, the court in general, the

142 All this was a huge political debate (a war really) between Federalist including Alexander Hamilton, and the Anti-Federalist, including Thomas Jefferson. The point is — courts are bottom line, at the mercy of the legislatures that authorize them into existence, starting with the First Session of Congress in 1789. The country’s founding Constitution came into force in 1789, then Congress was formed, and finally, Congress established a federal judicial court (called Article III judges). It wasn’t simultaneous — courts are the third and last branch of government, and all their power flows from Congressional and legislative authority and the Constitution. That’s why the weasel-around trying to get words put in the Constitution. 143 I got into a lot of trouble once using that word on television. The producers spent a lot of time figuring out if we had to re-shoot the segment because I said it. It’s still hard for me to swear. Friggin’. There. I said it. And I apologize if anyone out there thinks it is a swear word. I honestly never thought that or I wouldn’t have used it on television. 144 CLE is continuing legal education — mandatory classes for lawyers (who pay) or judges — who generally don’t personally pay.

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bar association, or a powerful insider — from exposure or attack from a common enemy — such as a whistle blower or a defendant who challenges the systematic abuses occurring in his case. Bandwagon may take the form of joining (two opposing parties) together to double-up or work in agreement) for motions, sharing discovery, and filing collateral lawsuits or professional conduct complaints against outsiders.145 Cooperation between insiders may help the client, but helping the client is not the focus nor even important. Screw the client. This is about some personal gain for an attorney by helping other Insiders win the case. The alliance between Insiders is a future chit that can be called in for help or referrals or appointments in the future. Bandwagon works to overwhelm, whipsaw and keep an opponent from going on the offensive. He is busy catching up and playing defense. Often there is a great disparity in legal resources.146 Think of jumping on the bandwagon as joining a scrum at a rugby match. Guys pile on for the sheer physical feel of smashing something. At first, it may be for the fun of bullying — it feels good only when you win. But if they lose a few, it becomes personal — a grudge matter of redeeming the team image and retaliating for a good hit or score. Club members who pile on to help out against non-members do so as a symbol of their loyalty and fidelity to the bar leader or insider, but also in defense of the legal monopoly. The bar and courts are a cast system — highly protective against those who attempt to represent citizens in court. Especially, if outsiders help a client in court for free.147 It upsets the economics. Try representing or even helping people without a being in the club (having a bar license) — even for poor people that no attorney wants to represent because they can’t pay. The Asch Social Pressure Conformity Experiments (the Asch Paradigm) about white male conformity was mentioned in Chapter One. It’s worth explaining in this context of scrum.

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Groups of eight people were shown a series of flash cards with lines on them and asked to match the line size.148 Answers were oral for the whole group to hear. For a number of rounds, everyone agreed on the correct answer. All but one person in the group was a paid shill (called a stooge) — so seven were coached how to answer. No matter what they perceived, their answers were scripted. On the later test rounds, the first seven people were coached to answer with a pre-selected wrong answer. Here’s another example of the cards. The un-coached person was asked last, after he heard seven others answer incorrectly. The study was run with a control group. In the control group, the error rate was 1%. In the pressure-to-conform group, the error rate was 75%.149

Conflict with group ideas — even when they are known to be wrong, it demonstrates how natural is the inclination to yield one’s own opinion to group pressure. My hypothesis is that in the controlled closed system of lawyers and judges that developed after the Asch experiments in 1951-52, the social pressure from a unified mandatory bar organization — run by a closed-loop judge system — has increased exponentially the inclination to conform among lawyers. There are more and tangible deterrents as well as economic and prestige pressures resulting from setting aside one’s natural ‘correct’ or moral answers in the face of overwhelming peer pressure to conform with the group. 145 What I have found this type of opponent cannot do, is not bill their client for duplicative discovery — even if it is produced for one, another opponent may send highly duplicative and excessive discovery requests. It seems to be an economic incentive to cheat, even one’s own clients. 146 Remember Kennedy’s Triangle and Two Defense in the preceding chapter? 147 In my divorce, Chuck manipulated kids into a hostile takeover of my interest. The judge and his best friend worked together, and the girlfriend hired prosecutor/attorney Maggiatto (the Pamela Smart prosecutor). Chuck sometimes used an outside attorney — trading services. There were 6 or 10 or more conforming attorneys in the courtroom against me — most unpaid. That’s scrum. I don’t count the AP (also an intervenor) because they were not part of the rugby scrum. 148 Asche images from YahooSearch. 149 Asch conformity experiments by Solomon Asch, Swarthmore College, 1951 were the first of many social-influence experiments, Effects of group pressure on the modification and distortion of judgments, In H. Guetzkow, Groups, Leadership and Men, pp. 177-190, Carnegie Press, Pittsburg, PA. See also Asch, S.E. Opinions and Social Pressure, Scientific American, 193, 35.

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There are two factors at work: mandatory membership is new — and a private group — (not the state) — controlling professional licensure and the ability of lawyers to work. This quasi-court delegation of state power to a private organization to control lawyers is the beating heart and soul of the systemic abuse problem.

(3) LAW SCHOOLS ARE SCREENING TIGHTLY FOR ADMISSION The next factor is law schools are screening tightly for admission. For hundreds of years, it was not necessary to graduate from a law school to practice law. Now the graduation requirement with a selective admissions process screens out certain types of personalities that otherwise balance our society: the artistic, the independent, the helpful, the eccentric, and the non-conformist are not admitted to study. The breed of person is screened continuously — for school admission, for state bar admission, and for ongoing conforming behavior. Because law practice is a tightly controlled economic system, social and peer pressure to conform is intense. I expect the 25% non-conformist (i.e. the honest response) Asch ratio is much smaller within the legal profession — in the range of one percent or less.150 There is a higher degree of behavioral conformity within the legal system than in general society — because of the economic control over members, and the fact they have no choice but to join and submit. Ironic? The Asch experiments suggest that attorneys who act with individual judgment — not under peer pressure — would be reliable. (And remember, that was roughly 25% of the test population.) But alas, that attorney-non-conformity cannot operate long within the current system. I know one attorney who was trying hard to avoid the bar culture. For several decades he was the road manager for the Grateful Dead — an extraordinarily bright man who ensconced himself in a small backwoods community, only did estate planning, never ever went to court, never socialized with lawyers, and maintained almost no outside professional contacts. His one staff person was another lawyer, and he went into his office only one day a week or less. He worked conscientiously at keeping his head down and having a successful family life. Two other gentle-natured New Hampshire lawyers quit the practice of law when the bar mandated they join, and one when the bar reached out to censure him. What a loss it was to the profession to lose these thoughtful, moral, conscientious men. There is a lot of dissatisfaction within the profession — more than half my law school graduating class is not practicing law, I’m told. Does the profession lose or preclude the best among them by choking off criticism and promoting avarice? The paradox is that the most naturally rational and logical thinkers in our society — those trained in law — are people in the best positions to observe illegitimate acts of judging. That group must remain silent to stay in conformity with the profession. Institutional conformity and protection are required and there is little or no criticism of judges or the system tolerated. Lawyers are by nature and nurture taught to expand their ability to rationalize. When my daughter was completing a class at Boston University in television broadcast, she needed to interview people on air about the pros and cons of assisted dying (another oxymoron) for a program about the morality of dying as a personal choice. The helpful mother, I stood in front of the statute of John Stark at the statehouse and spieled off one side of the moral argument for her camera. Later, she found she had three other people willing to provide similar arguments, and I had to do a turn around and argue the other side. This skill set was taught in law school. And I have no qualms about being able to find arguments to support either side of a debate. It was also groomed in speech club at Oakwood High School. While not a virtue, being open-minded to organize arguments for the other side’s position, also is vital to that periodic internal moral inspection needed for people who believe in independence and self-guidance. That kind of living requires a moral check-in periodically. And no, you can’t farm that out or check off a form sheet. It’s highly subjective and personal. Lucky are those who were raised with some kind of religious value system. They may not follow it — all of it or some of it, but as adults, it provides a shortcut to what we each stand for. Yes for this trait — no for that one. It helps you sift it out what you believe is right and

150 Of course, not all lawyers are this way. But half my law school graduating class is not practicing law, and many are discouraged and unwilling to practice the profession after they went to extraordinary lengths and cost to get qualified for — The job/career satisfaction rate among lawyers is only slightly higher than the satisfaction rate of women who marry lawyers. They can be trying in marriage.

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wrong. And that lawyer skill of arguing both sides — Being able to expand mentally to encompass and evaluate another person’s viewpoint is a pursuit of individual knowledge and integrity. People of this persuasion don’t need a judge to tell us what’s moral, or ethically right and wrong, because we determined that probably a long time before we got to court, and we can trust ourselves. At the same time, suspending or putting aside one’s knowledge in order to conform to group dictates — is not the same thing. The difference in law is this insertion of the ego. Like a terrarium where in a closed moist atmosphere, things grow (including fungus, bacteria and mold, when the balance is not carefully maintained.) About a half-century ago, egos of men invaded the terrarium — the injected this group dynamic into the operation of law — when the bar turned into a private business monopoly, and peer-acceptance and money became the moisture in their closed society. Ego represents the small self — the unenlightened base and economic interests. The interior of humans that puts the self first — before knowledge — before justice — and before the higher self. Closing off lawyers from their higher selves — through this insistence on cultural conformity about judicial primacy — turned the culture of law into a social conformity trap for those working in the profession. It’s a paradox — those working in the field of justice are sometimes the most unjust and immoral in our society. Father Rohr talks about the higher self that holds the virtues of faith, hope and love where “holding the opposites is the unique work of the Spirit.”151 The work of personal transformation is one of first finding (actually falling into) a stabile moral position to work from, then to detach from the ego/self, and balance the inconsistencies and incongruities of life — so you can “observe both yourself and the conflicting circumstances with objective, calm, loving eyes.” He’s talking of course, about compassion. Something rarely found in law, and almost never in courtrooms. It is the opposite of the egos involved in the conformity experiments, where intelligent, rational men put aside their values and intellect, in order to be acceptable in some small way to the group — first and foremost, to belong. In the highly litigious society the western world has become, handling conflict is about masculine egos — for example, in both the military and in law, (both generate a great deal of money for the players.) It satisfies and grows the egos of the players who conform to and work with the group. Therein is the tragedy in justice.

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THE PARADOX

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According to my son, balancing the unpleasantness with the pleasure is “the true paradox of tragedy.”152 It is not that hard and is overcome and becomes easier to do over time. He relates it to popular tragic literature and music — aesthetic experiences — which we love to cry over — where the pleasure actually comes from the pain of the experience. The pleasure of being accepted by the group is actually enhanced by the small deceit of the soul in being intellectually dishonest — and dishonest with one’s self. I’ve heard addiction described the same way — the first rush of heroin is the greatest — never to be replicated again. The first love the most heartbreaking. The first kill is the most traumatic. The first … fall from grace of any kind — is a tumble into the emotions of fear and anxiety. It is the contrast between the two that makes the experience memorable and addictive. As a practical application in the courtroom, this paradox is important in dealing with judges in circumstances involving non-lawyers in court. Outsiders are perceived as a group threat — not only to the economics of lawyers, but to the legal ego and institutional group practices of all. Things are to be dressed up a certain way and everyone in conformity benefits, as long as no one says the emperor has no clothes. Outsiders have no stake in this insider system. They are not as likely to conform, especially if they are destined under the secret rules to lose. So the legal system is wary of outsiders in the courtroom, and especially those of the non-conforming kind.

151 Fr. Rohr, Holding the Tension: The Power of Paradox, discs 1 and 3, CD & MP3 downloads. 152 From an unpublished paper by my son, The Paradox of Tragedy”, Summer, 1999.

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Outsiders sometimes are allowed by judges to help unrepresented parties — but only as long as they respect ol’boy rules and never challenge ol’boys for misconduct or the judges for what they do, no matter how unfair. Outsiders are allowed in like hospice workers — they can ease the pain, as long as they cause no trouble, don’t try to fight. Having someone else with the victim can help reduce the tension in Court — but they will have to keep telling the judge that the party needing help really can’t afford to pay a lawyer. You humbly ‘confess’ (that’s the posture they like), Your Honor, she tried to find a lawyer but no one would take her case and she has no money or assets to trade for legal services. They like that better than someone saying: Your Honor, he doesn’t want to give up his hard earned lifetime savings to pay an expensive over-billing incompetent lawyer to defend something he should be able to do himself with a little help. Or — Your Honor, he refuses to pleabargain away his rights for a jury trial so the lawyers all quit representing him after taking his money.

(4) WHO’S NOT IN THE GAME — UNABLE TO FIND A LAWYER Twice in my divorce case, the court ordered money out of the funds it held (ostensibly my business payment) to pay for my lawyers. The first was $15,000 for a retainer at the start of the case. My ex had a team of seven associate (all free lawyers) who filed enough paper cumulatively to generate $18,000 in fees in responses by my lawyers in three weeks. Two lawyers responding to Chuck’s avalanche of filings. The second team was a $35,000 retainer for lawyers I was ordered to hire to do the re-trial following appeal. They lost worse than Greg at the first trial, meanwhile running up a $55,000 bill (Judge Coffey stretched the trial out for an extra week; making the transcript for appeal cost three times more.) $73,000 in attorney fees for 7 weeks of attorney representation. Chuck loves that trick — he hires (relatively) cheap ‘kid’ attorneys to write his pleadings (costs him nothing) — forcing big bills in response. If he’s proliferate enough, the other side never has time or energy to mount an offense. And of course, the other side starts from behind with a six-month lag or more, since the case begins with a multi-faceted ambush. And always a lot of drama. We’ve reviewed already the plug the springs trick where I lost my partnership interest because of an undocumented oral ‘offer of proof’ that was his sole-proprietorship. There was never an evidentiary hearing about that, because this case wasn’t about finding the truth. Douglas & Douglas? The judge wasn’t going to be bothered with even superficial evidence much less to hear or admit evidence of how I began the firm when Chuck was still in U.S. Congress. Nor was he going to investigate details of the fire-sale. The media, however found it mesmerizing, and even wrote a television series — Family Law — with a couple episodes from the court and news stories.

(5) HIRED GUN EXPERTS Similarly, for the right price, almost anyone can become an insider expert, and there are those who sell their expert testimony professionally as well-paid careers. They understand scrum-techniques, and for a high price, will deliver an expert opinion favorable to any well-heeled client.

ACCOUNTING AND BUSINESS VALUATION EXPERTS My ex preferred to use his own clients as newly-minted experts (it was cheaper or probably a trade of services), so he helped transform a former insurance salesman into a business valuation expert who valued our law practice at zero. The judge accepted that. What a surprise! My experts, on the other hand (with an impressive string of CPA and IRS credentials and achievements) was precluded from testifying by tricky judge rulings. On re-trial after appeal Dennis Bishop was able to get in his multi-million dollar figures, but the judge didn’t care. She never did care — except to consistently rule to keep my evidence out. The Associated Press (who was an intervenor) consulted with Shannon Pratt153 — one of the foremost business valuation experts for small closely held businesses, (such as mine) in the country — about the

153 Shannon P. Pratt, CFA, FASA, MCBA, MCBC, CM & AA, and author of Valuing a Business. The Analysis and Appraisal of Closely Held Companies. Fifth Edition.

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credentials of the newly minted expert Edward Hewson on the other side. Each expert- Bishop and Pratte were later professionally threatened by Hewson and Chuck.154

SPECIALTY EXPERTS If the state is footing the bill, the price may be dolled out by judges in installments (a child psychologist who is consistently appointed by the court to testify for the state child protective services department in every court case); or the same accountant who appeared over and over in judge-divorce cases.

COCKROACH EXPERT At a national bar conference, I was approached by a psychologist-attorney about being an expert for my child custody cases. His business card literally read as above. He assured me he would say whatever I wanted or needed in court. For a healthy fee. It is not shocking that there are lawyers and psychologist like this — but that they know what they are and advertise it. Some cases also attract interest from an industry — so experts for both sides jump in to protect the industry and to provide free experts for one side — without regards to the facts or merits of the case. That happened in Erie Railroad v. Thompkins, that we mentioned earlier and will revisit in greater detail in the chapter on Appeals tricks.

THE ZOLOFT BATTLE OF THE EXPERTS CASE The 12-year old tried for murder of his grandparents155 took one of those 15-minute of fame turns, when experts for both sides prepared to testify at trial about the effects of the adult-antidepressant drug Zoloft. It was prescribed for the 12 year old shortly before he committed the slayings and set the house on fire.

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There was already a “national debate”156 in progress at the time Christopher killed his grandparents — about the ethics of medicating children with Zoloft — (it was not recommended.) Pfizer, who manufactures Zoloft,157 volunteered to help the county solicitor prosecute Christopher to overcome any suggestion there might be links between his sudden extreme violence and his starting to take adult antidepressants.158 So Christopher’s case, took on a larger national dimension with millions in corporate profits at risk.

Two other civil cases involving the same kind of murderous, non-psychotic acts by people taking a similar S.S.R.I-type antidepressive drug (Paxil), were settled after jury trial verdicts awarding $6.5 million to relatives of Donald Schell, who — two days after starting Paxil — murdered his wife, daughter, granddaughter and himself. The other Paxil case was in Cheyenne Wyoming (Arnold Vickery). Both men were adults from the Barry Meier article for the NYTimes, supra.

6 154 This credibility of expert battle resulted in professional conduct threats and complaints; lawsuits for slander; years of organized threats to intimidate. 155 Christopher Pittman of South Carolina. 156 Barry Meier, A Drug on Trial: Justice and Science; Boy’s Murder Case Entangled In Fight Over Antidepressants, NYT August 23, 2004. 157 From the article by Barry Meier for the NYT, supra. 158 Family Court Judge Daniel Leddy, Staten Island Advance, June 19, 2007.

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(6) JUDGES PREDISPOSITIONS TOWARD LAW ENFORCEMENT AND PROSECUTORS Although not a forensic expert, law enforcement personnel frequently testify in court and as familiar faces and uniforms to the judge, their testimony not only generally receives preferential weight, but is accepted as true, notwithstanding opposing testimony of eye witnesses, defendant, and experts. Cops get away with lying. This isn’t just because they show up in court often — it’s because judges are predisposed to favor the prosecution team from the start. The weight of bias comes from their background and familiarity with prosecution, coupled with their fear and aversion to the criminal side — or the outsider if you don’t happen to be a criminal. Judges often identify with prosecutors, because prosecutors are like more like them. A remarkable judicial bias study by the California Mercury News identified the importance of background and training in judge bias.159 Not only is there a social culture, but “if that is all the legal experience a judge brings to the bench, there is almost bound to be a predisposition for the prosecution” said Alvin Goldstein. There are 79 judges in Santa Clara County, and more than one-third of them spent their entire legal careers in the district attorneys office prior to appointment.160 This pattern of judge preference for law enforcement came to a head when first the Rodney King case, and then the Rampart Scandals broke in Los Angeles. Because of video telephone technology, eyewitnesses can record and prove that officers lie in court to get convictions of innocent people. Head of the ABA’s criminal justice division, Myrna Raeder said “the legal system has become an entrenched culture in which everyone is looking the other way.”161 She attributes pressure on officers to produce convictions as the reason so many officer lie on the stand, plant evidence. They also ignore or fail to report and investigate civilian eyewitness testimony when the eyewitness contradicts a conviction of the person who officers decide is guilty. This leads to wrongful convictions because judges just roll over in their biased acceptance of this kind of set up. In the LA police corruption scandal in 2000, more than 200 people were falsely convicted. Suing the police force or the city has not proved to be much of a deterrent factor, despite over $300 million in LA lawsuits from the Rampart Scandal. In addition the Department of Justice keeps tabs on law enforcement agencies around the country that have a pattern of misconduct162 and sometimes will conduct a federal investigation about police department patterns (or practices) that violate the Constitution. “The DA and the LA Court system not only permitted but encouraged a culture in the police department that said anything goes.” Mary Broderick, Executive Director, California Attorneys for Criminal Justice

EXAMPLE: “A PATRIOT”163 Judge Janice Sterling transferred over from a family court164 to sit on a high profile criminal court case in Cottonwood Arizona — a no-harm cop shooting. No one was hurt, so it wasn’t a traditional shooting case. The deputy sheriff, Chris Sorenson at a routine traffic stop without provocation, crouched behind his cruiser door and shot first. He had a work history of over-aggressive use of deadly force. (That lost, concealed, and sealed using many of the tricks this book describes. We could never get the Brady violations heard, or didn’t know about them at before trial. Chris Sorenson

159 Alvin Goldstein, former prosecutor and Marin County judge appointed by the Department of Justice quote in How Judges Favor the Prosecution. http://www.mercurynews.com/mld/mercurynews/news./special_packag. that 79% 160 Id. 161 Daniel B. Wood, One Precinct Stirs a Criminal-Justice Crisis, A Scandal in the LAPD, Christian Science Monitor, February 18, 2000. 162 Past DOJ investigations include Albuquerque, New Mexico’s police department Fast and Furious — the police gun-sales to Mexican drug lords operation; also investigations in Pittsburgh, Steubenville, Ohio, Columbus, Ohio, and New Jersey. 163 Send a tea bag to Congress: recommended viewing: https://www.youtube.com/embed/jeYscnFpEyA 164 Note this pattern — of assigning a case to a judge experienced in a different kind of court. Here it was family court judge re-assigned to a high profile criminal case; the pattern is the judge is not competent and knowledgeable in the new area specially assigned. The motivation is compliance, not competence.

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had a work pattern — he would lose control of his voice and actions, and draw his gun screaming — it happened before and after this incident. Other law enforcement officers would no longer back him up at his DWI traffic stops. The first prosecutor said, Oh no, not Sorenson again, when my father told him. This circumstances of the stop for an alleged minor motor vehicle infraction — (a disputed broken taillight on a remote desert road at night) had all the familiar earmarks of a personality pattern of overaggressive stress reactions. Only this person was working a job that allowed him to carry and fire his gun, and put him in the path of innocent people on a regular basis. The defendant was one of my other kid brothers. He had been at a quarry, target shooting. Afterwards, he and Chester the family dog — an old German Shepard — went swimming in the quarry. Eric was wearing swim trunks and a holstered gun. After the deputy fired his gun until it was empty, Eric returned fire in self-defense. They were less than ten feet apart but neither and nothing was hit. They fired into the open desert. I was stunned and angry at my brother’s trial (years later), when the prosecutor called my 84-year-old physician-father to the stand and bullied him, asking, “Are you a Patriot?” “Of course I am” Dad answered, “aren’t you?” Similar bullying of my 82-year-old mother suggested another government agenda in this prosecution. Both my parents had no idea that “patriot” is slang in law-enforcement language for ‘militia’, nor did either of them register anything wrong with either term. There was no criminal connotation in their depression-era generational history165 that hunting for food or shooting for sport or carrying a copy of the U.S. Constitution, or criticizing government practices was considered subversive to the government. This was a ’50s red scare-style-trial examination — only my parents were clueless about what was being inferred to jurors. But to me, watching and hurting over the insulting prosecutor bullying, I prayed my mother would not have another stroke and my father, a nationally known physician, would not be further humiliated. To no avail. The special selection of this particular biased (nasty) judge, the re-assignment to this bullying prosecutor, and the daily dozens of uniformed law enforcement personnel across the back rows of the courtroom at trial, bore out what was confirm-able only years later. The allegation “patriot”166 explained a six-hour swat invasion of my parents at home — the confiscation of Dad’s deer hunting rifles and Grandpa’s Civil War flintlock with the broken hammer, the taking of my brother’s lead-bullet loading equipment, the copying of dozens of family photographs and the later harassment of the people in those family-reunion photographs.

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Prosecutors photo-ed each room and drew maps of the layout of my parents house and property. It was interesting in hindsight that I had to leave early to catch a flight at the family reunion, so I appeared in none of the prosecutor file photos, thus avoiding many of the law enforcement antics and harassment directed at my siblings. So here’s my photo — by London Times photographer Gaetan Cotton.

The Times investigative reporter, Grace Bradberry wrote the feature story investigating the ex wives of judges. Her feature story appeared during an ABA Conference in London.167 ‘Gotta love the British for their wry sense of timing and humor.’

6 165 Prior to 1793 when the Constitution was written, Americans were roughly called Federalist or Populist — or Nationalist and Patriots, depending on where they aligned themselves on the spectrum of mistrust for federal government. Federalist tended to be elitist, intellectual, aristocratic and rich. They were led by Alexander Hamilton; the other team was composed of largely small independent farmers and merchants, suspicious of a strong all-powerful central government (under Thomas Jefferson.) The first President George Washington was neither, but his Chief of War and Secretary of the Treasury was Alexander Hamilton, who had been his military aide in the Revolutionary War. Hamilton wanted a king, not a president. The U.S. Supreme Court came into being under Washington, but it had zero cases and no docket. Over the next decade, a political power struggle ensued in Congress over the role of the Court. 166 For reference, national “Patriot Day was always the second week in October until 9-11, when it was moved to September 11th each year. Massachusetts also celebrates Patriots Day each year in the spring to honor of the Battle of Lexington and Concord during the Revolutionary War. 167 The London Times 2 Cover Story, Monday July 24, 2000.

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(7) NEUTRAL EXPERTS IN COURT Some of my earliest law cases were court assignments in child abuse and neglect cases. I was handed some horrific cases that had already been through 3 or 4 child attorneys or guardians ad litem by the time I was assigned. Attorney Tom Bamberger, before he was named to the bench, rented me office space and coached me the finer points of how to be a good and caring lawyer. He also taught me how to bill. That was a heady experience — one day being a temporary law secretary — the next day making ten times the pay or more for doing the same thing I had done before (more or less), but going to court. In court, I watched one Concord child psychologist get appointed over and over as a supposedly neutral child expert for court. I found him to be biased, incompetent, (often he never met with either the parents or the child,) he made patently biased and incomplete recommendations and reports, and he testified in favor of the State position 100% of the time. He had an insider-lock on court appointments in Concord courts. I started talking to other child psychologist — to find alternatives. Hands down, that was Dr. Eric Mart — who opposed me in so many private cases in New Hampshire that I finally learned to hire him first. Growing up, I was one of ten children and was cool around kids — even the abused or abandoned and sick ones. Especially them. It incensed me that this Court expert made over $100,000 a year feeding the judge whatever the state prosecutors wanted him to say, and the judges had to realize that. That and the expert didn’t care about the children.

(8) CRONYISM WITH EXTRA PLAYERS Cronyism (receivers, trustees, auditors, masters, arbitrators, and others are each assigned some de facto power and authority belonging to the judge.) They are generally hired by the court and assigned the court’s authority to handle assets, property, make critical evaluations and recommendations, and pay themselves. Because their recommendations and acts are generally judge rubber-stamped, (as well as their fees), it’s just a delegation of power to sycophants.168 Sometimes they make an accounting of their fees — sometimes not. The Corn appointment in Roswell where a former magistrate told the judge he had not even decided his hourly rate, yet the Chavez County judge couldn’t wait to order payment without even an iota of an idea what that payment would be. The Dahar bill for liquidating assets in the Judge Fairbanks criminal theft case. Extraordinary.169 Out of a million dollars recovered, Judge Yakos approved $232,000 to the lawyer, who billed for family research of more than 24 hour days, seven days a week. I call this elastic time billing. The amount stolen by Judge Fairbanks from his client trust handing was never officially determined, but years later, the NH Senate investigation committee, seemed to think it was $10 to $13 million scammed from elderly clients. So after Dahar’s fees (out the liquidation of Fairbanks assets), some of the elderly victims got about 25 cents on the dollar — others got nothing. What’s new in court appointments in Massachusetts are PCs. Florida tried to pass it but fortunately that bill was vetoed. Parental Coordinators (“PC’s”) are supposedly the new trend — to help divorced parents coordinate their children. It seems they have suggested some crazy stuff, more or less assume control of your children, and insist on coerced mediation with abusive men. When I used to accept guardian ad litem appointments, I was dismayed at how many GAL and child-recommendors were not parents, and approached these cases from a nerdy analytical theoretical perspective. Growing up, neighborhood had other families with 10 to 13 children, yes, from all the same two parents. We did children (experienced, disciplined, and loved and guided them) as a way of life, so I believe this state/court trend to move away from practical and experienced experts to theoretical ones is a bad one with long-term negative social impacts. Because the court appointment system is often tainted and unreliable, the new Massachusetts style “helper” anointed by judges seems like another untested social experiment. 168 A synonym for sycophant is toad-eater. Ecarta World English Dictionary. 169 The Telegraph, Creditors Complain Bills to Liquidated Estate Were Excessive, February 5, 1994.

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I am impressed with the results of non-lawyer mediation and have been successful even when domestic violence was involved. I find that abusive spouses can and will co-op the litigation process if they are allowed to do so — and you can’t trust a violent perp to honor a mediation agreement without other court-ordered safeguards. It’s close to a clinical analysis process, and some cases are just not appropriate for mediation.170 Or, I suspect, for “PC” appointments. One mother received a nine-page proposed order from her PC and when Mom refused the conditions and terms, the judge not only screamed at her to make her accept but threatened her with jail and fined her $1,000 for refusing to stipulate.171

MORE CALIFORNIA CRONYISM One of the list serve I joined reports on these kinds of so-called neutral experts all over the country. One of the most notorious nationally reported judges172 was James Stewart — featured also in Karen Winner’s investigative report on Santa Clara family courts.173 This includes his conflicts of interest with the Director of Family Court Services. Each routinely uses the same so-called expert psychologist Terry Johnson for appointments, training seminars and to help the Director buy a vacation home. In return, Dr. Johnson hired the Director’s daughter, who also received many judge appointments. It was a closed loop with drastic and irreversible results for the children of outsiders based on economics for insiders. Call it a price war for child custody. On the other coast, in the clubby corridors of New York City courthouses an extraordinarily facile attorney Ravi Batra took fees from lawyers who sought to tap into his astonishing and lucrative network of judge-controlled court appointments. Whether the court appointments were for managing “assets, accounts and welfare for the elderly, young or of troubled companies” they always involved the unfettered management and expenditure of other people’s money — usually incompetent people who, because of age, illness, or disability, couldn’t check up or object to the attorney/ judge fleecing. Ravi also got appointments himself — more than 150 assignments worth over $500,000 in fees reported one study.

(9) PROBATE COURT APPOINTMENTS AND RUBBER-STAMPING THE OVER-BILLING

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Ravi’s tools of his trade are fostering cozy relationships with judges and those who appointed them, “schmoozing, flattery, mutual back-scratching”, lavish dinners and honorary events at his home and restaurants. Ravi organized dinners to honor the judges. He even planned a ‘Judge Birthday Party’ and added a new staffer whose only duty was to “make introductions.” He also got Ravi appointed to the Democratic screening panel for judges.

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Ravi Batra got awarded extraordinarily high fees, and in one case (his own) the judge (the same judge who was quietly making lucrative special guardian appointments to him) also awarded him $225,000 to settle his own case. He called this extra-ordinary relationship with the judge a collegial one. The judge (Manhattan Supreme Court Justice Diane Lebodeff) said the awards were on the merits with no favors, and she didn’t remember, but felt no obligation to disclose to the other side that she was, throughout their case, dining with and making guardian appointments to their opponent. Attorney Batra had filed a personal injury suit — for $80 million dollars — against a swivel chair manufacturer after he fell out of it at his office. It makes quite an apropos mental picture. That case was assigned to Judge Lebodeff, who became friendly with Batra while she presided over his case. She made several court appointments to him. Those

170 There are other models — therapeutic justice for example. I also use Quaker and Navajo mediation techniques involving extended family sessions. 171 http://www.afccnet.org/conferences/afcc_conferences.asp 172 National Coalition for Family Justice of California, Inc. announcement, May 17, 2001, www.nationalcoalition.net. 173 Investigative reporter Karen Winner, “Findings on Judge James Stewart and Court-Referred Personnel at the Family Law Division of Superior Court in Santa Clara County, California, 2001.

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appointment lead to a state investigation because Batra charged a 94-year old Alzheimer’s patient $400/hour to determine that she needed a financial guardian — (him, of course). The judge accommodated. He charged $100 a phone call (80 short calls — no subject matter listed), and took $85,000 from the woman’s assets as his fee.174 Now, just because you don’t live on one of the coasts, don’t think this doesn’t happen everywhere — especially the estate management cases for elderly and incapacitated people. It is largely unregulated in state courts, and the judgeattorney collusion and abuse is rampant. Even if investigated, nothing happens. The clients get swindled, and most are too incompetent to know. Although not a special-appointment, this case demonstrates the practice — Judge Patricia Coffey’s husband, former attorney John Coffey was disbarred for taking his client’s oceanfront home on Rye Beach. First he claimed it was earned by fees for the old woman’s estate planning and other claims. Next he said he was unaware of his client’s deteriorating condition (dementia or Alzheimer’s) and that the client wanted him to take the property as a gift along with his fees.175 I tried to monitor this probate case, but found it kept changing courthouses and docket numbers. One hearing moved from the seacoast to Nashua and I sat in the front row, wearing a visible red tailored coat. Judge Linda Dalianis entered and did a double take — said nothing, but registered that I was observing. There were several minutes of confusion, then she called the case and announced a postponement — no future date. The case transferred again. Very amorphous. Most major law firms consider these incompetent person guardian appointments to be low-handing-fruit. They depend on court appointments for trust management to bring in substantial bread-and-butter funds to cover overhead — millions each year. In New Hampshire, the Chief Judge of the State Supreme Court, David Brock acknowledged as much at a legislature committee hearing — that these appointments were not subject to audits or oversight. Inflated fiduciary billing or charging for unnecessary work is a rampant in the court’s patronage system, where lawyers “squeeze money out of the estates of people who die without a will or businesses in receiverships.”176 (from a report by N.Y. Special Investigative General Sherrill Spatz.) Even with confirmation of the financial abuses (no one in court wants to call it theft by deceptive taking or embezzlement by a fiduciary even though that’s what it is) the courts not only lacks teeth to cure the problem, but they encourage it. They may suggest some rule changes for future rules of behavior — but nothing for the victims and no charges for the lawyers or (God forbid!) discipline or removal of the judges making the assignments and authorizing the payments.177 That’s just court business. Everyone knows that the Department of Defense grossly over bills for weapons and toilet seats going to Afghanistan or Iraq. Military contractor Northrup Grumman alone charged for 29,401 hours of work in excess of 24-hours a day178 That comes to 600 days where two contractors claimed to work more than 24 hours each day each? Was this the elastic time Dahar trick?

(10) PRIVATE JUDGES — APPOINTMENTS OF RETIRED JUDGES I’m surprised at how often trial court judges pass off their workloads. There seems to be a big movement to sending a case out to private judges to decide. This is a bad idea all the way around. I knew it in my cases — but the private judges were incompetent, disabled, biased, deaf, not proficient in the law and sleepy. And all were expensive. They all also used to sit with my ex on the state supreme court and were conflicted. Nevertheless, I got the privilege of paying them $350 an hour for — nothing but a waste of time. 174 Kevin Flynn and Andy Newman, Cozying Up to Judges and Reaping Opportunity in Brooklyn Courthouse, A1, A21, NYTimes, November 11, 2003. 175 New Hampshire Supreme Court, Coffey’s Case LD-2003-011 (2005). 176 State report of a New York blue-ribbon panel investigation on judicial patronage, New York Post, from an article by Murray Weiss and Maggie Haberman, “State Report To Slam Judges Over Patronage”, December 1, 2001. http://nypost.com/news/regionalnews/35662.htm 177 Id. 178 Reported by POGO, (Project on Government Oversight, a independent watchdog organization), AllGov.com, “DynCorp and Northrop Suckered Pentagon Into Paying Employees more than 24 Hours a Day for Narco-Terrorism Programs”, May 21, 2014.

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My little experiences with private judges are piss-ant compared to what’s happening around the rest of the country. Private judges are BIG. Expensive, corrupted, and seem to be replacing what real judges are supposed to be doing for free. They are called rent-a-judge. If you are a ‘poor’ litigant — you may not be able to pay for what the ‘real’ judge is ordering you to do. It’s a modification of double-dipping — after retirement, judges get these lucrative assignments from sitting judges, where they rack in another $150 to $500/hour or more. The hours they charge for are often much more than whatever the meeting, arbitration, negotiation, or substitute trial time. They prep. They send questionnaires. The want documents and elaborate summaries to read in advance. They want to know who your witnesses are, and what they are going to say. It makes a huge double-dip bill. Some of them will have a lot of prestige — former Supremes, for example. What they may not have — 1. Any experience in this area of law — real estate or pharmaceuticals, or utilities or divorce. Remember the sleepy one who wanted to treat ever case like a 1960s broken arm case? 2. They don’t follow court rules — for procedure, for evidence, for due process — nada. There is no record, and if the parties have an attorney, they may not even be allowed to attend — bad news when you don’t know what the players are doing in your case. 3. The industry is unlicensed — lots of cronyism, payoffs, gifts, trips, and ol’boy back scratching among some of the industry-players. 4. They like to move in big chunks to get to settlement, and the attorneys take big chunks, too. (40%, plus more for ‘expenses’) For example in California, statute limits attorney fees to 25%, but they take 40% and there’s no way to get an accounting or get the money back short of threatening to sue your lawyer. 5. There are no laws preventing these judges from accepting gifts, retainers — no ethics rules about recusal and conflict of interest. It’s an unlicensed, unregulated, Insider-driven industry — out to make money off people in court. 6. Some retired judges go on retainer or have contracts to sit regularly for large corporate clients. “They get paid monthly retainers. Sometimes they give volume discounts.”179 That means the same mediator or arbitrator works for the corporation — over and over. And that’s not a pre-disposition?

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7. The story of the Erin Brockovich/Ed Masury law firm representing a town full of families poisoned by Chromium 6 in the town water was one of these mega-private judge arbitrations that has a shocking number of conflicts of interest, abuse of clients, delayed and reduced payouts. It’s nothing like the movie.

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8. If you are considering a class action, — like the toxic tort case in the movie — stop and read the online article in the footnotes. Everyone — plaintiffs, the judge panel, the defense attorneys — all seem to screw the little people and this kind of private judge panel allows them to do that. It sounds unconscionable. A case in court couldn’t have the due process and other ethics problems and rip-offs that happened in the PG&E $333 million dollar settlement. 9. The conglomerate arbitration firm in the west is JAMS — a 300-judge/arbitrator firm that is big on luxuries, perks, exotic trips, extravagant gifts. The investigative reporter also described industrial “snooping” “racketeering” and “collusion among judges and attorneys” throughout Los Angeles County to make pressure to settle. She describes slapp suits and how they legally play dirty. 10. JAMS provided three judges for the PG&G utility case — two had clear blatant conflicts of interest — but that doesn’t matter in private arbitration. There were suits and counter-suits, collusion and racketeering.

(11) FOJ IS FRIENDS OF JUDGES The last example (we’re running out of room in this section for assembling the players, but you’ll see that in court too — you look around and wonder who are all these people involved in your case?) but there are thousands more examples of

179 Facts in this section were provided by investigative reporter Kathleen Sharp, “Erin Brockovich: the Real Story,” http://archive.salon.com/ent/ feature/2000/04/14/sharp/index2.html

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judicial patronage and lucrative assignments for friends of judges (hereinafter, “FOJ”) including dozens more scattered throughout this book — EAJA free litigation. Millions in funds Congress voted for seniors, veterans and small business under the Equal Access to Justice Act (EAJA) got diverted to providing free litigation attorney-fees for 20 environmental groups.180 The government just “didn’t keep track” of “a free-flowing spigot” that allowed 20 corporations to siphon off millions in lawyer-reimbursement funds intended to help the most vulnerable in our society operate small business — namely seniors and veterans. The 20 environmental organizations found the trough to carry out free environmental-friendly litigation and they filed multiple lawsuits — when judges just routinely stamped approval of excessive lawyer fees and extra costs — including cases where the corporations involved were not the groups authorized or intended to receive federal reimbursement, — and where the attorney fees were grossly excessive to the statutory cap. The Act capped lawyer billing at $125/hour, but judges evaded enforcing the cap, approving so-called expert or specialty billing from $157/hour to $500/hour or more.181 The GAO just didn’t keep track, and has no idea how many millions got diverted to funding the environmental group cases on procedural issues — brought by diversion of taxpayers dollars. It was a wonder at the time where all that environmental litigation money was coming from? Records indicate the small farmers, ranchers, veterans, and retired senior assistance funds were routinely diverted to environmental organizations. 64% of the cost of bringing new cases in court came from the dedicated fund. Approximately $5.8 million dollars of litigation fees out of a total of $9.1 million dollars in the fund were spent by only 20 environmental groups.182 Only one-third of the money appropriated went to the designated beneficiaries — if that. Instead of the thousands of individuals intended to be helped by the program —20 groups scarfed up a mean amount of $300,000 per group.

(12) WHO ELSE IS NOT INVITED TO COURT — THE GADFLY This is a trick to keep someone out of court — so when judges are setting up the players in a case, who they do not want in the courtroom is The Gadfly. I’ve dropped a couple gadfly stories, but never really explained what gadflies are and what they do in our legal society. They are kind of like Robin Hood in court.

FIRST, LET ME INTRODUCE A GADFLY. WHAT DOES A GADFLY LOOK AND SOUND LIKE? I only know two gadflies — men who are natural in the law. They understand and are attracted to it like bees to honey. Both are highly intelligent, better versed in law than any lawyer or judge I have ever met, and both men are out-of-box thinkers who take on bully-boy cases for little guys being figuratively killed in court. The name ‘gadfly’ suggests they are flighty or maybe small — by my experience is they are neither, and that lawyers adopt the misnomer to suggest an irritating but inferior entity. It’s a way of ridiculing non-insiders — because they will first ridicule anyone they are afraid of. Gadfly Number One. My younger brother Greg is a sweetheart of a man — responding to damsels and ranchers and others in distress. He helps the kind of people that lawyers won’t take as clients, even if they could afford the fees (which they cannot). He met his wife that way — working as a paralegal in Arizona, he helped her write papers she filed in her earlier divorce case. At that time, Arizona was just trying to close the constitutional and statutory loopholes that allowed lay people to assist others in court — for both writing briefs and for standing up and arguing the case in the

180 Cheyenne, Wyoming attorney Karen Budd-Falen did the initial ground-breaking research on the attorney-fee overpayment and the sweetheart settlement deals for 20 corporate/environmental plaintiff groups. 181 From two studies: by Notre Dame Law School and the Government Accountability Office (GAO), published in the Journal of Legislation, pp 36-41 and reprinted in New Mexico Stockman, June 2012, pp.12-15. 182 Id at 14.

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courtroom.183 He remains grandfathered in, but also has become a bar target. He is tall and unassuming, and his cowboy look downplays his considerable intellect.

Morris Dees, the Civil Rights lawyer, wrote how he was moved to change careers after reading Clarence Darrow’s biography. His understanding comes from the following quote, which works here in talking about the gadflies I know — “as a young boy, “not only could I put myself in the other person’s place, but I could not avoid doing so. My sympathies always went out to the weak, the suffering, and the poor. Realizing their sorrows, I tried to relieve them in order that I might be relieved. I had a thoroughly independent, perhaps individual, way of looking at things, and was never influenced by the views of others unless I could be convinced that they were nearly right. I had little respect for the opinion of the crowd. My instinct was to doubt the majority view.” Excerpt from, My Life Story, Clarence Darrow

My brother Greg’s general and specific knowledge of law (self-taught) is massive and his broad outlook on the practice of law stunning. It’s an idealistic lawyer view of the practice of law.184 — I took him along with me to my first Constitutional law class at McGeorge Law School — taught by Professor Anthony Kennedy — later to become a U.S. Supreme Court judge. Professor Kennedy was sitting on the U.S. Ninth Circuit Court of Appeals, and he began that first con-law class with an open-ended question about Marbury v. Madison — the seminal case on Chief Judge John Marshall’s 1803 usurpation of Constitutional power from the other two branches of federal government. The coup d’état of judges.

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There were approximately 140 students. I was the oldest. No one said a word or raised a hand. We were terrified to look stupid. Professor Kennedy naturally commanded a lot respect, but this was a matter of an opening salvo — first day, new classmates, new professor, first question. Out of nowhere, Judge Kennedy pointed at my brother Greg, sitting next to me in the top tier of the auditorium, and all the rest of the room relaxed a little in relief not to be the one on the hot seat.

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Greg’s answer was relaxed and amazing — he just talked. He spoke about the factual background, the history and the political implications of this first declaration that judges were the final word in American politics. Professor Kennedy seemed delighted, and asked more questions — the two bantered back and forth. I had no idea my kid brother was that enlightened because I mostly used him to haul boxes and fix things. I had not even read the case yet — along with most of the class. Greg should have been in my place as the law student, and I’m still ashamed I didn’t somehow make that happen. For weeks afterwards, Professor Kennedy peered into the top row and called on whatever hapless man was sitting in that same seat — a futile effort to repeat the original class exchange. I don’t know of anyone in my class that read American law for recreation — and just assimilated the background and meaning of cases and the Constitution into the context of two hundred years of change up to the present. It’s just something Greg liked to do, and the pity is the state of law is such that those in charge of being court doorkeepers are threatened by someone like him. Here’s one example of how my kid brother acts — My brother is innocuous looking. No one would guess that this longhaired Harley motorcycle cowboy dude has a gentle nature and a terrific mind. Once, I got tricked into leaving my house by Chuck’s lawyer, who called an asked me to come in by appointment to view documents at his office. When I got to his office, Tony Tarbell was insistent that I not to leave until I checked in with him. There were a lot of documents. Chuck came during that time to rob my home. He didn’t know my 6'4" kid brother had flown in the night before and was sitting the upstairs window watching as Chuck drove down the long remote driveway, and watching as two lawyers tried to open all the doors and windows on the back side of the house. I had changed all the locks after Chuck departed. Greg was non-violent in the face of the attack. That’s his style. No theatrics. No punches.

183 The New Hampshire bar did the same type of legislation a decade later — enforcing the lawyer monopoly in court. I suspect other states responded to the unified bar movement of the 1980s and ’90s to eliminate all outside competition for lawyers and to get rid of free service and to stabilize hundred dollar/hourly rates for attorney legal services. 184 Morris Dees wrote about this kind of passion for justice in his book A Lawyer’s Journey. Dees, also a late-comer to law practice, was a successful business/publisher and only switched his life-work to law after being inspired by Clarence Darrow’s My Life Story, first published in 1934. The same idea also resonated with me, and is worth a segue to present to the reader a different approach to practicing law; a different motivation to practice, that seems to have little if any place in contemporary bar monopolies and ol’boy court practices. I found it however in the gadflies.

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When Chuck and Susanna finished trying all the house and garage doors in front and sides, they headed out back where there were six sets of French doors overlooking the river. Greg picked up the phone and dialed 911, then went outside to wait for the police and to remove their car keys. Chuck had left the car running with both doors open — apparently planning a quick get-away. Greg put Chuck’s car keys in his blue-jean pocket and stood still, waiting with his arms cross across his chest for the police to arrive. The couple was frantic to leave and attacked him. Susanna clawed his face like a wildcat, he said later. She held on to his ponytail so Chuck, a man of small stature and dressed in pointy-toed cowboy boots, could kick Greg from behind. Susanna was the buxom hot-ticket woman lawyer my ex liked to have carry his briefcase and drive him to court. She liked to wear revealing tops, and fondle herself to elevate what she called the merchandise. It cost me several thousands of dollars to hire an attorney to get criminal assault charges against Greg dropped after that incident, as the judge was certainly more inclined to pretend to believe two lawyers, (one former Supreme court judge and U.S. Congressman and one an attorney-girl-sidekick) — even if those same two lawyers could not explain why they were trespassing and trying to enter my house illegally after having arranged in advance for me to be away. Or why Chuck felt he needed to bring a gun along. That’s how Greg acts — he’s a smart, natural lawyer, self-educated, brighter than any lawyer I know and cool under all kinds of pressure. Gadfly Number Two. Theodore Kamasinski approached my brother after my divorce default was published in the paper, and he filled in after Greg went back home to his wife. I was sorry to see him go, not just because I felt safer with Greg and his wife inside that big twenty-five room house, but because he had a wry and practical perspective, unclouded by the way insider-lawyers think. He lacks that inflated ego of most lawyers. He wasn’t devious, he was big and thoughtful and gentle in a cowboy kind of way. Legally, he was thorough, but just talked like a normal human being — not someone all caught up in himself. He loves the law — especially old law, common law, English law and American history. Theo on the other hand, out-did everyone in legal vocabulary and esoteric law concepts; he was a computer programmer who guarded his soft-ware legal research program (named ISYS) zealously. It was hard to determine where his brain left off and the software began. His briefs were consistently amazing. He could act courtly, and ‘out-court’ he could oppose other lawyers in an Inns of Court185 way of talking, which lawyers use to impress people and show how cultured and aristocratic they are. Lawyers and judges talk that way to intimidate and cut off questions. Theo could do that fancydancy speech right up until his Brooklyn temper went off, when he could out-screech with the best out there. After my first default trial, Greg was living overseas. I was now defaulted, with my bank accounts attached, and I was a defendant in about 40 cases stemming from this divorce. I had two wonderful loyal staff that carried me though some rough emotional, financial, and physically stressful times. They were unpaid (for years) because I had no money to pay them. I had no law practice, and the only cases I was defending were my own. I was a fulltime law practice — without any paying clients. Theo began haunting us — practically a nuisance — offering to help. Theodore Kamasinski, a legal savant, for about a decade dogged the New Hampshire court system — targeting judges and bar attorneys. He did this by offering to help represent a number of ex wives of judges and others he thought worthy of his help. Theo’s moon-face and bald palate became synonymous with his extraordinary research and writing skills. He was prolific in an old fashioned courtly way. I think he was Jewish, but I’m not sure. He was not religious. New Hampshire was a continuation of what had been for him a life-time commitment to expose legal and law enforcement corruption — fueled by early exploits in New York City, where he first worked magic for law enforcement with tiny electronic listening devices. He worked with Serpico and claimed he micro-wired the Mayflower Madam operations for a sting. Theo had so many stories that no one believed him. It was like the movie — Big Fish — where — (go rent the movie — reminds me of Theo) — where the old man (Albert Finney) had so many outrageous experience stories as a traveling salesman that no one, including his estranged son, believed him. Until he died, and all the people from those stories showed up for his funeral. The stories were true. Mostly. Largely. Theo did wire Jackie Kennedy’s bra for the White House television tour. I read the newspaper story. He did work with the Happy Hooker wiretapping, and for a Serpico sting operation. He was crazy for tiny listening devices.

185 An invitation-only lawyers club with roots in English 12th Century aristocracy. Belonging makes them “collegial” with other judges and lawyers.

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The standard Ol’boy M.O.186 was to ridicule him — ridicule me —and ridicule the rest of us as losers or whatever label they had handy. It was all designed to put down and publicly humiliate. It’s pretty childish, but you don’t realize that at the time. Their language — especially the judge language — is designed to hurt and silence you. But that’s all they can do — because Gadflies are immune to the threat of control (disbarment) by the Professional Conduct Committee. They are not lawyers, so judges can’t use the PCC to punish like they do for others (like me) who break out. Theo started popping up in a lot of cases. He was very persistent. And he was good. He knew the law better than the Ol’boys in a small state. He knew people. He wrote brilliantly. He won a few motions and cases, he made the Ol’Boys sweat and worry; he pushed their secret buttons; he knew too much; and he made a lot of trouble in every case he appeared.187 These cases all had sneaky judge tricks and Insider favors. Every single one. It was just a matter of figuring it out; reading the files; listening to the audios. Every one had Insider corruption. I suspect the following: On their own, the Ol’Boys couldn’t win a single case in this book. They needed the extra help of cheating judges to win against the people they sue. Without that extra help, and with a level playing field, Ol’boys would lose every case. Ol’boys have become empowered, not because they are good at law — but because they know they have the secret weight of compliant judges. Theo was appearing as counsel under that old common law right (1726) from the Province of New Hampshire. I talked about it in the first chapter. It became a rule, then a state statute, but the right long preceded the statute. So if you file an appearance form along with an affidavit that you have good character, anyone can represent another person without being a lawyer in New Hampshire. The judges and bar have targeted this affidavit of good character to do an invasive life-long review of every person who seeks to help someone else in court. That’s their current ammo of choice.

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The N.H. bar bosses were pumped (this was a testosterone war) to vilify and stop Theo — I followed him around in several other cases — Candice McMinn’s real estate eminent domain taking case was one (it’s in the next chapter) — and I am convinced that not only is Theo brilliant, he and his West-based, beta, computer search engine (ISYS) — was the best search-engine I’d ever come across. He also had programming skills and it was hard to know where the machine left off and Theo’s legal experiences took over. His stories of working for some of the top lawyers in the country were over the top (more Big Fish) — ’til I accompanied him to New York, Boston, and Philadelphia to meet with some of these experts and top legal minds. He knew Shannon Pratt, and Ike Williams, and Joe Steinfeld and Dr. Edward Hallowell (the cognitive health doctor/best-selling writer.) He arranged some consultation appointments with top-national experts. Theo also had a brief bank of work he had done for lawyers all over the country — a collection of legal history workproduct that saved thousands of hours of briefing and writing time. It was amazingly good.

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No joke — Theo had his moments188 but the courts are missing out by not having this man — both these gadflies — in the courtroom representing people the way the legal system should operate. Instead, they are afraid — the lawyers and judge are afraid — not because the gadflies are illegal — but because they are smart, able, and don’t go along with the insider-system. Oftentimes, the Ol’Boys don’t win cases on their own steam — they have to have judge help to win. On a fair playing field, they would lose. Judges have reason to be afraid — to give this type of person credibility and recognition in court — means the illegal insider system will be exposed — and will fail. The whole issue of “professional standards” and “protecting the public” — are commercial sound bytes — bar excuses for maintaining and protecting the monopoly. It’s why judges finally hired an full-time NPR media/crisis communications specialist. How Americans came to the place of not being able to trust the professionals within the legal system. This analysis requires some out-of-box thinking. Their insider system can be improved by outsider options. Gadflies are a start. So those are my two gadflies — for whom I am grateful. That the bar and judges have determined to rid courts of men like these — gallant, smart, fearless and free, and who go around like Robin Hood helping the little people because it comes naturally to them to do so. Bar/judge retaliation against gadflies is a crime against society. 186 M.O. is modus operendi = method of operation. 187 Remember the Jack Middleton PCC complaint? 188 Jeffrey Toobin, The Judge-Hater, New Yorker Magazine, June 12, 2000, page 49.

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Scrum Buddies. In New Hampshire, I experienced a court phenomenon that seems to be physically and mentally male oriented — where ol’boys bunched together in case after case, and pile on — to ravage an opponent who is obviously weaker, poorer, less gifted and without a lawyer. They are judge/lawyer-scrum-bullies. I never saw them scrum against someone like Jack or the big firms like Wadleigh Starr or Orr and Reno. No, they don’t pick on people their own size — or OL’BOY INSIDERS. It always felt like they were trying to protect their territory — but why would a court be ‘their territory’? Like they owned it. But it was. These Insider men join together to bully their opponents — mostly women, but some outsider, disabled, and perceived poorer and weaker men who definitely weren’t lawyers. It is frequently vicious and personal — because it is inspired by brain-chemistry-surges, the same as gladiator fighting would be. For them, it is part of the game. Some were fond of high-fives after they won anything. I expect it is similar to the hormone-overload of avenging teenaged boys or maybe young military men in combat. The biggest scrum I saw across the bar was when they united across several courts and counties against more , the Gadfly. He was too effective against them; he helped too many outsider-underdogs; and mostly, Theo was making hotshot attorneys and judges look bad. And he was multiplying into too many cases. There were a lot of underdogs in New Hampshire courts at the time, and Theo had the energy of five or maybe ten ol’boys in terms of producing documents for court. And the worst thing is Theo ran around offering to help people the Ol’Boys were savaging in court. For free. There was already an uprising of sorts afoot — about court corruption, and judges began to be more afraid than they usually are by nature. I began testifying openly about judicial misconduct at the Legislature. I had already contacted the Bar President, the chief court administrator-judge, the Governor, the FBI, the U.S. Attorney, and some reporters and newspaper editors. The two women that stayed on with me (they just refused to leave, whether I could pay them or not) — together we began to give little gracious luncheons in my backyard for legislators — to educate members of the house judiciary committee and others politicians who were questioning the power of judges, but didn’t know how or where to start. One at a time. We made up packets of information, and Jennifer, Karen and I would ask each other questions to educate gently — these well-meaning non-lawyers about the problems of judges. We gave them courage through information — to fight. Judges had been flexing their political muscles for about a decade — the Claremont school funding case wasn’t the first, but it was an enormous thorn in the side of the statehouse. It was a sample of setting radical public policy by judicial fiat. Judge Fairbanks had been murdered in a hotel in Las Vegas — strange circumstances of tied hands and a plastic bag. His victims were impatient to recover some money — most of the money recovered went to the trustee appointed by the court. There were questions — many about how so many people in authority ignored what was happening with Fairbanks for a decade. It wasn’t settled, even though it was supposedly settled. My divorce treatment was being treated as a joke by court, and then the media. By the time the Thayer divorce surfaced, I wasn’t quite as ridiculous. There were similarities. It’s harder to discredit two women, than one. Judith had been President of the State Board of Education; I had been on City Council and television. Ol’boys with their in-hand newspaper editors, resorted to gender-based jokes and female insults, to discredit what us. Time-worn authoritarian-male tactics. Theo offered to help each of us, and generally, he was good. I began to learn about other people who also suffered greatly at the hands of corrupted judges. Until Attorney Linda Kennedy showed up from Virginia one weekend, I thought I was the only one — the only person — the only lawyer seeing this pattern of judicial cronyism and cover-up. I re-connected stronger with my faith and thought I felt alone, I wasn’t. More of people came forward. It was heartbreaking to hear their stories. There were so many. And each of us had thought we were alone — the first to wrangle with judge corruption in a court case. The legislature became empowered — caught fire. And Theo was in the thick of it — calling and networking with media, national experts, legislators, and pushing these scrum-cases where Ol’boy bully lawyers had expected to prance over the court-finish line without real resistance. The court appointment system was enriching ol’boys one case at a time. Each case, the judge was working to bring others on board to help Insiders win. They are already mentioned in this book. You will hear more. This is just what happened in little Concord, New Hampshire, (we used to call it The City in a Coma) and I had no idea it was occurring everywhere.

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The Ol’boys tag teamed their efforts and conspired a campaign to rid the state of Theo’s help for each opponent — once and for all. That included for Judith Thayer, Candice McMinn, and dozens of others (including me) who questioned the propriety of special assignments and biased handling and the disastrous winner-take-all results in our cases. I think we all appreciated Theo’s help. Not only because we were without a lawyer who would resist, but we were each grossly outnumbered by ol’boys. It was a relief to get intelligent legal help. The honcho lie. As a perverse hobby, Theo also sought out cases involving the Big Boys in his quest to expose high levels of court corruption. Intellectually, he enjoyed pitting his brain against theirs, and he had, in my opinion, a vastly superior brain. I suspect he is some kind of a savant, just as my brother must be. So the judges unleveled the playing field, in order to protect their own reputations along with other Big Boys. One way or another, they retaliated against him over and over, and it became a court testosterone war in New Hampshire. Theo brought out their worst tricks — judges were blatant in their corruption and ways of covering over bad behavior because they had scrambled to catch up and reassert their authority and winning. They were forced to use their Insider bar muscle to drive him out of every court. Meanwhile, Theo targeted the National Secretary of the American Bar Association Jack Middleton — a longtime leader in the state legal system. Theo began helping a disabled man who had been fleeced of his personal injury award by his lawyer.189 That lawyer (Paul Cox) was represented by Jack Middleton in a number of later actions to recover the money. The ol’boys pulled out the stops at all levels, and the mentally disabled man was broke, when Theo heard and offered help. I don’t know if the man ever recovered any of his money, but the case turned into a wild ride on both sides. Theo found evidence that Jack Middleton had lied in a Supreme Court oral argument — by saying he was unaware the client was mentally impaired. That kind of statement is called ‘a smoking gun.’ Lawyers love to find something like that to focus on. Theo ordered the court audio record and made hundreds of CD-ROM copies of the Middleton lie and mailed them to American Bar Association Officers across the country just before their annual national meeting. It was to embarrass Middleton, of course, who was arrogant. When asked by Judge Broderick, Middleton said he was unaware the client was mentally handicapped.190 Yet the money involved was a personal injury award for an injury that made the man mentally handicapped. Theo pushed Middleton into the vortex of attorney ethics regulation. A dark murky spiraling hole from which almost no member can climb out. Middleton was lucky. One of the top judges threw him a line, and he finally escaped. Middleton later complained bitterly about the state Professional Conduct Committee (he called them “Regulators.”) He said New Hampshire PCC prosecutors were the “harshest of all regulators” and that the PCC is a parallel track for attorney fee disputes, requiring two sets of defense.

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He’s right, in part. I just think he was surprised to be caught in the embrace.

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I on the other hand had been through almost two-dozen of these embraces. The trouble is, the Ethics Committee embrace is usually reserved for whistleblowers and other assorted non-insiders attorneys — not for top tier bar lawyers. Ol’Boys are usually protected from this whole insider process — by the early protection coverage (provided to them through 189 The underlying case developed over client Richard Avrill’s worker’s comp claim. Avrill was represented by Attorney Cox. It was a fee dispute with a claim of undue influence over an agreement signed in 1989. Cox sued his client. He had billed $70,000 monthly totals, and at the end took a lump sum of over $115,000. Judge Perkins ordered the legal fees, but for the later lawsuit for overcharging (NH Supreme Court, Docket No. 97-819) the notorious Judge Gray was presiding. Each case involved was fought by the insiders to the death — lower court, appeals court, conduct committee, Supreme Court. It was a major financial effort for Avery, who ended up more or less broke and destitute from the whole legal process. That’s when Theo the Gadfly began to help out. 190 The next case was a professional conduct complaint against Paul Cox, who was represented by honcho attorney Jack Middleton, PCC file 97-117. The disciplinary action also went up on appeal, and it was during oral argument (Docket 97-819, Richard Avrill v. Paul Cox,) that the overzealous defense attorney made a number of misrepresentations to the judges in his oral arguments. (Transcript March 9, 1999, Track 2.) That resulted in an ethics complaint against him for lack of candor to a tribunal. That’s the nice way of saying “lying”. Again, note this is the same handling as in the Martha Stewart ‘obstruction’ charge, but a different venue and reverse posture, (therefore a different but still unreliable outcome). There were other allegations of misrepresentation to the court and the PCC. The gadfly became involved on behalf of Avrill in 1999 — after over a decade of self-serving acts by the lawyer-judge professionals involved — that seemed to put the lawyer’s interests before that of the client. So it was a bar-ethics “crime” warranting excommunication in my ethics case, but no one noticed it in the Cox-Middleton debacle. Here the client was mentally impaired, and he lost all of his injury award. It’s a fascinating transcript of the Supreme Court’s take on the PCC function (skirting their own duty to identify, remedy and supervise attorneys to protect a vulnerable client.)

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bar and judge appointments) and by the slippery language of over-broad rules that get manipulated in these matters to mean any infraction the bar/judges want it to mean. Now normally, a complaint against someone of Middleton’s national standing would be ignored, dismissed, or black-holed early in the process. Likely someone from Middleton’s firm volunteers on the committee. But remember, this complaint wasn’t filed by the judges or the club members. It was filed by Theo the Gadfly, using the public process that aggrieved ordinary people can find online at the court website. That on-line system though, is not supposed to work out for ordinary people, especially against big fish. But Theo was persistent. He knew the cracks and crevices that the committee members routinely used to let big fish escape public-complaint hooks. Theo went public in advance of filing. (Because once an ethics complaint is filed, the complainant finds his lips are sealed. The rules forbid disclosure of a judge-ethics complaint after filing with harsh criminal punishments for talking about it after filing, all the way up until it is dismissed or punished.) All that spotlight marketing of an attorney ethics (or judge ethics) complaint has to be coordinated in advance of filing. Then, being Theo, he stayed on top of his Middleton complaint, and it was in the end forced to a bar-peer trial. Peer ethics trials are not widely understood, even by the Defendants. The whole two-dozen or so complaints, I (and my attorneys when I cajoled someone into representing me) failed to recognize that these are inquisitional courts (not Constitutional courts) so often the same peer investigator will be the prosecutor and sometimes judge. There are lots of other inquisitional similarities. Special judge appointments for trial will be hand-picked from a cadre of retired special judges. This is the new hybrid bar-court secret trial system, evolved since the ’80s take-over of the American law-institution. Filing a judicial conduct or attorney conduct complaint begins one of two insider peer-review processes. They are both inquisitional processes, performed by a modern day version of brown-robed Dominicans.191 The arrangement is for lawyer-peers to be first inquisitional investigators, then the inquisitional prosecutors, and finally, (sometimes) the inquisitional judges. The in-house process is deliberately designed to create public perception that muddles the brownrobe process with the black-robed one.192 To insiders and outsiders alike, those caught in a brown-robe process think it is a black-robe process, albeit a very special one. The color of the robes is in theory and practice, is very different from that of the other.193 But this is hidden. One reflects American standards established to protect individuals charged with crimes by a process of democratic justice. The other does not. It is the old inquisitional method but without the rack.194 But Theo made sure there was enough public 191 The Dominican Order was formed in the 12th Century and was the arm of the Church responsible for conducting inquisitional investigations and trials throughout Europe to identify and punish heretics. Especially in France, the Roman Church was finding a lot of competition from other religions. (This is a jealous god.) At the time of the Inquisition, the Church was the universally established legal authority, as well as the universal religious authority over the whole civilized Roman World. Everyone else in the World was a heathen. The church-domination was later challenged and changed by Henry, in pursuit of multiple wives. Henry’s system became the early foundation of common law. So it is funny how a 1980 modern judge (like Chuck and his early court-rule-writing task) picked and chose how to try their own members using a half-breed inquisitional court. One that appears on the surface to look like a Constitutional American court, but in substantive operation, adopted many special inquisitional characteristics. 192 In two of my inquisitional trial cases, the multi-roled inquisitors were specially named peers and retired judges known for compliance, and selected by a disqualified Chieftain. All the judge players were legally technically disqualified from participating under Constitutional and ethics provisions, but they did anyway. One sanctimoniously promised to give me the appearance of justice. 193 Think of it as the difference between a Dominican and a Jesuit. The Dominican Order was founded in the 12th Century Dark Ages, Jesuits in the 16th Century Enlightenment Period. Both represent the two Church arms of religion and law. American law is unique from both these arms. (It based more on the French model of democratic law.)

Modernly, vestiges of old Roman Church authority in law in America, can be found in administrative courts, and in this 1980 Bar/judge construct for their own internal disciplinary system. That’s why I believe the bar professional ethics system is illegitimate in America. Yes, that system works in Rome, and Rome also has the Code of Canon Law as its legal system. The application of the Code of Canon Law in U.S. courts is roughly analogous to trying to practice the code of Sharia law in American courts. Or the Napoleonic Code of France. (Louisiana has this.) They’re not American.

If it’s not part of our Constitutionally-established legal system, then outside law systems have no legitimate controlling authority. So if judges and politicians want to make changes, for example, to make judges the new controlling authority in America, — then they can go get themselves a U.S. Constitutional Amendment. Those are the rules established — for everyone equally. I for one don’t think making the judges supreme across the land will ever fly in a popular election. That’s the problem with Marbury versus Madison — it wasn’t a Constitutional amendment. It was a political fiat. A game of bluff where a brand-new one-day old President backed down, and the judges won the staring contest.

194 The sections on Puritan and Witchcraft trials deal with the punishment process that includes a legal requirement that the convicted person make a public acknowledgment of the righteousness of the decision (thanking the judges for her conviction). See a fascinating University of Massachusetts undergraduate study reported in §111 on Grossly Disproportional Sentencing.

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and national exposure that the bar couldn’t just dismiss Middleton’s ethics charges (the way the brown robe system is supposed to work for insiders.) So Middleton being caught in the internal-trial-web-process, was a really unusual occurrence, and it is interesting to deconstruct how Middleton crawled away from the sticky web, and what new judge favor-trick was used by one judge to make that happen.195 Kamasinski often sought out and volunteered to represent people like this disabled man fleeced of his personal injury award by his lawyer. Other typical clients of Theo were the wives of judges or high powered officials. Theo especially liked pretty blondes. He found these cases to be opportunities to aggressively and publicly expose and embarrass ol’boys.196 That was his kick. But he also took on cases to help underdogs, such as the Richard Averill case (suffered mental impairment as a result of a work-injury), and Tommy D’s case (disability because he was deaf, and had incompetent defense counsel) indicate. He took Candice McMinn’s case; mine after my brother left; and Judy Thayer’s when she couldn’t find counsel. He helped Karen Saffian who was trying to expose the double-murder and cover-up by a man she formerly dated — state police officer Dick Dow.197 Theo also filed numerous suits in federal court to change unfair and prejudiced informal-judge-rules and to stop the generic discrimination of federal clerks of court and magistrates against pro se people in court.198 So the court’s twisted focused campaign to eliminate this Gadfly was one of those scrum-guy things to eliminate someone who was arguably smarter and who was making them look bad.

(13) WHO IS INVITED AND WELCOME IN COURT — STATE-SALARIED LAWYERS Other calmer examples of the bandwagon-in-action include a general mentality among attorneys who work together (opposing sides or prosecuting/defending different clients) who are a consistency in the judges courtroom. There is a lawyer-judge-collegiality that routinely impairs the rights of parents, children, and outsiders. (a) In children’s court mediator training, I instantly recognized the camaraderie between the six or seven state paid attorneys and state workers who appeared together over and over at court for different cases. Like the Odd Couple (multiplied), they know what the other side had to say before they even said hello. We got some amazing results in mediation, but it took a lot of prodding to get this comfortable, rout group to move beyond their customary rubber stamp process. Again, the female lawyers were treated in a slightly second-rate manner, and one pulled me aside afterwards to whisper her thanks.

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As a mediator, I tend to try to even the disparity and insure if not equal, at least the requirement that each professional demonstrate respect and courtesy for all clients and those who are less forceful in articulating themselves. I know from experience, that state professionals get jaded and inconsiderate. Still, I believe that as a mediator, the state must show

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195 A professional complaint against Jack Middleton was dismissed under the John Broderick logic that the Supreme Court judges could have determined the “real truth” by looking in old (underlying) court records. They skidded through the muck of dealing with an actual knowing misrepresentation in court (“the lie”) with this rationalization. Of significance also — this honcho lawyer’s PCC complaint hearing was held in the basement of a side building. A place where, when I showed up to watch, I was told there was not enough room for me or any other outsiders to observe the proceedings. Obviously, I was persistent or persuasive and they found room. My similar issue for ‘trial’ was put on display in the main grand courtroom across the street in the State Supreme Courthouse — prominently front and center. I want readers to learn to read insider signals reflective of disparate special handling. 196 See Jeffrey Toobin’s article Annals of Law: The Judge Hater, New Yorker, June 12, 2000. 197 Wife Janet and son Stephen died in a fiery ‘car accident’ in 1982. Richard Dow was a state trooper, and a decade later told his girlfriend, Karin Saffian about his role in their deaths, where he claimed his son killed his mother, and how he shot both at home and then staged the car accident. (http:// www.fosters.com.news98b/june/07/fr0607a.htm) Saffian courageously, as a private citizen, pursued investigations through the Attorney General’s office. After AG Mark Zuckerman and Phil McLaughlin stone-walled the investigation, so she pushed for a legislative oversight investigation for obstruction of justice. See New Hampshire House Bill 1499, Committee hearing, January 26, 1998. 198 For example, see Kamasinski v. Judicial Review Counsel, 797 F.Supp at 1097 where Theo challenged the secrecy rule that said complainants and witnesses in judge conduct complaints were not allowed to disclose what they said in complaint (under penalty of criminal prosecution.) It was a content-based violation of the First Amendment, was improper time, place or manner regulation, and that judge’s individual rights and the state bar/judiciary interest in protecting judge-reputations or judges as a whole from scrutiny was not compelling enough to override First Amendment interests. Courts have also found judges gag rules about judicial complaints are an overbroad regulation of speech; and free speech about judgecomplaints is legitimate speech for the public consumption; the dangers of disclosure are exaggerated by courts, and restrictions about disclosure of judge complaints unreasonably restricts the flow of some legitimate information, including that which was truthful and correct and should be allowed in the public eye. See Doe v. Florida Judicial Qualifications Commm’n, 748 F.Supp. 1520).

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visible and legal respect to parents — even if the outcome is to remove and place a child. The legal process can turn too easily into a factory, especially where the state already has control of a child. Parents are frightened and that causes them to sometimes behave badly. They are angry and sometimes do a lot of crying — it comes from being afraid. Theirs is often fear-based-anger or fear-based-crying. Parents have to thread through unconstitutional and obscure law and coercive state-biased techniques, in order to understand and assert any parental right — which usually no professional even tells them about. It would only get in the way. And it is so easy just to railroad the process down a familiar pathin-arms for the lawyers. The judges rely almost entirely on the state paid lawyers — either salaried or hourly court appointments. (b) Law enforcement attorney positions (especially the top tier slots) — The State Attorney General or county district attorneys — these are training grounds for higher level political appointments or elected office, including state court appointments, federal court or prosecutor appointments and, of course, running for U.S. Congress. In cases where a top tier bar officer, judge or honcho law partner needs help professionally — from nullifying a charge of misconduct or maladministration, the search for assistance, is an insider call-to-arms to rescue Mr. Honcho as a matter of loyalty to the institution. When the National ABA Bar Secretary is in jeopardy from — for gawd’s sake — a Gadfly! — then the unified animus in response is every bit as intense as a real rugby match or even — a class war. I personally found that as a female attorney (who worked my butt off to win cases by being better researched and prepared and loyal to my clients) — I sometimes would not be allowed to win in court on the merits — or by virtue of wit or hard work and preparation. While married, I had cover for this kind of gender bias — and disliked or not, my ex had political power that came from my opponents’ fear of the damage he could cause them. Ol’boys have no qualms about calling for a bandwagon pile on. Something of a male-ego call to battle. Heaven forbid the little woman should win the case over a team of insiders just because she stayed up nights over-preparing for the next battle.

(14) PROSECUTORS Judge bias for prosecutors comes from background and training, and it is so prevalent in the courtroom and in criminal procedure overall, that it is a wonder anyone ever gets acquitted who isn’t a judge or lawyer. Those ideas are developed elsewhere, so here are two other prosecutor tricks. Bitch prosecutors. This selective admonishment of defendants and their supporters occurred in Mark R. Ferran’s New York case. He writes how in a land-trespass case, the District Attorney Patricia DeAngelis would send employees and other deputies in to “linger…with disturbing Cheshire grins” on their faces. The political team appeared to send a message to Judge William McCarthy (a recent political appointment of Governor Paki.) After the parade of politician began, the judge issued a series of exclusionary rulings and threatened to “mistrial” Ferran if he quoted from the earlier trial transcript to impeach a witness. Ferran has a JD in law and was angry at how the judge avoided the rules of evidence. He sincerely feels that political influence caused the judge to wrongly preclude impeachment evidence and all trial statements (under oath) from an earlier trial. John Baldi had a similar case in New Hampshire. Also a law graduate, his land-trespass case was not just about ATV’s crossing his land, but trespass by public officials removing dirt for a public work project and other claims of hunting violations. That turned into a debacle that resulted in personal threats against him, consumed his life for years and affected his ability to practice law.199 A pattern I see is that the idealistic people, especially those that graduate from law school sometimes make up the rare group that fights judicial abuse. We just expected judges to follow the rules set for others. Those of use that are legally trained are more inclined to ‘buck the insider system,’ that will reject us because we don’t go along to get along. For us, it’s about being fair and forthright. Using the same rules and processes for everyone. My own fall from innocence was the major shake up of my life — to come to the realization that judges don’t follow rules 199 See Baldi v. Brown, et al., 1:07-cv-00024-SM (removed January 31, 2007). But also see U.S. District Court of Massachusetts, Baldi v. Mueller (FBI) at CA No. 90-10320 DPW (2010).

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and laws they set for others to follow, and use to hold others accountable. Sometimes harshly. Then they slither around the same laws and rules for themselves and their friends. This lesson has taken decades for me to cognitively assimilate. I still wake up in the middle of the night with new eureka-thoughts. And I kept looking everywhere across the country for honest judges and coming up short. D.A. DeAngelis has an interesting history — she seems to fly in the face of defendants (and made the news more than once for her nasty treatment toward defendants.) She once told a defendant she would kill him. Since then she seems to have retired and moved away, but not until several more demonstrations of smart-alec juvenile behavior — the type sometimes seen in women prosecutors in political cases where they over-act (poorly). Some women, in the face of unfettered authority, are not as facile in verbal bullying as experienced men, so they just let-it-rip. Estrogen dominance. The Boston judicial conduct case of Judge Maria Lopez (one of the first female Hispanic judges appointed in Massachusetts) had this same bitch-prosecutor-component as the DeAngelis cases. The Lopez judicial conduct trial stemmed from an incident with a young female-assistant district attorney who didn’t get her way in an underlying case and got angry in court. The young woman prosecutor wanted jail time for a transvestite, and Lopez ordered no jail time. (The sentence was within the sentencing guidelines and her judicial discretion to sentence that way.) It was lenient, but Judge Lopez gave good thoughtful reasons backing up her sentencing decision. The female prosecutor was angry and got mouthy and disrespectful. Judge Lopez improvidently told her (the bitch prosecutor) to shut up. The younger woman took offense and (in my humble opinion) used her blatant mini-skirted sexuality to get male superiors in her office to target Lopez’s language for a conduct complaint. The resulting judge-complaint case became a prosecutor-office-publicity-media-campaign against the judge, resulting in a disciplinary trial spectacle in the Boston federal courthouse. It eventually caused Judge Lopez to quit the bench.

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There was none of that holding-a-trial-in-the-basement-of-a-back-building venue found in Concord, New Hampshire in the Middleton conduct case. Please note that it’s the little judge-made details that suggest the institutional bias or favoritism in which way the judges are handling law-discipline cases. It seems like the outcome has been determined in advance, and the trial is just the public show. No drama in the tiny obscure basement courtroom if you are going to win; but a big dramatic television show if the case is tried in the supreme court or federal courtroom for those destined to lose.

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I wanted to assess for myself the characters involved in this Boston disciplinary drama. The young woman prosecutor appeared to be like a smaller Monica swishing around the courtroom with gloating looks from her perceived power to humble a trial judge. The media coverage was relentless, skewed, and it undoubtedly affected the outcome. The little princess apparently won — to me it all appeared to be seething female jealousy and an abundance of little-girl-spite. I think the court lost a good judge as a result. The proceedings had nothing to do with the Judge’s qualifications or how she handled the case. A Hispanic woman makes a relatively easy target. I don’t think it would have happened if Judge Lopez had been a Hispanic man, and the charge wouldn’t have been pressed if Lopez had been a Caucasian judge. And I’ve seen my share of male judge temper-tantrums in court to have an opinion. But then again, a Caucasian male judge would be unlikely to show compassion. Rambo prosecutors are much like Rambo law enforcement — (an apparent national epidemic) — because most Judges sit back and do little about the State’s systematic abuse of defendants. Judge Lopez at least did something, and that something was thoughtful — (it’s not what I would have done, but it was legal and by the book) — and she got targeted for bar retaliation as a result. Sorry the young-prosecution-female didn’t like the outcome, but ‘getting your own way’ is not the standard for removing a judge. If you’re going to have a standard for taking away somebody’s job and livelihood, it needs to be one standard — and fair, and consistently applied to everyone — not just Hispanic females, white females, and uppity females who won’t stay in their designated Ol’Boy brown-nose place.

(15) FAMILY LAW COURT PLAYERS It is my experience that as both a family law practitioner and author for almost twenty years that family court is often unhealthy and sometimes fatal to the health of families.

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And I give you that, lacking widespread alternatives, judges probably keep people from killing each other with more frequency. But the present legal system stonewalls a whole universe of better, more humane, healthier alternatives. And the current divorce system is very beneficial for the lawyers and a whole lot of other people who make a great deal of money by milking the system. That pronouncement sounds like an oxymoron, since families are in court because of some dysfunction already. But the present court system, in my professional opinion, makes everything worse, almost always much worse. People go to court because they have to — but they also expect justice — something most people would think is ‘good.’ However, family members find they are poorer, less secure, the children angrier and confused, assets get wasted, and the individual parties are almost inevitably worse off in their communication and problem-solving and ability to get on with their lives. It’s not that there’s not a better system (there is) but it’s not financially lucrative for lawyers, and it doesn’t lead to years-long litigation in court. There is no incentive for judges to give up or minimize the current system. Judges don’t care about eliminating their biases; or the long term damage to health and welfare for parties or for society — caused by this biased case handling. They are indifferent to the larger social and gender problems fostered by this Insider-outsider handling, because in the short term, it benefits all professionals in the court system if they act this way. The process of how family courts handle problems of married people, especially those with children, is governed by an unruly, undisciplined process of ‘broad judicial discretion’ — a murky ungoverned area beyond the rule of law — that destabilizes society and exacerbates already large and stressful social problems. It fails to — Insure due process; Apply universal and systematic rules; Provide an affordable process for solving the problem; Prevent the use of children as leverage and property; Address systemic problems of lying by attorneys and individuals; Address systemic problems of favoritism for the wealthy and connected; Eliminate the current system of winning by granting insider favors; Provide protection to the weaker and dependent parties. The system has become like a huge shadow — a hovering vulture waiting to exacerbate family problems and consume their resources. It has reached such proportions as to warrant its own book.

(16) INTERVENORS In my case, there also were seven intervenors in all — people the judge granted party status in my divorce. They included my husband’s new re-conformed law firm associates, plus his GF, plus the judge’s BFF/GAL, plus the Associated Press, (who wanted to see what my husband was hiding this time.) Then there were the two dozen other slapp suits involving Chuck’s lawsuits against my private investigators, my publisher, associates, former clients, relatives, friends and business associates. That did not include about another two dozen bar ethics complaints, mental incompetency allegations, state bar financial audits, various manipulations of law enforcement/arrests, and miscellaneous civil and criminal lawsuits he instigated. These were largely to intimidate — especially unrelated people around and supporting me. (Those are explained a little later in the separate § on slapp suits.) Various newspapers had opened Chuck’s prior divorce files — those divorces they could find. But he hid his third divorce in the Dominican Republic, so they never found those records and I suspect they have been destroyed. Arguably, his Dominican Republic divorce wasn’t legal — so that would have made his marriage to me marriage bigamy. By the time I figured this out, I was pretty tired already. That would have made the distribution joint equity (not marital), with inheritance rights for Chuck’s property going to his third wife, not his fifth. But the two judges specially-appointed to hear the case weren’t going to award me anything, no matter what the legal theory we were operating under in court. But, it could have meant my marriage was a nullity — instead of a divorce. That would be nice.

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(17) JURORS IN COURT — SELECTION AND OTHER JUDGE TRICKS JUROR SELECTION In the Smart trial, prospective jurors had all been exposed to more than a year of sensational and distorted national media coverage, and as they waited for selection (New Hampshire had no voir dire process, but they were required to fill out questionnaires and the judge was allowed to ask questions), there was anxiety that jurors would be sequestered. There was much general talk that “the media thought she was guilty”, which of course was a veiled way of saying some jurors thought she was guilty. Several were adamant that she was guilty, yet still went through the interview process, and after Judge Gray announced there would be no sequestration of jurors, many more wanted to be selected for this case.

JUROR CONDUCT AND IMPACT The jurors were acutely aware of media, at a time when the first reality television shows in America were being produced.200 It affected their conduct — greed and exploitation factors have already been discussed, but there’s an opposite side as well. In the two-year Miami tobacco case (verdict of $145 billion dollars), the jury foreman said he saw his career crumble, his office taken away, and he became so marginalized at work (he was a school principal) that he asked the judge to be released. They were told by Judge Robert Kaye the trial would be 3-4 months; it took two years. Jurors are biased — before selection and it doesn’t go away afterwards. In fact, another related profession has evolved out of jury and trial consultants — how lawyers use community surveys, focus groups and expert-tailoring on juror questionnaires to try to find and use juror biases.201 New Hampshire doesn’t provide voir dire202 — so both the Pamela Smart case and, in another state -in the case of Christopher Pittman — family members have tracked down and documented juror confusion and misconduct in deliberations. For each, the judge disregarded affidavits and proof of juror compromise.

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Here’s the narrative of the juror confusion in the case of 12-year old Christopher Pittman, tried as an adult, not a child —

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Two female jurors testified they felt they had to go along with a majority decision that Christopher was guilty, even though neither believed that way. One woman, identified as Juror C, told the judge “she and a few other jurors did not want to render a guilty verdict” but “the rest of the jury was bothering her to vote guilty” because that was the majority’s vote and the others told her the decision had to be unanimous. Another woman, called Juror D, told Judge Pieper she “never decided that he was guilty” but voted that way in the end because of an “understanding that everybody had to be in the same agreement.”203 This misunderstanding about the role of a juror — is common. It appears to be a result of poor jury instructions, and of course, great peer pressure. Often, the judge enhances the pressure, like in the Smart case, by threatening jurors that if they don’t all agree within four hours, they will be sequestered over the long holiday weekend.

FRIENDS AND RELATIVES WITH THE JUDGE During one extended trial, Judge Janice Sterling and the prospective juror both failed to mention their existing friendship, which appeared to deepen during the weeks of trial. Both exited the courthouse in exercise clothes to attend their workout sessions, and appeared to lunch together at least once. The judge became very festive at the end of trial, sweetly 200 In 1999 Destination Stardom was the first raw-talent search show, later followed by the exponential growth of reality shows where ordinary people were discovered and featured on national television. It was a radical departure from using the canned Hollywood-contract actors that were the sole source of television ‘talent’ for more than fifty years of movies and television entertainment. 201 Paul M. Lisnek, The Hidden Jury, Sourcebooks, Inc. (2003). 202 Direct questioning of each prospective juror to determine hidden bias. 203 http://www.christopherpittman.org/

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smiling and announcing doughnuts, avoiding censure (or even notice) of the antics of law enforcement personnel that filled the back rows with uniformed officers daily, but alternatively, she initiated public embarrassment by chastising the defendant’s family and friends for allegedly upsetting the courtroom. The judge sanctioned defendant’s family for ordering the transcript of a prior hearing (the Judge mis-remembered what she previously ordered) and she to threaten on more than one occasion to remove family members permanently from the courtroom — based on her own erroneous observations and conclusions. These biased judge antics were surely perceived and registered by jurors at some mental juror-friend level. But who can tell? If the jurors don’t disclose their personal friendship with the judge, or their desire to be on national television, it is usually impossible to assess potential taint to the jury (or grand jury) process.

JURY INSTRUCTIONS In a Texas death case involving a mentally retarded man with the mind of a 7-year old, jurors were given instructions that essentially ordered them to vote no, when the proper answer would have been yes. These flawed instructions related to whether the instructions were clear enough or if they deliberately asked jurors to change answers if they disagreed with the death penalty. If jurors wanted to avoid a death penalty, they were instructed to return false answers to a series of questions.204 Since this case involving Pentry, the Texas legislature banned execution of mentally retarded people.

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OUTSIDE PROFESSIONALS IN COURT Judges control a burgeoning new industry by appointing so-called forensic experts to assist the court. Increasingly, judges appoint guardians, attorneys, accountants, doctors, appraisers, consultants and others to test, investigate, report, make recommendations, and essentially to decide the facts and truth of a case. These services are expensive. The parties must pay. The appointees are named or approved by the court. This practice turns ordinary trials into inordinately expensive cases, where the litigants have no control over costs, the costs are uncontrolled except by the amount of assets available for taking, and the case winners end up being those people attached to the legal system and the judge. Basically, the current legal system cultivates an elite group of members who hold insider status who receive special handling of cases by leaders. Those on top aren’t sharing their power with those below. They are exclusive and selfregulating. There is no real opportunity to review how courts are run. Non-insiders are told to trust those at the top. However, those at the top are exploiting the natural rights of those below them. In order to challenge this system, ordinary people have to be taught to identify mis-uses of power. As long as judges can avoid detection, they can continue to dispense justice that exploits the litigants.

(1) JUNK SCIENCE AND BOGUS LAB TESTING My experience with junk science began with the child psychological reports I came across in child abuse cases, where the testing got interpreted by sometimes ‘cockroach doctors,’ and in state cases, went the way the state workers wanted the results to suggest. Prosecutors have their favorites, which is why when I was ordered to submit to a so-called ‘competency’ exam, N.H. prosecutors picked the known commodity of the Harvard prosecutor expert in the priestpedophile trial cases, and my gut told me there was a discernable bias in the state’s selection. But how does a lay person ‘prove’ the state’s science is bogus? Can outsiders assume the state will play fair? Or will tolerate an outsider winning? My example of how a judge can skew and favor both prosecutor and local law enforcement involves a personal example involving my brother and a Yavapai County deputy sheriff.

204 Larry Margasak, AP, Death Sentence Overturned, Portsmouth Herald, June 5, 2001 at A8.

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He said versus he said. I was convinced one key to my brother’s innocence in the Yavapai County deputy shooting case was analysis of the composition of the bullets in the police cruiser. Eric said he didn’t shoot at the cruiser, but there were shots in the cruiser interior all around, from someone walking around the vehicle, shooting down from outside on three sides, and blowing out a rear passenger window. The deputy inconsistently said that Eric walked down the passenger side of the cruiser in the dirt, slowly talking to him and taking a bead on him, then shooting inside the cruiser to murder him. The deputy had seven (7) separate versions of his story, which is why locating and calling the missing responding officers was so important for trial.

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Eric claimed he ran down the pavement roadway on the driver side of the vehicle, past the officer (who had emptied his gun shooting at Eric, and then lay face down across the driver’s seat.) Eric ran at the shooter, around the cruiser, then under fence into the desert. A few minutes later Eric heard more shots and assumed the deputy shot Chester (the German Shepard he had taken pains to instruct to stay in the truck and not jump out the window, as was Chester’s wont.) Chester had been sitting in front seat open window of Eric’s truck. Everyone on the State DPS (Department of Public Safety) investigation team appeared incapable of determining which of two men shot up the cruiser? The footprints by the passenger side existed, but were destroyed and not preserved in the crime scene processing. They would have conclusively demonstrated Sorenson’s big foot. The hand-print on the freshly washed trunk and roof were exciting to DPS, until it was determined months later that hand prints belonged to Sorenson, indicating a likelihood the Deputy shot his own cruiser. They also were consistently placed (in terms of Sorenson’s height) for him to be the shooter. Then DPS lost interest. The shattered rear-passenger window glass was in Sorenson’s clothes, but nothing was preserved or tested for residue. Common sense was ignored. The video camera on the dash was never found, as was the department medical reporting record from Sorenson’s shift. Prior assault and overuse of deadly force department reports were sealed or not produced from his personnel files. One whole bullet that was intact, went missing in police custody and was not reported or mentioned at trial. A lot of bullet fragments were collected but were missing for a decade. The first responder, Officer Ramon Rivera went missing for trial, as did the Department of Public Safety scene investigative officer.

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Expert One. My parents hired the so-called best state bullet-analysis specialist they could find in 1998. Lead bullet expert Luke Haag taught law-enforcement classes for Arizona state police was considered the Southwest expert. Haag was inconclusive. He didn’t test and he didn’t analyze, but he didn’t tell us that. He quit the defense, then just before trial surfaced as a prosecution witness. Several knowledgeable people have reviewed his testimony (he provided inconclusive gibberish for the prosecution. The prosecutor inferred to the jurors that Eric was guilty because Haag switched sides.)205 Haag hours of inconclusive testimony left the jurors like zombies and he avoided any conclusive results either way.206 Haag also avoided testifying about lost bullet evidence, avoided saying he had not tested bullet fragments, or that he frankly didn’t know one way or another. But he was pompous and verbose, and no one had any idea what he was pontificating. So Haag collected double fees as an inconclusive expert. Bullets had not been collected properly, or collected and lost, but he said nothing about that either. Sorenson claimed he shot only 5 bullets total (one clip), but investigators failed to file any report about the other empty clips that were stuffed into the Deputy’s shirt and pants pockets, visible in the scene photos. Expert Two. In the meantime, I had gone to see Massad Ayoob of the Lethal Force Institute, on the East coast, who was excited about doing an expert reconstructing of the shooting incident with a cruiser, and proving the difference between Eric’s 44 bullets (Eric loaded himself) and Sorenson’s 45 full metal jackets. I was thrilled and left my first meeting with Ayoob convinced he was our brass ring. Then I told him the name of the Arizona expert and in an instant, Ayoob seemed afraid and backed out. He wouldn’t testify against another police professional, he said — especially that one. My impression now, years later is that both men in the 1990s were practicing as well-paid experts in this area of junk science, and would not be honest about its vagrancies or rat the other expert out. About that time, I decided to go to the FBI. 205 The National Academy of Science said “decades of [such] statements to jurors was “unreliable and potentially misleading” and so overstated that such testimony should be considered “misleading under the federal rules of evidence.” John Solomon, FBI’s Forensic Test Full of Holes, Washington Post, November 18, 2007. 206 Attorney Pat Scholler — a wonderful attorney at the Arizona Innocents Project spent weeks reviewing Eric’s trial testimony and said there was no lead bullet testimony or/and apparently no lead bullet testing ever done, including by our expert Haag before or after he flipped sides. Interesting, because that’s what my parents hired/paid him to do. She said the State Police and the Prosecutor Mark Ainley did not at any time raise the lead bullet composition as part of the prosecution. Had it been raised, the Innocence Project would have taken my brother’s case on appeal.

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God Bless CBS 60 Minutes for their investigative reporting.207 In December 2007 CBS ran a feature about the junk science of bullet analysis including bullet lead matching.208 Two top FBI experts, Dwight Adams (former FBI investigator) and William Tobin (expert) stopped the process and become whistleblowers, decrying this as methodology used to convict approximately 2,500 people over three decades through junk-science expert testimony. They were each retired from the FBI by 2005 when this story first broke — five years after my brother’s conviction.

(2) SO-CALLED NEUTRAL EXPERTS IN COURT Instead of one expert playing both sides, cases can become battles of multiple experts, each paid expensive fees to say something “expert” for the person paying them —that is supposed to sound persuasive in court. For a defendant — hiring an expert is a one-time gig. For the state and prosecutors — these experts can testify in hundreds of cases — at a significant income for expert fees. So human tendency is to give prosecutors what they need to hear to convict — for the right fee, and an expectation of repeat business. All areas of scientific expertise can be suspect, but I am most wary about psychological experts, who don’t have lab results or speed-crash tests, or water-analysis and cancer diagnostics about carcinogenic compounds found next to the tanning or paint or chemical factories. Psych testing is about the mind and human behavior — and that’s not like counting DNA strands from a blood or saliva particle. Experts may be used (especially in criminal cases) to testify about a defendant’s propensity to behave or act in a particular manner. It’s hypothecation, but is used to demonstrate to a jury what might have occurred based on so-called projections. Therein is the fallacy — the underlying ‘facts’ or suppositions that require a subjective opinion about a nonfact, in order to formulate an ‘expert’ opinion about a projection or guess. For example: when entrapment is an issue, psych experts are brought in to suggest the defendant is predisposed to commit some crime. While the expert is not supposed to tell jurors his expert opinion about whether this particular crime was done — he does get to project209 that “based on a mental disease, defect or subnormal intelligence made him more susceptible that the usual person…”210 The good news and bad news is it is judicial discretion as to whether or not this expert testimony is allowed. That standard is easily abused, difficult to appeal and comes with its own set of appeal judge evasions and manipulations that prevent correction on appeal of trials that are full of errors and abuse.

(3) PSYCHIATRY AND THE LAW In addition, trial experts are supposed to limit opinions to matters involving “scientific, technical or other specialized knowledge.” There’s a lot of weasel room in the question of how reliable the evidence is that established the so-called ‘facts’ that the expert uses. As we have seen in the 12-year old Pittman murder case, there is more than weasel room — but a pharmaceutical industry self-interest in protecting a multi-trillion dollar industry. So for free, they will fund their own self-serving so-called scientific research. The study flaws are not obvious from a quick reading of the resulting report.211 Those can be vague psychological symptoms or profiles. It involves a well-paid expert’s subjective interpretation, which

207 Both the Washington Post and CBS 60 Minutes did a joint 6-month investigation indicating over 250 cases where people were convicted, at least in part, on faulty lead-bullet analysis. Problem is, almost none of those prisoners were notified (and then only through former attorneys) and only a handful of a handful (less than a dozen out of 2,500) got released or re-tried despite a flawed conviction process, reported the replacement acting FBI Bureau Deputy Chief, in a speech in Albuquerque, 2008. He lightly said, there must have been other evidence to convict, and he did not find 5 out of 250 or 2,500 to be disturbing. The FBI never went back to see how many were really convinced using this bogus science analysis. 208 The “science” was developed by the FBI as a result of the JFK assassination. 209 This kind of expert opinion needs a proper foundation — either testing or interview(s), which is where the sleaze factor comes into play. 210 Gershman, supra, “Investigative misconduct §1.15 at 19. 211 The same superficial non-scientific manipulation of statistics can occur at multiple trial phases (for evaluation, sampling, study and design-flaws. Each segments can lead to non-credible, mistaken, or fraudulent clinical studies and reviews. See also court studies for the Senate Judiciary Study Committee on Judicial Disability in chapter on appeals.

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can be unreliable and biased. Psychiatry has been called the pharmaceutical industry’s dream, because “psychiatry diagnosis are vague and easy to manipulate.”212 Is it PTSD or a personality disorder? Did Chris Pittman have a manic episode break caused by severe new drugs? Or is the kid a dangerous sociopath? Is it paranoia or someone in authority really systematically targeting someone for marginalization? These conditions are not externally verifiable, and may just result in a price-battle of experts for various special interest groups, or the targeting to convict of some hapless indigent defendant who can’t afford to keep up in the expert spending race. Experts are supposed to be limited to opinion in the range of subject matter they are expert in — but may wander into other areas where they offer opinions. Kind of like judges at home who feel they are judges in all areas of life, not just the courtroom.

The implications and damage of an industry-biased expert can be enormous. Their testimony is allowed only subject to the vagrancies of the judge’s discretion — so for example, Eric was denied rebuttal, cross or expert impeachment of Deputy Sorenson’s surprise mid-trial claim that he suffered PTSD as a result of this traffic stop shooting.213 The difference between a pre-existing aggressive disorder and PTSD? Both are mental disorders, and being precluded from knowing (Brady violation) and being able to cross and impeach (fair trial constitutional rights) was part of many rulings that flipped and flopped during trial to avoid giving the jury a full picture, and the defendant a fair trial. The judge ruled there would be no questioning, rebuttal, impeachment or expert opinion by the defense in front of jurors about the duration, symptoms, and pathology, and accuracy of the diagnosis of the deputy’s invisible mental condition.

THE PASSAGE OF TIME TEST Decades of time indicate if a so-called ‘scientific method’ is bonafide or as inauthentic and unreliable as lie-detector testing (invented in 1921 by John Augustus Larson, a medical student at the University of California at Berkeley and a police officer of the Berkeley Police Department and discredited by 2001 CIA Director and others have noted that lie detector testing is almost uniquely American — in 1978, Richard Helms stated:

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“We discovered there were some Eastern Europeans who could defeat the polygraph at any time. Americans are not very good at it, because we are raised to tell the truth and when we lie it is easy to tell we are lying. But we find a lot of Europeans and Asiatic [who] can handle that polygraph without a blip, and you know they are lying and you have evidence that they are lying.”214

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Lead bullet analysis invented by the FBI in the 1960s and discredited in 2004 — seven years after my brother’s traffic cop shooting incident with Chris Sorenson. Courts have tests for whether the science is reliable (the Frye standard and its progeny), but basing admissibility of evidence on evolving technology and pseudo ‘science’ has led to mistakes and many errors with innocent people’s lives. Often the opinion is not reviewable under judicial appeal standards. Trial errors are denied appeal that get labeled “harmless” somewhere in the trial or appeal process. Or judge-ruling-mistakes, which the reviewing court just evades analyzing altogether. Many appeals are rejected for reasons unrelated to the fairness or truthfulness of the trial judge’s determination that the trial error was “harmless.” Whether or not the judge’s label was a mistake or even fraud by the

212 Further references in the appeals chapter. Quote from a video interview with Peter GØtsche, provided by Bruce Lavine, PhD, http://www. madinamerica.com/2013/03/the-systemic-crushing-of-young-nonconformists-and-anti-authoritarians/ 213 This was part of the Brady material withheld by the Prosecutor and judge. It surfaced days into the jury trial when Sorenson, crying, told jurors he suffered from PTSD. The judge then ordered the prosecutor to turn over withheld personnel medical files. The defense scrambled to find an expert psychiatrist, who disputed PTSD diagnosis, but identified evidence of a pre-existing personality disorder back to the deputy’s childhood. Judge Sterling would not allow Expert Dr. Woods to testify, would not let the defense cross-examine or impeach Sorenson’s claim. The judge said the PTSD testimony was a ‘harmless error’ for jurors to have heard at trial. But stay tuned… 214 http://mcadams.posc.mu.edu/russ/jfkinfo2/jfk4/Hscahelm.htm

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judge. Is it fraud in the trial process for a judge to withhold exculpatory testimony from the jury? Other judges use all kinds of names — but the purposeful issuance of a ruling to deprive a defendant and the jurors from hearing bonafide impeachment materials, expert witnesses, and fair trial process is a form of judicial fraud. It is never punished, so it gets repeated, until over time, judges incorporate this is okay behavior. In any event, they will be protected by the system. Two opposite fallacies are routinely in play in expert testimony — the reliability of the scientific aspect, and the subjectivity of the judge’s thinking process, bias, and orders. The possibility of bias in an expert is strong — and this expert area of testimony is one vulnerable to error based on its — opacity — that average jurors cannot and do not know how to deconstruct expert errors, mistakes, biases, and misconduct, much less the so-called scientific gibberish language and methodology.215

STATISTICS Just as State police gun training expert Luke Haag put jurors and the entire courtroom to sleep with his monotonous pseudo-scientific recitation of non-scientific, non-lab, non-testing about bullets, so other trial experts skate across the surface of their expert opinions, sometimes without defense attorney challenges to their bogus methods and statistics and expert opinions. They do this for bite marks, lead bullet, lie-detection, pharma-chemistry-effects on the human system, and a lot of other cause-effect lawyer claims manipulated by professionals to add weight to social or scientific theory testimony at trial, whether or not they are fact-based, relevant, or accurate. But they make an impressive show for jurors in court. Both experts and law enforcement may obscure the fact that they did not test or analyze properly, or the investigation was shoddy and improper, or that the ‘conclusion’ or ‘fact’ is so statistically large or small as to make the expert opinion circumstantially meaningless and scientifically in-credible for this case.216 Weaknesses in design may include — the definitions, the hypothesis or theory, the variables or central proposition, misor non-identifying potential weakness and basic limitations, mathematical errors in procedure, errors in data analysis and interpretation. Also their erroneous, biased, and statistically tiny conclusions may be inapplicable or insufficient sampling. That doesn’t cover researcher biases existing at every stage, and the fundamental flaw in the difference between objective truth, and scientific proof methodology.

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1. EXPANDING THE HEARING TO MATTERS NOT NOTICED Whether a litigator trick or just poor judicial management skills, a judge who permits the other party to turn a hearing into a free-for-all by raising and hearing issues that were not noticed in the clerk of court’s notice of hearing. As awkward as the title of this section sounds, it is written in the language of the court. “Matters Noticed” means that the parties have received a formal written notice from the clerk’s office about what subjects will be covered at the next hearing. Trial covers the entire rest of the kettle of fish, but hearings are limited to specific issues in the notice, in order to determine pre-trial rulings that each party can count at trial. That’s why a second judge reversing decisions made pre-trial by another judge, as in the Belle Isle Nun’s case, was so egregious a judicial practice at the trial. Rulings that were argued and decided earlier were just flipped and tossed out by Judge Coffey. They didn’t support, and in fact contradicted, what outcome she was assigned to order for this case. The purpose of notice is to allow parties to prepare for hearing on the issues listed in the notice. It provides predictability and fairness, and is an element of Constitutional due process. When a judge permits the other side to 215 John Creswell, Research Design, Qualitative, Quantitative, and Mixed Methods Approaches, 2nd Ed. Sage Publications, (2003). 216 Darrell Huff, How to Lie with Statistics, (1954).

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raise other issues without notice, and he then hears and decides those surprise issues on the spot, without notice, the judge is allowing legal ambush. A hearing is noticed by sending all interested parties a timely written letter from the clerk of court telling the location, date, time, and issues to be heard. Sneaky tricks include allowing notice to be so vague or indeterminate, that any issue in an opponent’s pleading can be raised. No matter how remote or tangential. Sometimes, the judge lets one side raise a new collateral issue during the hearing, and then conducts a far-ranging discussion at hearing. Consider this as sneakytrick ambush. Pay attention to the papers the court mails — notices from the court about what issues the court will hear. Sometimes, hearings are limited to what is stated — calculation and temporary orders of child support (for example). When you get to the hearing, and if your ex is like mine, he will walk in with a two inch thick set of bound papers in plastic sheets — so called “exhibits” (many of which are really just hearsay summaries with no corroboration,) and ask for some outrageous or surprise asset on the spot. (Once he asked that I be forced to change my name) — and the judge drops everything else and allows a surprise food fight to occur instead of hearing about what was noticed. This is a serious matter, because then the hearing has “mission creep”, and the purpose is to take something from you by ambush. The phrase ‘due process’ is a legal concept217 that trials and hearings are not to be by ambush or surprise, and you have a fundamental right to prepare and defend whatever is being taken from you. With proper notice, you can get your blood pressure under control, analyze the motion or request, think through a defense, write out a defense, line up witnesses and exhibits, and then thoughtfully consider if all that is the best course of action — all before you show up at the courthouse.

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Insiders try to do the most important things at trial by ambush — for example, taking your children. For me it was taking my law practice by ambush. Taking my bank accounts, another ambush. Other ex parte takings (There were so many, I haven’t narrated them all.) Finally my home and all my tangible and intangible assets (my authorship rights and royalties, for example, and my ability to practice law.)

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It can be an attorney or the judge who tries to stretch a hearing (noticed for one issue) to gain some preemptory advantage by bringing up other issues. If the judge fails to control this ploy, you have to recognize, name, and object. Attorneys sometimes launch a parade of surprise new attacks — catching the other side unprepared. They launch and spin until the judge get suckered into hearing something not noticed. Then judge rules (unfairly) on the unnoticed issues. You can anticipate how to ask for the issue to be struck or reset for another date. Watch if the judge himself raises ambush and collateral issues, as JNad did to me at every hearing — a whole briefcase of original ‘schemes’ that always robbed me of some legal right or process. These were his private protocols — not in law, not in rules of procedure. Experienced attorneys recognize and object, but often, pro se and less aggressive attorneys will merely respond ineffectively, instead of making the judge do his job and set the new matter for a noticed hearing at a later date. Legal issues need thoughtful preparation and time to consider. One of the nicest things about living in the desert in a ghost town without television or stores, and not many people — is there is a lot of beautiful time to think things through. Something I rarely have had much of in my earlier life, (which were largely dedicated to careers of husbands and taking care of others) is this gift of thoughtful time.

EXAMPLE ONE: SOMETIMES, EXTRA IS GOOD. Not every occurrence is a SJT, so slow down and analyze the particular circumstances. There are valid times for a judge to hear something “extra” at a noticed hearing. He is not being sneaky or abusive. For example, if a hearing ‘letter’ says the judge will be hearing the parties on the issue of ‘temporary support’, then that is the only subject matter scheduled to be heard. But one or both sides may orally ask the judge to hear something else during the hearing as a matter of emergency, convenience, or necessity. The judge may or may not agree the new issue. For

217 The wording is usually provided in state court discovery rules, but applies to the principle that it is unfair to ambush an opponent.

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example, it’s a hearing about discovery, but a non-custodial parent arrived from out of state and asks to see his children overnight after the hearing. Mom doesn’t agree. The judge may add that disagreement into the hearing, and issue an order. If he doesn’t, there is no ‘do-over’.

EXAMPLE TWO: However, if a case is scheduled for hearing on temporary support, and the judge decides to make a permanent award of property to one side by ambush, it’s time to object. Property awards usually are heard only at final trial on the merits, because there is protective process of (1) trading information back and forth based on the values (2) the values are to be ‘proven’ as fact with evidence and expert opinions — presented and cross-examined, impeached. The whole process is a two-sided testing for validity. So all this informal switching and gifting to an ol’boy in advance of trial — are judge set-ups that evade the fairness and due process requirements. We’re not in court to be friends and do favors, so this amiable passing out favors without following the process is a corrupted one. Just because it is done in a court-room doesn’t mean it is legal in fact or law. Lack of notice may indicate the judge is railroading the process to benefit the insider.

EXAMPLE THREE: In Ex-wives cases, judges often awarded the most-lucrative marital property to husbands prematurely. Sometimes, it was ‘to sell’ — such as the family home, the family business, and control of large amounts of money. Transferred in advance of trial (which, after all, is suppose to be the place where all the evidence, experts, arguments, testimony, challenge, and impeachment is going to occur.) After the judge has the full asset picture before divvying up property. Fairly and in the totality of the circumstances … When apportionment is done piecemeal in advance, the full trial on the merits becomes a moot exercise, and the judge often will avoid even mentioning the loot that got dissipated or awarded earlier to the Insider. That’s part of SJT trick Divide and Conquer. The judge may overall have jurisdiction over the subject-matter and the parties, but not at a limited-notice hearing where the trick exceeds what was noticed. Observational Note: This widespread social phenomenon of divorcing-judges cultivating an institutional and personal selfishness and belief that they have no responsibility for their spouses or children was present in almost every ex-wifejudge-divorce case.218 Remarkably, instead of being community leaders, they almost always sought to avoid child support, minimize it, and transfer responsibility over to the dependent spouse, often despite a vastly superior earning capacity. Author Ervin Staub raises a number of relevant group factors that suggest the professional/social isolation of judges, combined with a lack of accountability, contributes to the dissociation phenomenon, where judges are so out of touch with the effects of their actions, that they do not self-regulate or even recognize what they do is socially and morally wrong. As we explore how judges are culturally conditioned and influenced to be more concerned with opinions and approval of other judges and lawyers than anyone else, including their own families or the rest of society. More than any other motivator, judges seek approval of peers.219 That is other judges and attorneys. They seek to avoid disapproval and criticism of the group. Shared views and monopolistic economic incentives (avoiding competition) work to strengthen the group, and create a “natural tendency to conform.” So the unification movement, with it’s economic isolation (and disproportionate wage/salary compensation compared to average court-clients and ordinary citizens) keeps judges out of touch with reality. “The economic factor is also a subtle and potentially destructive influence.”220

218 This idea is developed in ‘The Nature of Groups’, Ervin Staub, Chapter 17, “The Roots of Evil.” Professor Staub is a professor of psychology, University of Massachusetts, Amherst. 219 See Richard Posner, How Judges Think (2010) and Reflections on Judging (2013), supra. 220 Staub, supra, 272.

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Cross-cutting is a technique of causing interaction between opposite social sub-groups, to mutually help create respect, make bonds, and cause change. There are many ideas to reform problems in the courts, and cross-cutting is one. Group members must avoid criticism of court and bar leaders, who become even more isolated from the rest of society. They have to hunker down, ignore abuse, and try to force respect from the public. They practice selfreinforcing logic. Judge leaders have an increasingly limited insider perspective of the institutional and social problems they create in society. They move to stronger affiliation and bias with law enforcement and prosecutors, making the overall social problems worse. This “us” versus “them” mentality contributes and increases judge prejudices, who in turn, substantially de-value non-insiders. Even their own wives and children, as a sub-group, get significantly de-valued in divorce. It is human nature to devalue those we harm, and value those we interact with and help. Under the rules courts established for themselves, judges are without accountability. They have a stranglehold on the judicial accountability process. Whether by “conscious sabotage or unconscious projection”221 judge handling incorporates deep collective unconscious of male authority and domination in case handling — reflective of the “deep sickness of the soul” of this institution. “In the first half of life… parents and teachers understandably emphasize obedience to authority. Spiritual directors and confessors know that those internal voices are often mistaken for the voices of God for the rest of our lives. They might be God’s voice, and they might not. Normally the voice of God is much more subtle, similar to the “still small voice” that the prophet Elijah had to learn to recognize. (1 Kings 19:12).”222 “They [judges, also] have great power.” “Great power is another danger. Power and the leadership role easily lead to a belief in special knowledge and the devaluation of those who dare to oppose. Leaders may come to believe that they have the right to use whatever means are necessary to achieve their desired ends.”223 Straub also calls the process of self-censorship (whether “conscious, barely conscious, or unconscious”) a factor in a groups’ “ability to keep out of consciousness aspects of reality that do not culturally fit into self-conception and values.” The whole group shares the same views, so like Vietnam atrocities, “the distortions are difficult to detect [and] attempts to call awareness to it will generate hostility.” I’ll say. Straub also points out one way [for judges] to correct their ‘cognitive screening’ (i.e. their blindness to the abuses all around them) is to “take seriously the voices of those who claim to point to a reality we do not see, even if they present an unpleasant image of us.”

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Punishment for ‘breaking with the group” begins with social sanctions, disapproval, criticism.” In my experience, it also means marginalization, and progressive threats of discreditation, and if that does not work, elimination by the Double-B, Triple-C techniques created for whistleblower attorneys reported in this book.

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A MOTHER’S RULE FOR DIVIDING EQUAL PROPERTY If you are tempted to dismiss this argument as trivial, just reverse the roles and have the orders benefit the other side with exactly the same property. The judges ex-wives howled with laughter at the idea that they could ask for and receive the same treatment and property awards as their husbands. When this trick gets combined with other SJTs, (such as armed home invasion), the trick is not a laughing matter and is seen more clearly as insider preference. Think of it as a mother directing children to evenly divide the last piece of chocolate cake — one child cuts, the other child selects first.

221 Cynthia Bourgeault, The Meaning of Mary Magdalene, Discovering the Woman at the Heart of Christianity, Shambhala, 2010 at 22. 222 Franciscan Father Richard Rohr, Two Halves of Life, The Will of God, June 20, 2016. See on-line, Center for Action and Contemplation. See also Falling Upward: The Two Halves of Life. The latter is the tiny volume that re-started this book when it stalled and almost aborted during its gestational process. 223 Staub, supra 270.

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2. ACTING IN EXCESS OF JURISDICTION — is a similar trick — because the judge lacks authority to make orders in the area that he is acting — under whatever the grant of authority is to that court in general (by the constitution or the legislature.) Sometimes judges of broad general authority are assigned to hear cases (such as divorce) which are of limited jurisdiction, so the judge who decides to ride free-rein over all issues which may surface, may not, in fact, have jurisdiction to hear them. In addition, there may not have been due process notice that the judge will TRY to hear the issue which arises. If proper notice is given, the defendant will have opportunity to prepare, object to jurisdiction and avoid the hearing unless it is transferred to a court with proper jurisdiction. However, this often does not happen, and the judge becomes a cowboy barreling ahead and hearing anything and everything that the other side wants to raise. If the other side is an experienced litigation team, they may believe it is their duty to raise a myriad of red-herring issues to swirl the case. (The busy and broke component.) In family law and divorce cases, the rules of court are so relaxed as to sometimes not exist, so those judges become used to doing whatever they feel like — and they really don’t like hearing from some defendant that there are constitutional limits to their authority. So, overall, this type of law practice tends to be fairly adventuresome if one party wants to remind the judge that she is limited in her authority. Then the judge may act as though a jurisdictional challenge is a personal insult — and it is obviously vexing to a judge who is used to venting her anger unabated and uninterrupted. Its tyranny, but this kind of behavior is like domestic violence battering — for decades, no one wanted to acknowledge or deal with it. Don’t bother me with limits of power. I’m a judge.

For example, a marital master is unable to order contempt. They lack authority to jail or fine anyone. They circumvent the lack of power by making a recommendation to the supervising judge — the next person up the food chain — but that judge cannot order a “direct contempt” because “direct contempt” by definition requires the act to be done in the presence of the judge. Or, a magistrate court has only a limited jurisdiction to hear only a certain type of cases — misdemeanor or traffic, for example, — but sits on a burglary case or wrongful death question because it comes up as a collateral issue during the first proceeding. This happens in juvenile cases, family law cases, drug cases, and other limited jurisdiction cases where the judge doesn’t recognize her boundaries, or she gets on a roll and doesn’t stop the hearing and refer the collateral issue to another court. Not only is there a lack of notice, but the judge is acting excess of jurisdiction. That’s why there are so many “secret docket cases” hidden in that locked room behind the stacks on the top floor of the state law library.

Jurisdiction. One set of limits on a judge’s authority is a limit of general jurisdiction of the court or office. The judge is only authorized by the constitution or by statute to have certain powers in each court. Because they sit in the same courtroom but hear different types of cases (criminal, civil, divorce) they ‘forget’ each case may have different jurisdictional limits. This is decided state-by-state, but each state and the federal courts have different jurisdictional limits and boundaries. Sometimes the boundaries are financial, or may be based on the subject-matter of the case. For example, some divorce courts cannot hear contempt because the magistrates lack authority to order someone incarcerated.

Trying criminal ‘ideas’ in a civil court. Some judges act like a sort of deity with power over others without limits. Down deep they understand there are limits to their authority, but in their court, it’s all about judge egos. The judge testosterone spurts up, they engage in battle to assert their supremacy — and to make people in the courtroom demonstrate unquestioned deterrence to his authority.

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This is a judge ‘I’m in control of you’ feeling. If you haven’t been there, it’s a mano-o-mano moment, where judge gets totally caught up in moments of her own power or grandeur, so a defendant appears to be a challenger to her personal grandeur. As a pro se litigant, I have to make a decision about how far to assert a fundamental right. Especially when it appears the judge is making a wrong call, has poor judgment, or is simply ignorant about established law and procedure.224 This judge-ego process has a biological chemical progression — anger flares; strong word commands become verbal insults; bigger louder anger can jump — to a more physical expression (walking out for example) or ordering a party in contempt and or lock-up. It’s like any other physical aggression — and threats against parties or lawyers can be applied at any point. Judges routinely bully people in their courtrooms; once they begin this type of posturing in one case, it has a tendency to spread to others. The judge loses tolerance and compassion, and becomes jaded to human behavior and feelings.225 The judge’s ego often grows exponentially, and whether it is a matter of lack of judicial temperament in their personal make-up or career burn-out, some judges simply do not have what it takes to control their own tempers and egos and run a fair courtroom. Alcoholism is sometimes a factor. Some judges are physical abusers at home with wives and children, where they get practice. It can be verbal or physical or both. It can be pretty damaging verbal abuse to family members, not only from a natural propensity, but through on—the-job-training to eviscerate people in court with words. If challenged, judges often resort to bullying and rudeness and become court tyrants. Judges can be smug and overbearing against people they have pre-determined they do not like (this would be anyone who is not like him in looks, economic, educational or social background) and some seem to wait for the next opportunity to put some disfavored party in his place. One method is to find a party in contempt in the courtroom and then order the person’s immediate incarceration or some other kind of “summary process” is to award all assets and money over as an imputed fine or punishment. Judges dump the equitable distribution laws and processes (in divorce court) and other civil cases and just roll with an illegitimate kind of imperial summary rulings based only on judicial power, without going through the established law process. That due process sure slows down case outcomes when a judge is on a roll. It is hard for litigants to understand it as it is occurring, or to correct on appeal. And most litigants and lawyers fail to recognize judicial abuse of the summary contempt process.

CHAPTER

Social Scientist Barbara Oakley reports on this phenomenon where people like this “often don’t consciously intend to be evil and certainly don’t see themselves as evil—despite the blindingly obvious and sometimes terrible consequences of their actions. Instead, these are people who are constrained by quirks of their neural machinery— often carved by both genes and environment—to act in self-serving, manipulative, and deceitful ways.” She also calls it “distorted, self-serving cognition.” 226

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Stories of Judges who lose their temper and order lock-up of attorneys, parties, and even jurors, are legendary. Judges, whether they know it or not, try to create fear in their opponents as a control weapon against dissidence. Sometimes they are sued or complained about. Rarely does it create reversal or new trial on appeal.

224 I once experienced a judge who accuse me of criminal conspiracy to avoid document production in discovery in violation of Rule 37 of the Rules of Civil Procedure. As it turned out, there was no duty for me to disclose. Under Rule 37, Rule 26, or any of the other rules of civil procedure. [There was one rule exception, but my trial document didn’t fall under any of the four categories of rule exceptions.] The judge just didn’t know her civil procedure rules well (she had been a prosecutor until nine months before) but she was on fire to dismiss my civil case at the end of a trial, regardless of the evidence or law. She also clearly wanted to financially sanction me harshly, and along the path, to label me a criminal. (This all the earmarks of the Coffey/Belle Isle Nun’s case.)

She achieved her goal, in an end-of-trial wave of court-room excitement that swept away the judge role, and reverted her back into the imaginative world of prosecutor-madness. Prosecutors can say anything, and they convince themselves that it is true. They believe it, not based on fact, but in the chemistry of the trial moment.

Problem is, none of it was true, nor was any of it based in actual rules of law. But this judge confabulated an entire scenario out of her blind desire to make the case turn out a particular way. It sure is high drama though. Kind of a modern day Perry Mason-on-steroids ending. It reminded me also of my PCC trials —which ended on soprano-C-high notes of prosecutor hysteria — with lots of vocal intensity, but shy on actual charges, proof and facts.

225 There is a bonafide philosophy behind limiting terms and rotating judge assignments. It shouldn’t be a life-time job. 226 Oakley, Evil Genes, supra at 331.

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3. ABUSE OF CONTEMPT POWER The judge may be acting in the absence of jurisdiction and without authority. They are wearing the robe, but the court doesn’t have that kind of authority to order contempt. Therefore, if they act to find contempt and then immediately punish the contempt by jailing you, all that work is beyond their scope. For example, if a court does not have personal jurisdiction, it lacks all jurisdiction in the case. Then the judge will forfeit judicial immunity. You still can get locked up, but its wrong and at civil trial against the judge, in theory, you could sue to collect money damages from the judge personally. Good luck. Overall, judges cover themselves well by saying a court must clearly lack all jurisdiction before judges lose their judicial immunity. The abuse of contempt power is an area where judicial immunity can sometimes be pierced if the judge acts outside of jurisdiction or authority. What if a judge issues an arrest warrant without a sworn complaint? Check for loss of immunity. Several cases have found that this is clearly an act that violates law that requires judges to have a sworn complaint before issuing an arrest warrant. Otherwise they are acting in excess of jurisdiction, and they lose their immunity, and may be sued for malicious prosecution or abuse of process. One judges jimmied around the facts on the affidavit to make it appear the case was within his jurisdiction, so he would be authorized to sign an arrest warrant. Another tried a motorist under a non-existent statute for an alleged offense committed outside of his court’s jurisdiction. I was just never focused enough to recognize the civil rights violations in the cloud of fear I had — that surrounds these extrajudicial judge abuses, or the loss of judge immunity, when it happened to me. Swat team pounding at my door? On the witness stand at trial being in a civil case and having the judge initiate and segue into a collateral charge of criminal conspiracy during last 10-minutes of trial? It’s hard to understand what is happening (not just for the defendant) so those civil rights issues tend to get lost in the judge’s drama production. But it’s a pattern I can, years later, stand back and identify over and over in different cases, as a whistleblower defendant. Cases that operate on a pre-determined judicial course of action — punishment for violating the unwritten judge loyalty honor code.227

4. COLLATERAL MATTERS ON CROSS-EXAM The scope of cross is supposed to be limited to what was covered in the underlying direct examination — and cannot be exceeded under the rules unless the witness opens the door with a extra (collateral) issue or admission. So the judge initiates some external allegation — like an alleged ‘rule violation’ that she morphed into an allegation of egregious criminal conspiracy. Course, there was no rule, no violation, and all the rest was pure fictional judge drama. High drama. Like a movie. But that collateral manipulation became the reason to dismiss my claim and order exorbitant financial sanctions. That’s why I write some of my trials are Kafquesque.

5. AFTER HOURS HEARINGS Having been the victim of both after-hours and weekend trial, I still have questions of whether judges have power all the time — or just in court. I know police sometimes go to judges homes after hours for signatures on search warrants, but arguably, that is a mere procedural detail, and not a substantive taking — for example the ex parte attachment after the close of court on my law office bank accounts. Judges who, for example, arrest people at the dump have been censured for ethics, but the question of whether a judge loses authority outside of court, after hours, out of state,

227 Honor Codes are discussed in more depth in the last chapter, but it is fitting to mention here that every college has rules governing academic dishonesty, just as every court has ethics rules governing judicial and attorney dishonesty. Cheating is tried in some sort of review court by peers, and from that judgment of guilt (or not) follows some sort of punishment. How is an honor code proceeding different from a court of law? In particular, what is different for honor code courts? Judges routinely skirt around attorney violations (including lying)at trial — and in doing so they avoid the honor code tribunal, and avoid dealing with the breach of duty and violations. They assume jurisdiction over these attorney infractions instead in the courtroom. That way, they can hide them. Similarly, I have found that most judges will go after a defendant — (who falls outside the honor code) — by twisting ideas and unproven argumentative allegations — into honor code violations. This is a heuristic trait of judges that is hard to pick out. Study the section on heuristic thinking — to identify bogus collateral issues not based in fact or law, that can become the fatal swift sword — in a judge’s courtroom manipulation, especially when the goal is punishment of the unwritten insider code by an outsider. That is happening in cases all over the country, when outsiders challenge the illegitimacy of a judge’s actions, rulings, and decisions, no matter how ‘respectfully’ made.

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or other jurisdictional questions means judges lack their protection of judicial immunity from civil lawsuit in these circumstances. What’s the standard to protect citizens? When is a judge not a judge? When does immunity not protect them from wrongful acts?

84 RULES AND JUDICIAL DISCRETION

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Judges write their own rules.

1. THE COURT’S OWN RULES Why don’t judges follow their own internally made rules? In New Hampshire, the rules are almost a stream of consciousness, an un-indexed body of regulations with Swiss-cheese holes in rule coverage. They lack clarity and discernable bright lines establishing minimum-good conduct practices. But judges created them about a generation ago, and claimed they were law. So why do they consistently avoid them, except when judges or the bar are applying them against non-conforming insiders and all other outsiders? Despite a state constitutional mandate to vote on whether to hold a constitutional convention each decade, the last five or so ConCons have been not scheduled in New Hampshire. This happened following the procedurally deficient ‘constitutional amendment’ was inserted into the state Constitution by judges. That amendment is in the appendix — about the force and effect of court rules as law. In addition to a lot of other rule-loophole, the rules overall were intended to be ‘flexible’ and imprecise, so they could be twisted to favor or punish, depending on who they are applied to — friend or foe? Supreme Court Justice Sherman Horton testified at the Impeachment hearings: We wrote those rules. We didn’t think they applied to us — testified Judge Sherman Horton.228

2. STATUTORY FRAMEWORK AND LEGAL PRESUMPTIONS

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The basic elements for proving a case come from written statutes — for example in family law, the elements and prerequisites are written (not easy to read and pick out, but they are established in writing). For example, the wiretapping statutory framework provides ‘elements’ that have to be proven — for making a criminal charge to be tried in court. If the case facts don’t meet the criminal elements listed, the case should not be filed and it gets dismissed.

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IN ADDITION TO STATUTORY ELEMENTS, THERE ARE LEGAL PRESUMPTIONS TO CONSIDER. We’ve already talked about rebuttable presumptions and burdens of proof early on in this chapter. Here’s a more concrete example of how building regulations affect landowners under the law. It’s not a trick, per se. It just developed and routinely is enforced this way. Zoning law may spell out that the landowner will be responsible for proving he is not in violation, when cited by a building inspector for improper use. The heaviest burden of proof at trial is shifted over to private landowners to prove they are not guilty — because state policy helps towns close down non-conforming uses — even grandfathered ones.

228 July 6, 2000 New Hampshire House Impeachment hearings.

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So why do I not get exorcised about building regulation, but do get exercised over child abuse taking cases? For me, it’s a matter of constitutional degree.229 Both presumption examples shifted the burden of proof from the state to the individual. When push comes to shove, both impinge on a constitutional right — to own land and to raise children. Does the presumption relate to a fundamental or natural right? Or merely a social policy or trend? How great is the burden that is shifted? I’ll look at these things and weigh whether or not they are worth fighting to change — or whether the burden is one that is okay to put on society, as a cost of doing business in society (or being a part of society). For example, some people have trouble accepting driver’s license regulation and feel they should be able to drive anywhere, anytime, within the United States. I don’t personally see the objection to vehicle and driver registration — these are deadly machines, and it’s acceptable to me to require them to be registered. Are police sometimes misusing registration? For example, recording citizen movements from place to place by photographing all license plates in a shopping center — using photos and drones? Yes, but that is a different issue — based on misuse of licensing information, but actually about general spying and tracking on all citizens, which is a different constitutionally offensive issue. Now, photographing my yard with satellites and drones? Sorry, I think that’s really constitutionally offensive. Whether the drones are operating under state law (local sheriff’s department) or federal (homeland security) it offends my sense of personal privacy. Even with nightclub acts of homegrown jihad terrorist acts, or a plethora of pot farms, I don’t see the government interest is high enough and immediate enough — to make these broad sweeping invasion of privacy drone searches across widely populated communities. You want to drone search the southern New Mexico border desert (now a national park) that’s something else. Some middle level post-office employee in Las Cruces decided to eliminate general delivery mail services for all of Arizona and New Mexico. I also thought that was worth fighting for, and was worried no one else would know how to do it. Took about 40 hours, but your and my general delivery mail addresses are safe for now. We each have to pick our battles. That’s what having a conscience is all about — testing yourself enough so when the time comes for you to figure out what’s really important, You can then trust yourself. In a world that has too many issues, too much government, you have to choose when to stand ground and when to let it go.

3. DEVELOPING A GUIDE FOR WHAT’S WORTH FIGHTING FOR — (a) That little pocket Constitution is one of my guides — and I find it offensive that judges feel commoners who read and know it, aren’t educated or sophisticated enough to be able to tell what’s constitutionally legal in a court of law. Some judges don’t want to follow the Constitution because it limits court power to do what they want. They have spent a half-century coming up with law-theories for why they can suspend the Constitution, or ignore cases where defendants try to assert Constitutional rights. These unwritten judge techniques pretty much have closed out whole blocks of constitutional rights that people can’t get to. Habeas corpus, for example. First Amendment speech for lawyers is another. Both these examples are deconstructed in this book. A whole lot of administrative cases slip around the Constitution unnoticed. So yes, the Constitution is devalued in courts across the land, but does that mean the Constitution is really dead in the land?

229 And my own sense of morality and my God-pact. Trying to keep everything under control is impossible and a waste of energy. Energy is precious. I am convinced now that it is better to enjoy and glorify God, rather than have a tidy and structured life. So I choose what to battle more carefully now, as a priority in my second half of life.

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Judges say there are too many people asserting Constitutional rights. Dang right there are too many — because judges and prosecutors have been running little fiefdoms, ignoring constitutional protections, legislative protections, in hundreds of areas of federal and state governments. They just do their imperial judgeship act, and poof, constitutional rights get obliterated. And they don’t like us noticing what they are doing. Poof again. Lots of legal-process harassment created for dissidents of this insider-power process. (b) Of course I know that they were trying to teach me the lesson. To stop noticing what Insiders are doing and to shut up. Maybe it’s in the genes. I can’t do that, shut up that is, when what they are doing is so hugely immoral and causing so much pain and hardship for everyone else in the country. (c) Family is an easy one — they come first after God. I think family first is good motto for the country. Women and children are the easiest prey of corrupt courts, right after probate wards, and just before bankruptcy debtors. Judges and lawyers are preying on the weakest, most trusting and vulnerable individuals in our society. (d) For others, their guide might be something religious or spiritual — the Bible or the Koran or Mao’s Sayings, or whatever. If they are lucky, maybe it’s someone they love and admire. I know lots of people who put political issues right up there, but that’s a pretty fickle and changing guide. (e) I think a spiritual guide needs to be an external source — in order to test our ideas and decisions and help us hold ourselves accountable. It doesn’t work if your system holds everyone else accountable but not yourself. You have to start somewhere. Home is easiest. (Try a prie dieu). God is the fastest.

4. ONE-SIDED APPLICATIONS OF PROCEDURES, RULES AND LAW Judges can be tyrants — in some cases and against some parties. When a judge decides to hammer a defendant in a case, one of the most prevalent patterns is for them to strictly enforce or misuse court technicalities or rule against only one side.

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Court Rules are easy for them to abuse because of the legal concept of “judicial discretion.” Infractions and biased handling will be informal, not recorded, and they often fly under the radar of the appeals court and the conduct regulators. Fair administration of court rules is not required as a condition precedent of a fair trial. Why not? Because the Court branch of government decided to give lots and lots of individual discretionary power to each trial court judge, and then the oversight-judges refuse to review and check and correct the resulting abuse that regularly occurs.

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This is the judges system judges developed for themselves. It’s not in the Constitution, and it violates the Declaration of Independence. Congress doesn’t look. Individuals are made powerless in their own separate cases. Maybe they can be effective together?

EXAMPLE ONE: WHOSE A PARTY IN THIS CHILD’S CASE? After three years of litigation, a judge barred the custodial paternal grandparents from the courtroom stating that they were not ‘interested parties” and therefore not entitled to be present under law. There are a lot of ways the judge could have handled the new DNA evidence issue — but this brand-new replacement judge picked the one that went with the outcome to exclude them. After years of legal arguments, the new judge abruptly announced at hearing that he was barring the paternal grandparents (who had legal custody of the child) from further involvement in a case that he said was confidential and sealed from them. The judge ordered the grandparents to prove they were bonafide parties in interest to the case, even when — a. They had physical custody of the child for two years. b. Their son was the named father on the birth certificate and had paid years of child support; he lived with his parents who had legal custody. c. The case involving agency handling and mis-handling (failure to investigate) sexual and physical abuse against mom; the grandparents did this investigation and proof privately. 472

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d. Four years later, mom claimed the child’s father was really someone else. e. The mother raised paternity three years into the case, and she instigated DNA testing to keep from paying child support. f. Despite ongoing predator patterns and State attempts to rehabilitate the parent, private experts opined the child was not safe; None of this was proof in this judge’s book. He found they were not interested parties. There are a lot of ways the judge could have handled it, and he used his judicial discretion to initiate the so-called nuclear bomb ruling.

5. STANDING AS A JUDICIAL SWORD TO KEEP INTERESTED PARTIES OUT OF COURT. Thirty years later, there are a plethora of new legal arguments about standing — rights recognized for presumed fathers, putative fathers, imputed and implied fathers (and therefore grandparents). There are new estoppel arguments and unwed sexual partner claims, as well as same-sex partner claims for children of the other partner. But back then, I knew the judge’s decision was just wrong and manipulated — but I couldn’t find a key in law to unlock this judge’s biased pre-determined, outcome based decision. The state agency attorneys and social workers had for years tried to eliminate the grandparents from the case. Grandma and Grandpa were troubling litigants to the state, because they ‘discovered’ the black-and-blue physical abuse, and later confirmed the sexual abuse; they were bent on protecting a badly damaged child. They discovered, confirmed, and used first class child sexual abuse experts from Dartmouth Hitchcock Children’s Center. The first judge held a private chambers session to commend them for their extraordinary efforts when the state fell down on its job, he said. Grandparents investigated past harms, presented witnesses at trial, and presented more evidence of on-going trauma to the child. They pursued treatment. We had to fight the seven state attorneys and workers for every protective ruling for that small child. The state workers’ bias toward a neglectful, pedophile parent was a mystery for awhile, and I suspect a manipulative personality, such as bi-polar mental illness, that has a known propensity for manipulating authority figures and mimicking so-called normal social behaviors around authorities. Victim classes. For example, the state required mom to attend a class for mothers of children of sexual abuse. Victim classes! Putting a perp into a victim class taught the language and posture to a perpetrator. Did it teach empathy? Can empathy be taught to a person with this kind of mental condition? It was a dangerous move for the child — re-casting a perp into a victim.230 Once the original judge was replaced, the second judge almost immediately eliminated all claims by grandparents/ father through DNA testing. At a minimum, it was a four-year imputed relationship, and the child lived half that time with her imputed father/grandparents. He was on a path to eliminate any interaction with the now un-married un-father and his now un-grandparents. After that, it was one sua sponte ruling after another,231 and we were left with only the blessing that the child was four years older and now was verbal and could tell someone (hopefully) if she was abused again — scant consolation for a heartbroken father, grandparents, and a badly damaged little girl.232

230 This was an amazing case of pursuing state reunification goals — where they sent a perp mother to a victim-mother support group. She learned all the lingo and postures, but continued to put the child at risk. 231 Nashua District Court confidential matter (1982). 232 The newly discovered DNA Dad has been a secret sexual partner, and knew for years the child might be his child. He avoided child support and allowed another man to pay for years while he took no interest in the child, and made no action, until Mom dredged him out four years later as a litigation tactic. When the grandparents were tossed from the case, the state was acting to “reunite” DNA-Dad as the child’s “real” father. So the judge cooperated with the state attorneys by tossing the longstanding (cuckolded) putative father and his parents from entering the courtroom and from the case, and removed the child from their longstanding care. Even back then, there were a lot of options, but the judge used discretion to implement a nuclear one.

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EXAMPLE TWO: STATE SECRECY COURT RULES A parent challenged state agency statutory secrecy rules (similar to the rules used in the Nashua case above) that in no way affected her child, but served only to protect judges, state employees, and state paid attorneys in cases. She claimed the rules violated even the state’s own law on secrecy in court proceedings and records. At the next monthly Court rules committee, the state supreme court attempted to pass a new court rule to shift the burden of proof. Had it passed, the new rule would make parents responsible for proving state secrecy was harmful to the child. This court rules committee routinely monitors cases on appeal, and then drafts new rules to end-run the parties’ rights and appeal process. This is just backwards thinking. Parents are not the enemy here. But judges, state attorneys, and court rules committees see parents’ rights as secondary (if that) to their own unfettered state authority.

6. JUDGE EULOGIES Ol’boys will eulogize about a judge who is demonstrated to be tyrannical, here are sample phrases they have used about blatant tyrant judges: The court doesn’t see him as controversial; He has extensive experience; He’s one of the most knowledgeable judges we have. All double-speak. They proclaim similar praises, deflecting the criticism, and acting as thought-knowledge and experience are a deterrent to abuse of power. They are not mutually exclusive. I suspect that exposure and reform will begin with profiling judges independently in some public forum to expose and perhaps stimulate the removal of such consistently activist abusive judges. Meanwhile, the damage caused on families and individuals is unpardonable — creating tragedy that can be permanent and irreparable. To be a deterrent, the judge’s profile and complaints must be public, with some relief or punishment attached. Absent some external reporting, there is no threat to judges or ability to pressure for change from outside.

CHAPTER

WINNERS AND LOSERS

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JNad testified to a Legislative committee that he conducted annual reviews of the district court judges under his administration. When he was asked who reviewed him? he said I review myself and I always get very good marks. Undoubtedly. Too bad no one wanted to see my reviews or any of the 70 or so other litigants that showed up to oppose his nomination to the Supreme Court. The people he routinely abused didn’t give him good marks. In rebuttal, he told the Executive Councilors who confirmed him, that the people testifying against him were “losers.” But why doesn’t this industry hire outside professionals to test, evaluate, and do bonafide performance reviews that actually mean something? Because it threatens judges. Hint: To document one-sided biased applications, I suggest making a quick chart of rulings from the bench during each hearing by subject matter. You can do the same thing for name-calling, sua sponte rulings, whatever seems to be this judge’s pattern. At hearings, if I begin to suspect one-sided application of rules by a judge, I use the left margin of my yellow note pad and a red pen to annotate my notes, making chicken-scratch marks by each violation and + and — signs to quickly indicate whether the ruling is favorable or unfavorable. An objection must be entered on the record in each violation as soon as possible and during the proceeding, to preserve the issue for appeal. Practice Tip. You can put the disparate treatment into a chart — elaborate or not. Spreadsheet style. Add dates and times. Maybe add the exact language later. Prepare and wait for the right time to use it. Perhaps in an oral or written motion to remove the judge. You can’t take a judge out with a pea-shooter. So you want solid confirmable information, 474

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not hunches. This chart is taken from a mix of case examples we’ve already covered. In each case, the judge was overly harsh with the outsider, and ignored insider violations of the same issue. Who

Rule Violation #1

Violation #2

Violation #3

Violation #4

Violation #5

Stand when you address the court

Tardiness & being late to court

Leaving court during trial

Give your financial affidavit to opposing party

Failing to provide discovery

The Plaintiff

The Judge never noticed. There were 3 violations.

Judge never noticed — 45 minutes late from lunch (The judge was late also.)

No violations

Gave affidavit to judge & refused to give a copy to wife. Her copy had zeros. Judge waited until after her ruling) 3 weeks.

Judge overlooked & did not address

Plaintiff Attorney

Never stood. Judge never noticed — 7 violations after the judge reprimand Δ for this offense.

Same as P.

No violations

Not applicable

Judge ignored all attorney misrepresentations

Defendant, pro se (Δ)

Judge sanctioned 3 x’s until Δ remembered to stand; judge also threatened to default his case if he didn’t stand.

Judge scolded and fined Δ $750 for lateness at a GAL meeting a week before.

No violations, but the judge threatened to preclude from the courtroom for the rest of trial if she even went to the bathroom.

No violations

Judge sanctioned, daily $500 fines, shortened time to trial, jailed, fined, ordered an illegal search of home for ‘discovery’ by the opposing attorney

100’s of police officers coming and going daily Judge did not notice them.

Not applicable

Issued enabling orders to delay turn over of discovery until just before trial

P’s witness or spectator

But ignored all the other parties greater tardiness

Several hundred, no comment

While each rule may be acceptable for a judge to enforce in the courtroom, the bias enters with the judge’s selective enforcement or avoidance (based on court status of the individuals involved.) Improperly using the exercise of judicial discretion. Both parties routinely violated rules or protocols, but only the pro se or the dissident gets harshly treated. Insiders and court favorites get lax or no discipline. They are not even crossing the judge’s radar. The judges in these 5 case examples are laser-focused on the non-insider. The pattern of enforcement (major rules of substance and minor rules of court etiquette) work to systematically terrorize, punish, and harm only one side to the dispute. Judges are not to use their discretion to override rules, because rules are limits on a judge’s authority. So this kind of illegitimate ruling happens in the fog of court. This judge bullying is a matter of unethical bias and abuse of authority that goes recognized.

7. COURTYARD BULLYING Picking on someone in court — a vulnerable person without $$ and power is courtyard bullying, also the scrum thing, and the atmosphere of hostility and disrespect. Judges get away with this daily although there may be dozens or even hundreds of instances in a single case that are not identified, documented, disciplined. There isn’t any public demand or court rule that judges to treat people with human decency, courtesy and respect. That needs to change.

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COURTS DON’T PROVIDE OMNISBUDSMEN The legislature could enact a provision to fund an external person to receive judge complaints, track them, and work to fix the case injustices.233 Presently internal reporting within the legal system only notifies the court rules committee, who moves to avoid and cover up loopholes in judge power. Judge ethics rules then are changed — to continue abuses without exposure. Appeals don’t work or help the defendants who have been unfairly treated and abused. They will result in dismissals that evade the judge’s abuse — based on manipulated legal concepts, including harmless error or the power (unfettered) of judicial discretion. Ironically, once a judge’s bullying is made public, the legal system may take pains to honor or award the very same judge with public recognition, to shore up public confidence ‘in the judiciary’. Both judges Brock and Gray got nominated for national professional recognition after exposure. So did the state court IT guy who reprogrammed the Sustain data to mix private and public data together. While undergoing impeachment, Judge Brock was elected president of the national chief judges organization at the time of his impeachment trial. It’s like they are living in a cloud. Some of the worst-offending judges volunteer for the Bar conduct and disciplinary committees — Judge Coffey headed up the State Judicial Conduct Committee in one capacity or another for years. It was probably her best insurance. Bill Brennan was on the attorney Professional Conduct committee. Probably the same idea, although I know he tried to use his committee position as a sword against other lawyers, including me. Once you recognize the patterns of bias at trial, the joke of having a trial emerges — the trial experience is to make you ‘feel’ like justice is being served. As Judge Gray told me, he would give the “appearance” of justice”. It feels like coerced tyranny where the parties act extremely civilized, even when they know the judicial deck is stacked against them and the trial is a charade. It’s so Henry VIII-th.

8. MAKING UP RULES — BASTARD LAW

CHAPTER

When a judge has power and authority to make his own rules, those rules are not anchored to the rest of the body of law, the judge creates a bastard law. It just hangs out there unless he can get it anchored to other cases. So he may begin to repeatedly use the bastard law over and over again, attempting to create legal authority. But it is like building in sand. That kind of law is not only unreliable or nonsensical the first time it is used, but it gets progressively more dangerous each time someone adds onto it. The first judge is just trying to shore up shabby law and logic until he can get it accepted as bona-fide law of the land. But it is a poor legacy. Erroneous law is still bad law — whether the authority is cited once or a hundred times.

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One example I came across in writing an annual treatise supplement (the publishers would issue updated family law changes each year to book subscribers) was the bastard evolution of spousal support. It used to be permanent; then one case ordered limited-time “rehabilitative” alimony, under the unscientific, unproven premise that all women could be equal earners with ex-husbands within a short time after divorce. It was fall-out from the feminist movement of the 1960s — when women were looking for equal pay for equal work. Remember who the class of judges were — are — and the motivation to use part of the woman’s cause for their own economic purposes — but not all of it. It was a pick and chose that impoverished women and children all over America. Whew, aren’t we all lucky that the growth of welfare emerged to fix the economic problems these judges created? Anyway, New Hampshire judges seized on this rehabilitative concept. They were pushed by one woman family law attorney who often represented husbands who didn’t want to pay support. Who does? After a few cases and lots of rhetoric at legal seminars, the judges just jumped to three-year rehabilitative alimony as the standard. Life-time spouses, age, physical condition, and standard of living — often nothing impacted this 3-year pattern of ruling. Within a decade, no judge would order permanent alimony.234 233 Note — I am not advocating state legislatures or Congress pass something like the ill-advised federal sentencing guideline legislation of Rep. Tom Feeney in 2003, which clearly is unconstitutional interference. This is discussed in the 7th chapter on Sentencing — the tension of the court with the other two branches of government. 234 Except of course, the single case in Claremont that my attorney friend found so hilarious. That was a judge hard-on for the husband.

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The easiest way to deal with bastard law is to deem it “not for publication” telling the world that it is not legal precedent. The excuse is, ‘it was based on special circumstances’. Maybe.

9. PROTECTING ONE-SIDED USE OF RULES This sneaky judge trick takes the one-sided application to the next level. The judge uses his authority to set the stage for the final Insider triumph. Orders will seem neutral on the surface. Experienced trial litigators understand however how they are to respond and support the trial judge’s unusual, premature, or one-sided advantages bestowed on them. I guess it’s an extension of jumping on the bandwagon, but the judge becomes an advocate.

10. TIMING THE TRIAL ABUSES THERE ARE THREE TRICKS TO TIMING: WHEN THE TRIAL IS SET AND HOW THE ACTUAL TRIAL IS CONDUCTED. Trick 1: Rush to trial. My divorce trial was rushed and unnaturally fast. Both Chuck and the Judge knew the result, so why linger? Besides the largest asset was distributed the first week of the case. a. In April, just before his removal, Judge JNad issued a peculiar sua sponte order. He set the trial date for September, and then ruled that any temporary support I was to receive would be terminated if the final trial was postponed for any reason. He also made a provision for me to repay my support out of my property award. b. The libel was turned into court the week of Thanksgiving, but not put into the court record for almost two weeks. (The judge told the clerk of court to keep it in her desk drawer, then he assigned it to himself. He told her to fax him everything in the case at his home.) More unique, special handling. c. The April hearing was to get discovery compliance orders — critical discovery was controlled by my old firm, and that included all the business records necessary to have an expert value the law practice. Discovery was stonewalled. So my defense-side-of-the-case was nowhere ready to set the case for trial. The general Insider litigation rule is to rush to trial, while withholding production of discovery to the last minute, if produced at all. This technique is called ‘running-the-clock.”

TRICK 2: ENDLESS DELAY. On the other hand, dragging a case out for years generally benefits the rich insider or corporation or the team that will have to pay-out after trial. A product liability case or personal injury case or even a breach of contract case, can drag out forever because it squeezes the poorer party into a cheap settlement. Those that are not being paid monthly, in the end, just want the litigation to go away. For the others, it a paycheck as long as the case continues. It’s expensive to hang on for years in litigation — money and stress, so lawyers like to drag the case out a long time. So they collect fees all along the way or at the end in a big lump sum off the top.

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TRICK 3: TIMING DURING TRIAL. Mike Rubin’s first trial235 was a classic parade of SJTs and we follow it in several sections. He reasonably tried to get a continuance of the April 15th trial so his CPA expert could appear and for a new attorney to prepare. The Marital Master Harriet Fishman refused to grant a continuance. He proceeded alone and the Master cut down the trial from five days to three hours. She promised equal time for both parties. During the time allowed to him, the master ordered Mike (now in pro se) to take his boxes of documents with him to the witness stand. She kept interrupting his presentation to insist he find a document to refute opposing counsel’s offers of proof or her questions to him. In one instance, he was not allowed to put in his 3 expert valuation reports until he first 235 In the Matter of Nancy Rubin and Michael Rubin, Rockingham Brentwood Family Division, Docket 00-M-212 (2001).

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disproved the attorney’s offer-of-proof lies. Mike said he wasted 11 of his 23 minutes trying to find documents in respond to the judge’s demands. In the end the judge refused to allow Mike’s exhibits of his three expert reports of valuation. (Remember, his CPA could not attend because trial was April 15th and the judge refused his motion to continue.) Mike contacted me after this huge trial loss, including his business and his house (that he bought before the marriage). I ordered the trial audiotapes. He analyzed them — his wife’s attorney took 135 minutes, leaving 23 minutes for him to present his case. There were also three “blank” sections on the court record relating to sections Mike claimed supported his version of the case. (Like President Nixon’s secretary, Rose Wood who transcribed with gaps.) a. The first blank was during Respondent’s cross examination of the petitioner236 at the point where her testimony was impeached because she testified she paid all the household expenses with only her own income ($2,000 take/ home/monthly) but her checking account showed deposits of $27,000 (far beyond what she personally earned or had disclosed.) b. The second “blank”237 was where Respondent testified he had provided copies of three different market analysis of value to opposing counsel — but the attorney objected to their entry as trial exhibits claiming she had never seen them before. The judge shifted the burden of proof to Mike and gave him the remaining 10 minutes of trial to produce “proof” of his mailing the documents. He had personally dropped them off at the law office but couldn’t find anything in the boxes in 10 minutes to prove the opposing attorney had made a false claim of discovery abuse. Needless to say, Mike never made it through his presentation and the judge’s interruptions and papershuffling was disconcerting and interruptive and ate up his presentation time. c. The trick here are multiple — the attorney lied in her offer of proof/attorney testimony (but her statements and offers were accepted at true without any documentary evidence or expert valuation), but the judge refused to accept the husband’s three written expert exhibits of value because he couldn’t produce (in 10 minutes) documents to prove they had been previously produced to the attorney. Mike found the requested ‘proof’ — a receipt signed by office staff — after trial, but the judge refused to accept it. Attorneys can say anything as true — but the pro se must then disprove the attorney lie with documentary evidence. All on the fly. d. This handling not only shifted the burden of proof, but imposed an unreasonable burden for a civil case, then the judge (by precluding the defendant’s expert evidence) used the wife’s incompetent evidence (unsupported attorney statements) to make a ruling divesting the husband of his pre-marital business/residential property in favor of the wife — despite the weight of the evidence in the record. That, to me demonstrates a lack of fundamental fairness and judicial bias. On top of it, there was the disproportionate allocation of time, the refusal to grant a reasonable continuance, and much more, but those tricks falls into other sections.

CHAPTER

Mike is an unusual client. He’s street-smart, tenacious, and courageous. His gut knew the trial wasn’t fair, and the judge wasn’t fair; but he was alone in a notoriously biased court where even the local attorneys said they couldn’t win with this judge-attorney combination. It’s the triangle offense trick.

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11. ADMINISTRATIVE RULE-MAKING. There is a whole body of law that doesn’t come from the state legislature, the courts, or the Constitution. It comes from bureaucrats, like those folks that had the office next to mine when I worked as a state bill-drafter at the NH LOB (Legislative Office Building). Each governmental agency is required to compile, index and publish all effective rules about how they operate — so there will be a three-ring binder for each state and federal agency. The process for adopting rules is a two-stage process (first stage is public notice, comment and hearing; then it goes to a joint-legislative committee for passage/ enactment.) Rules are usually initiated or proposed by the agencies, so will have a state/agency bias and may not be constitutional on the face. It’s a tough challenge and the agency side has a lot of agency resources and salaried staffers to protect turf and rules. Senators and Representatives have influence, so you may be able to call on them if you find a rule that seems unfair or unconstitutional. Examples of department/agency rule are scattered throughout the book. In particular, they don’t use regular court rules — of evidence or civil procedure for example. They are willy-nilly, and often disregard due process and fundamental constitutional rights. 236 Tape I, Side B, 25 minutes into play 237 Tape 2, Side B, 24 minutes into play

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My experiences were largely with health and human services/family regulations, and as a bill drafter for the state legislature, I drafted occupational regulations for all licensed professions — except attorneys. Judges claimed in the 1980s that only judges could administer lawyers — which I believe is an enormous systemic mistake that led to the deterioration of justice because it keeps attorneys from being able to speak out without retaliation. There is no judgemistake/abuse/misconduct reporting. That brings us back full circle — to how poorly those judge/attorney regulations got drafted. I suspect vague drafting was intentional to give judge-rules maximum flexibility in application. That way judges twist outcomes to favor or disfavor according to who is involved. So the Court’s rules were drafted to bend both ways, are non-specific, and that makes them unreliable and unfair in principle and application.

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1. PROPER (AND THE OTHER) STANDARDS OF CONDUCT The standards that judges must operate under are found in each states court rules, and a general code of conduct.. There is something out there published for the public to look at. There are a few specific examples provided, but they are often not catalogued well, are without an index, and hard for the public to find and read. That’s the good news. The bad news is the rules are so overbroad, vague, minimal, and elusive. They can mean just about anything, depending on what behavior and what circumstances need to be covered up case-by-case. If the judge is nationally prominent, rules are written in such a flexible manner, they can be twisted one way to eliminate the complaint. If the judge is a Cuban-Hispanic female, they can be applied the other way to remove the judge. It can be the same rule.

IS ‘IMPROPER STANDARDS’ AN OXYMORON? The standard is a Constitutional one. Since 1974, Congress amended 28 U.S.C. 455 to reflect Congressional concerns that judges must not only be unbiased, but they have to avoid even the appearance of bias, and people should be able to disqualify a judge even in a state court case. Congress broadened the range of times when federal judges are required to recuse and provided an objective standard. If a reasonable, disinterested person could think the judge’s handling might be compromised or affected or there is an appearance of conflict, the judge is to recuse. The standard is M-I-G-H-T. No proof is actually needed, although I tended to over prepare for these types of arguments for hearing. Funny, it doesn’t have to be unpleasant, moving for a judge to recuse from a case. You can even ask them about conflicts and listen hard (on the record) to see if they disclose, cover up, avoid answering, or lie.238 Under the standard, you shouldn’t have to ask — the judge is to volunteer. I had to dig out all the abuses and omissions and lies years later. Maybe it’s a new specialty for private investigators — keeping book on judges who fail to disclose conflicts of interest.239 Failing to make mandatory disclosures of potential conflicts and relationships is breaking the law. But there is no effective reporting and enforcement process. By hiding facts only the judge and other party know, the judge actively deprives a party of information and facts necessary to prove such a claim. Then he systematically denies that party of a fair and neutral trial process. 238 See the § on Judges who lie. It is never called a lie. It is called a ‘misrepresentation.’ 239 Increasingly I see official bios of judges that are sanitized — or omitted altogether. Almost no one could find background on David Souter when he was nominated by Tom Rath and Warren Rudman for the U.S. Supreme Court. We had phone calls looking for any female he had ever dated — that would have been my sister-in-law, but it barely qualified as even a high-school date. Judges want ‘privacy’ even in a public office. Sigh. Wouldn’t we all? Anyway, the official judge bios are shrinking and not much help in id’ing undisclosed conflicts of interest.

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2. RECUSED BUT CONTINUING TO INFLUENCE A CASE Across the country, judges play games to stay on cases they do not want to transfer. They fail to disclose any kind of relationships with parties, attorneys, and others in the case because they want to stay in and help guide the case outcome. Or they get personally caught up in the case and don’t want to let it go to another judge. So they split-hairs and just plain conceal facts — whether the opposing attorney was a college-roommate, the wife was a secret lover, the attorney was a big donor, or any of thousands of relationships they do not want to publicly disclose. The problem is when the judge conceals a relationship, and sits, and you find out two years later in old bar newspapers that the judge sold the guy his law practice and has been making lucrative judicial appointments to him — using a whole body of biased rulings and orders, then understandably, the aggrieved party was all that biased judging to be reheard and redone by a new and neutral judge. Of course, all that appealing, and correction, and new trial is done at the expense of the victim who was scammed the first trial. Remember those building blocks we talked about in the first chapter? All orders and findings of fact, and rulings of law that support the first (unfair) result. So, in other words, when the judge hides a special relationship and manipulates the case for extract more fees for his friend, and the judge is fleeces the parties — to pay others in the country club, wouldn’t you want a new fresh do-over if you were the victim? Private investigators. I couldn’t afford more private investigators after the trash fiasco, but I found out about how the special appointee had represents the judge’s wife in a couple law matters, and how they were co-counsel for a number of other cases. Stuff that usually comes out after you hire or become a private investigator. Course for me, after I went public with my judge allegations, all kinds of people would read about the case in the newspaper and make quiet phone calls to me with tips and ideas where to look for proof the judge cheated by concealing a disqualifying relationship. It helps for disgruntled litigants to go to those sometimes noisy, messy meetings of people who are justifiably angry with what judges do in these case. Or within the legal system as a whole. They are perhaps the best places to locate resources and to find out patterns and practices of local judges.240

THE MAGICAL HAT TRICK

CHAPTER

The illusion that a biased or disqualified chief judge can shed his bias or disqualification by changing his hat is one of the jokes of law. White hats and black hats are classic examples used in law school to alter circumstances to force students to develop arguments about changes in applications of law. We also used green acres and brown acres as examples in land and property cases. JNad claimed he could act to name his replacement, though disqualified, by switching his hat. He could do things wearing his black hat that he could not do wearing his white hat.

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The same bogus argument went up and down the layers of judges in New Hampshire courts, and the exact same words and erroneous reasoning that occurred in my case, (including the same mis-citation language in case law) was claimed by two chief judges at the impeachment and other House Sub-Committee hearings. So judges are educating each other on how not to get caught.241 Chief Judge David Brock was my husband’s former law partner, and both served together on the state Supreme Court, as did Thayer. In Thayer, he was husband’s current boss. What this says to all us normal-people, is judges can’t be trusted — especially a chief judge with no oversight. They routinely abuse two categories of power — discretionary and administrative. Here’s how one legislative oversight committee handled the issue — they asked the chief questions, but didn’t follow up — see how Brock “clarified” — by mis-applying case law holdings, the rules, and common definitions of ‘recused’. He spun 240 Warning: sometimes the information circulated is not accurate or helpful, and DL’s tend to be justifiably very angry with the legal system, so as ever, do your own legal research and/or seek the advice of an attorney experienced in your issue, if you can find one. VOCALS is one NH group that meets at the statehouse. JAIL4JUDGES is a national group. 241 Many judges are practicing this same deceit. Even in my rural cowboy courthouse 4,000 miles away, I have seen an old, old judge say the same wordsI’m just doing ministerial acts and I can do that even if I’m recused. These guys are coaching each other in sneaky tricks at judge conferences and through their national judge bar magazines.

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words dishonestly, slanting them to create the appearance that he was allowed by established law, to assert authority when he was ethically not allowed to do anything that required discretion. Like making choices about who would sit on which case. It’s more than intellectually dishonest — it is dishonest in fact and law, as well as in the judge’s mind.

JUNE 23, 2000 Brock testified in the House Judiciary Committee. He explained in response to questioning by Representative Phyllis Woods,242 “it doesn’t matter, You know I was recused from Thayer. I had nothing to do with it and this was a ministerial act, exercising authority given the chief justice and senior associate under the statute. So there’s nothing to prevent you from doing — making such appointments…”243

JUNE 26, 2000 Representative Tony Soltani, who is also a practicing lawyer, re-raised the same issue three days later. Brock clarified, “Well, you wouldn’t be exercising ministerial powers unless you were a judge, but it’s — you’re not acting as a judge in a particular case when you exercise that ministerial responsibility.”244 But letting Brock off after the committee hooked him, is a lack of … testosterone. The argument was false logic, and illegitimate manipulation of words. It’s okay to call a spade a spade, but judges have been rolling legislators for years. Soldati’s deference in the face of verbal nonsense may be because he hadn’t read the cases … just political correctness. Or perhaps he hadn’t read the cases or know the law in this area. But even so — the chief’s answer was spin nonsense. Do you see how tricky judges are? And legislators are so … deferential. Under their white judge hats, Brock/JNad were not allowed to do anything except close up the file and give the file to the clerk of court for random reassignment. Most rules provide for the random assignment of judges. So a “ministerial act” is to put the documents in order and notify the clerk of court that he was recused and the case needed to be reassigned.245 It involves no discretionary acts, and applies the random-assignment rule about who gets assigned. Basically, both Brock and JNad did acts infused with discretion, that substantively altered the case outcome, even though they were disqualified from acting. Picking a successor judge (District court Patricia Coffey or any of the team of appellate judges in Thayer) were all discretionary acts in abuse of the rule. Is this just micro-management of over-controlling chief judges? No, it is systematic, and the case outcomes demonstrate it is purposeful and knowing abuse of judge authority. The status of disqualified means without authority to act — regardless of the twisted words justifying it or saving the judge’s face. And shame on the state supreme court, which possessed institutional memory of the same problems in other cases for two decades! (see three Blaisdell cases, and innumerable Bonser family cases for the same trick by JNad. Brock did the same thing in the Douglas appeal — he was disqualified but made special appointments of certain judges to hear my divorce appeals and my bar complaints.) They all knew, and avoided addressing this misconduct.246 Institutionally, these two chief administrative judges wanted certain cases to turn out a certain way, and by omission and weasel words, they used their special ‘chief’ authority to insure that the ‘right’ judges were appointed to hear the trial or appeal. It’s all a matter of assembling the building blocks. Stop in the face of judicial intimidation and ask what you would do if your 4th grader were to try the same language and reasoning on you — his responsible parent. You’d see through it, right? Grounded means grounded — and your 4th 242 Representative Woods is a very smart lady, but she is not an attorney, and this slight of hand verbiage sounded … well, legal. It was not. The ministerial exception did not cover discretionary judge acts, and Brock’s actions and influence went far beyond what was legal or proper. He chose certain compliant judges and assigned them to cases where an ol’boy insider had a huge stake in the case outcome. His ministerial acts were setting the stage. 243 Testimony of Chief Justice David Brock, House Judiciary Committee hearing on House Resolution 50, Bill of Address, June 23, 2000, page 57. 244 Supra, June 26, 2000, page 111. 245 See El Fenix de Puerto Rico v. The M/Y Johanny, 36 F.3d 136 (1st Cir, 1994); also 9th Circuit. 246 This of course, was a bitter point for me, but I write in detail about this intellectually dishonest chief. The other trick to avoid recusal is an old, abandoned legal argument from the 1950s, which used to be called a “duty to sit.” The concept was, no other convenient judge was available to reassign the case, or the judge was subjectively adamant that he was not disqualified, and therefore, the judge had a duty not to reassign the case even when there was an apparent conflict. I write so when it appears in Dubuque, Iowa or Tallahatchie, Florida, you will be faster and smarter than I to recognize and challenge it with appropriate local rule/law. Even the state legislators got rolled on this point.

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grader can’s just change his clothes and leave the punishment in his room with the old clothes and go out to play as though nothing was wrong. Wrong is what’s wrong. So re-form these illogical arguments, to overcome the tendency to trust the person being interrogated. The legislators’ mistake was in stopping one or two questions too soon. What going on here is intimidation — that overblown sense that a judge can say anything and it must be okay. A disqualified judge who hand-picks his successor can try to justify that it’s okay, but we all know that changing your hat doesn’t change whether or not you are ethically disqualified.

3. A DUTY TO SIT — NOT I try to over prepare for these situations by showing a judge-history of being unable to discern for themselves when they are disqualified. Guys who don’t want to get off a case say “I have a duty to sit on this case”, but the notion of a duty to sit has been eliminated as old fashioned and unreliable. Is it a fundamental personal right or not? Congress passed a law that broadened substantially the range of cases in which federal judges are required to disqualify themselves. The U.S. Supreme Court further has weighed the issue of how to fashion a rule regarding what the Justices called “a Constitutional due process right to recusal by state court judges”. See Caperton v. A.T. Massey Coal Company, 556 U.S. 868 (2009), Caperton v. AT Massey Coal Co., Inc. 129 Supreme Court 2252; Caperton v. AT Massey Coal Co., 679 SE 2d. 223; and Caperton v. AT Massey Coal Co., 690 SE 2d. 322. In my considered opinion, there is no reason for one judge to be appointed over another — if there is a problem — put it back in the clerk’s pool and let it get reassigned by lottery. Who wants to go through a whole pre and trial process, and have to go up on appeal? To waste client time and money, and court resources. Except it is not. Only the client’s resources are wasted. Judges spoon-feed the industry and it has become corpulent and obese as a result. If it is a special assignment to an insider by a disqualified chief, the case will drag out and be fatally impacted, so the wrong person wins at law, while the inside-players get unjustly enriched. Here are signals to look for: (‘course, this tactic is done in secret, so you can only look in hindsight.) Is there any undisclosed conflict of interest (remember, appearance of potential conflict is the standard.) Does the judge claim a duty to sit as reason to stay on the case? Does the judge pay semantics games with language to confuse, twist, and extend his authority?

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Has the judge secretly manipulated to interfere with the case after it was reassigned?

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4. DISQUALIFIED SEMANTICS Here is a list of words judges have used to cheat on recusal rules. They want to stay and play around in your case, but are disqualified. Disqualified means ineligible.247 So here’s what they have called it — Recused Removed Disqualified Disqualified but continuing to sit Recused but present Recused, did not participate Recused but participated Recused but present Recused but wrote the majority opinion 247 These waffle-words are taken from the actual wording of the New Hampshire Supreme Court judges in private case deliberations en banc, where recused judges participated anyway, in varying degrees of influence. Over approximately a decade. Potentially, they messed with thousands of cases, perhaps as many as 8,000 appeal cases in New Hampshire alone from 1989 to 1997.

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Disqualified but doing ‘ministerial acts’ included — Ministerial acts — clean up the file for reassignment Disqualified but appointing a successor judge Exercising a ministerial act as an administrative judge by changing hats Manipulating to do acts to influence the rest of the case after being removed

5. JUDGE RACISM — YOU MEAN THERE ARE BLACK ATTORNEYS? Judge Gray was caught by the Gadfly in another Rockingham case when J. Gray entered for the morning docket and found only an African American man in a suit sitting at the defense table. Theo was in the gallery. “I’ll be back when your lawyer arrives,” Gray announced, standing up to exit the courtroom. “I am the lawyer” the man replied. “My client is in holding.” Theo executed an affidavit and asked Judge Gray to withdraw, which Gray did. Just as a judge with racial bias only hides it until he is caught, — then what happens? Does the racism disappear? Just as a judge who claims he can hand-pick his successor as a ‘housekeeping’ chore — both biased acts are intellectually covered-over without dealing with the actual problem. You get the gist, and it applies similarly in any other biased social trait. I expect that men wearing tasseled or fringed loafers get better treatment overall in court than any other class of footwear. Economics and skin color send messages that these judges are attuned to hearing.

6. “DO YOU THINK I’M CORRUPT?” Question Judge Gray asked me when I challenged his ruling to remain on my bar-discipline case. He was specially appointed out of retirement by Chief Judge Brock to decide one of the many attorney discipline complaints against me.248 It wouldn’t make any difference what my answer was. Under club-house rules, the judge determines for himself if he is corrupt and he alone decides if he removes himself or stays.249 Human nature being what it is, judges almost never are able to see themselves as they are seen by others,250 and even those who do remove, often mislabel their removal as something else, to avoid a public acknowledgment of being caught in a conflict of interest, especially from other judges and the bar.251 Being a mirror. Judge Gray’s asking me if I thought he was corrupt, reflects what a tough time most judges have seeing themselves as others do. They seek approval. To the extent that I am able to reflect back to them what I see, it would be so much more efficient if I could use an actual mirror rather than word pictures I use to show why recusal is required. The distortion between what a legally educated outsider sees, and what the judge sees, is the difference between a fun house mirror and reality. So many judges hold distorted images of themselves because, over time they have been a part of so many insider games, that the distorted image of imperial power seems to be real. It is their standard. No one is allowed to speak freely or honestly under pain of retaliation. It takes a career-skeptic to unravel the hidden patterns — and doing so is a sure ticket to disbarment. Judges often claim their recusal will set a bad precedent for judge-shopping — a term used by the club to prevent people from objecting to the judicial assignment. But people objecting to a judge have almost no impact. Judge Posner lists several motivators for how judges act: 1. Judges want peer approval from other judges and attorneys. 2. There is a very, almost non-existent, concern about being reversed. 248 More than any other lawyer in the state, perhaps more than any lawyer in the country. 249 If he makes the wrong decision, it can be challenged immediately in a higher court, but if the case goes on, time becomes a factor, plus often higher court(s) will duck. 250 Judge Posner writes in his book, What Judges Think that the first motivator of judges is peer approval from other members of the profession. 251 See the editorial published about Judge Gray in the appendix.

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What a shame there is no mystery-shoppers for judges. People paid to secretly observe judicial competence and service, and then file reports back to owners or management to improve customer service

7. “I WAS WRONG.” (UMPIRE CALLS) Regardless of motivation, judges, like umpires, sometimes make bad calls. And like umpires, you will never hear them say ‘Golly, I just made a bad call. Here, let me fix it!’

WHAT CAN YOU DO ABOUT IT? First of all, if you know it was a bad call, you object and make a record of an objection on the spot. If you know why and have case or legal citations, say them slowly into the court record. Frequently the type of bad calls you should worry about are those made orally on the fly in a courtroom in a situation where the judge knows who he is helping to win and who is suppose to lose — so the record will have to trend in that direction throughout the case. Practically speaking, even a corrupt judge just can’t ignore everything that’s happened and then issue a biased ruling that goes against the flow at the last minute, (which is why building blocks and FOF’s and ROL’s are so important). They build the bias in step by step. This is not to say this circumstance occurs in every case. Some judges will undoubtedly claim they strive for fairness much of the time. Some, all of the time. But it’s hard to be a good judge all the time. The only data is massive anecdotal evidence that outcome-based decisions are handed down on all over America on a regular basis because there are few controls to stop or punish this judicial practice.

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Maybe it’s human nature, but judges who have established a reputation for abusing their authority, playing sneaky tricks, and favoring insiders over ordinary citizens often make bad calls orally based on how the case is suppose to come out. The trouble is, a judge might get his knickers in a snit because the bad call can be really obvious — not based in law — or contrary to fundamental legal principles. Judges who know their rulings are patently untrue tend to be sensitive about being called out about it. And so it can be a dangerous proposition. Either way, you stand to lose for unfair and improper reasons.

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BAD CALLS Judge Betty Gallegos in Taos, New Mexico once commented when she was publicly criticized for a creative sentencing scheme involving wearing pink and blue hats for DWI and DV public service,252 I’m not crooked, I’m just incompetent. While I happen to think the reverse, the mirror she holds is an internal one — and this lack of transparency and oversight for judicial behavior reflects a fatal flaw in the system. Similarly, former Clerk of the Supreme Court Howard Zibel, on one of my many trips to the state Supreme Court for records, confided, Caroline, we’re not as evil as you think. So his assessment of evil — is relative to what? I’m looking for zero tolerance because I see the human destruction that these privileged guys dish out to others, and it sickens me. Evil? I’m not assessing evil, but what judges routinely do in court is not even on the spectrum of good in the world. Goodness and other virtues have to work around judges — not through them. Ooops. One judge in a California case253 of two cousins (one was a juvenile) were tried separately in an attempted car hijacking case. The juvenile case went first. The defense attorney in the second case wanted to review the juvenile 252 The court found that ordering a DWI defendant to put a neon DWI license plate on his vehicle as a condition of probation was abuse of judicial discretion, as was ordering defendants to clear highway trash or get a haircut. I think of these types of judgment calls as maybe dumb or ill-advised judge tricks — but not sneaky and not immoral or unethical, as most of the tricks in this book are. 253 One of the cases studied by the Mercury News investigation, supra.

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trial case for inconsistent testimony. Judge Thomas Edwards claimed ‘confidentiality rules’ precluded that — but said he would read the record himself to see if there was any exculpatory Brady material. He later wrote he had reviewed the file “for anything that might help the defense cross examine witnesses at trial” and “nothing in the record met the standard.” The second cousin was convicted, and sentenced to 62 years to life in prison. His attorney on appeal asked the appellate judge to also review the juvenile transcript, the same as Judge Edwards. There was no transcript — it had never been transcribed. Edwards had wrongly implied he had reviewed the witness testimony in the juvenile case and found nothing exculpatory. Judge Edwards denied the defendant a fundamental right to cross-examine. “I didn’t intend to mislead anyone in the case,” Judge Edwards said. “The bottom line is trial judges are not infallible and I dropped the ball.”

Notice the same use of third person narrative254 and the weak word — ‘mislead’? Edwards talks about his “intent” but not about his actions. Note also how he moved his answer into that wussy, manipulated area of state prosecution for ‘obstruction’ and ‘thought crimes’ — an area of law that gets manipulated by bar prosecutors and judges to mean whatever the agenda wants it to be. Almost across the board, this genre cases cry out for heightened external scrutiny as to their true legitimacy. The only responsibility Edwards assumed is that he ‘dropped the ball’ — a sports term, designed to convey the impression of a mere fumble or unintentional mistake. But Judge Edwards avoided acknowledgment of his calculated and deliberate written lie in a court proceeding. It was arguably a material lie to disfavor the defendant, which hid potential Brady material for exoneration. He also evaded acknowledgment of the force and effect of his office delivering the lie. He actively avoided taking real responsibility for an act of lying that helped convict and sentence a teenage kid for 62 years in prison by denying the kid the process he took an oath to uphold.255 How judges see themselves. The difference between a conscious lie and a self-justification lie is about the process of how people rationalize their own mistakes.256 The hypocrisy of judges is that they do this as they sit in judgment of others — applying much harsher and unrelenting responsibilities to others than they apply to themselves. Psychologically the term for the lack of compatibility between a judge’s beliefs and his acts is called dissonance.

CHALLENGES TO A JUDGE FOR CONFLICT OF INTEREST. Unless the assignment of a particular judge to sit on a case is a random act — by lottery, draw, or other non-human process, the assignment of this judge should always be open to question. But under club rules, challenges are considered hostile acts. It is considered improper and a rude act to challenge the judicial assignment — because judges have a mandatory, affirmative duty to disclose and remove themselves for conflict of interest and bias. But they regularly break this ethics code. It’s an honor system that routinely doesn’t work. The rules are weak and ineffective, and are circumvented anyway. That’s why both the rules and the accountability should be external to judges and courts. Judges aren’t enforcing their own rules for themselves. They have demonstrated they cannot be trusted. It’s time to set up legislative oversight — staffed by people with no allegiance or obligations or duties to judges, who are not afraid to review what’s going one in courts. This insider process is a triangle — because often the judge has some personal or professional interest. Under Attorney Kennedy’s triangle defense theory, both the lawyers and the judge should be expected to side against a pro se. The prosecutor-trained-judge will side with the prosecution team against a criminal defendant. The defense attorney may 254 This is a technique perfected by President Nixon and Henry Kissinger about major Constitutional crimes and war crimes. 255 This is the same Puritan-Witchcraft-trial-thinking that mandates an accused/convicted person make affirmative acknowledgment of the correctness of the tribunal’s ruling (to save their immortal soul, but not their corporal body, which will be burned, stoned, drowned, or just branded or shamed as long as the person lives on earth.) 256 Carol Tavris and Elliott Aronson, Mistakes Were Made (But Not By Me), Harcourt Books (2007).

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cave into to judge-prosecutor alignment, then the defendant is alone, although still represented. That was the Tommy D. case. By taking out the Gadfly (that’s also what happened to Candace McMinn) because her judge overly-identified with the attorneys from his former eminent domain department. Insiders double up against non-insiders. That’s the triangledefense. Two sides gang up against the third weaker side. There is no satisfactory or completely effective mechanism in existence for insuring an impartial judge — so if the judge is hand-picked and specifically appointed, it’s good to ask, investigate and challenge — the judge probably will refuse, but you may be able to file an interlocutory appeal for “superintending control” or a higher court review of the judge’s denial. It’s a tremendous expense and injustice to go all the way through trial and wait for appeal to challenge a conflicted, biased judge. By then, it’s too late to undo all the set-up rulings, (like keeping out your evidence and denying you access to defense witnesses, or getting your Brady material.) From bitter experience, I wish I had insisted the attorneys challenge Janice Sterling as the specially appointed replacement judge in my brother’s cop-case. Each attorney was reluctant to do so (they seemed afraid) even though the last attorney had been in the same law firm with Sterling, and the reason seemed non-threatening. I recommend making this appeal at the front, if it means a new, hopefully more-fair judge. Paying for one interlocutory appeal up front, is far less than paying for a decade or more of post-conviction appeals after a biased trial. You can’t always tell in the first meeting —(under some state judge rules, you have to challenge and demand for a new judge based on conflict or bias at the first hearing.)257 But that’s often too early, and this assignment is the most stacked card in the whole deck. Judges will make you feel rude — or somehow infer that you are improper for asking for them to make a disclosure at the start. Don’t. Remember the rules they write for themselves; the bad judges won’t voluntarily follow them. Then they’ll argue and you’re not supposed to argue back. You’re the outsider and are supposed to therefore be inferior. I no longer accept those tactics, and I now require the appearance of mutual respect. Judges and lawyers expect an outsider to know her place — a lower, lesser place than theirs in court. In my morality, it needs to be mutual.

8. WITNESS TESTIMONY BY THE PRESIDING TRIAL JUDGE —

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Judges sometimes improperly become witnesses in the case they are administering because they offer their own evidence in favor of one side. Sometimes, a judge is loosey-goosey in crossing over the line between offering sage advice, dispensing judicial wisdom giving their own opinion and becoming witnesses. If a judge testifies about his own knowledge or memory about a prior event — especially over a controversial or contested pending issue — and then rules in his own favor, the judge has become an improper witness in the case.

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Judges get used to being omnipotent in their courtrooms, and fail to remember the legal limitations on what they can and can not do. When reviewing this kind of behavior, reviewers rarely sanction or correct — a reviewing judge will require persistent and repeated behaviors, or they claim that to discipline the judge might “erode the judicial independence”258 and found that would be “dangerous” to the public’s right to an independent judiciary. That’s bunk.

Judicial Canon A judge is required to disqualify himself when he may become a material witness or be called upon to make evidentiary rulings on objections to his own testimony. A judge cannot administer an oath to himself.

257 This is called a pre-emptory challenge. 258 For example, see In re Troy, 364 Mass. 15, 306 N.E. 2d 203 (1973).

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WHAT ABOUT THE PUBLIC’S RIGHT TO ACCOUNTABILITY? The disciplinary committee reasoning sounds a little self-serving, doncha think? They thought that the judge’s misconduct in 17 cases over three years didn’t warrant sanctions, since this judge processed over 50,000 cases. Maybe, but I’m not convinced. I assume they didn’t send out a questionnaire and I wonder who was doing the counting? If I was one of those 17 cases, it sure would be important to me whose doing the counting and what they are going to do about it. How about zero tolerance for judge failure to disclose potential or apparent conflicts of interest?

Without accountability, these kinds of stories are legendary. To get accountability, requires years of tenaciously in even one case: making motions to recuse the judge, strike the testimony of the judge, remove and replace the judge, retry the issue, have evidentiary hearings, file judicial conduct complaints, prosecute the complaints, request re-hearings, with appeals every step of the way.

9. PADDING THE RECORD — REINFORCING A BAD RULING When a judge is throwing the case to favor one side, he may make a special self-serving effort on the record to remind the parties how fair and impartial he is.

JUDICIAL DICTA AND RHETORIC “I know no matter what I rule in this case, one of you is probably going to take this case up on appeal.” This judge is attempting to create a bogus atmosphere of fairness in the courtroom, by mentioning aloud his pre-emptive theme that the person being dorked will complain. He uses inclusive language that suggests one or the other will be a problem litigant — but those on the inside know that one side is determined already to win, the other to lose. It makes a cover-up suggestion that he’s a hardworking judge dealing with one unreasonable party. The judge gratuitously throws out this kind of sentence periodically, to prove how fair his case administration is going. Think of it like priests, administering a blessing over people destine to be executed. “I’m going to give you a trial that appears as fair as I can make it.” No one wants a mere appearance fairness. You want actual fairness.

REINFORCING A BAD RULING Similarly, a judge who knows his rulings have been bad and biased, may repeat the ruling again and again, in subsequent hearings and in after-written orders issued months later — adding explanation, commentary, self-praise, and repetition. Good rulings don’t need constant shoring up by the judge who made them. One 23 page order contained 18 pages of such dicta — JNad explaining what a good ruling he made months before and praising himself and his BFF for how fair they were and how hard they worked. That order was so overdone it was an obvious cover up. If you see this pattern, assume it’s smoke to fire. Begin by looking up and double checking the law, the cases cited, the history and policy, and the logic. Write out each of the orders from different dates on a sheet of paper and compare them side by side. Look for inconsistent facts and ex parte information. If a judge has screwed up for the benefit of one party, he may have discussed it and added additional information not in the records. When it seems like a judge is demanding respect, not earning it, ask why? Maybe the order doesn’t deserve respect. “The defendant claims there is bias against her in this case, however no there is no evidence in the record to support this charge,” wrote the judge. Another time he wrote, “This court has worked hard to provide each party with equal opportunity and time to present their case, however the defendant continues to allege bias, fraud, and misconduct. There is no evidence.” 487

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When the judge takes 18 pages to tells you how fair he has been so far — and how the complaining party hasn’t proved otherwise, it tells me the judge thinks he is in trouble and is trying to make a record to cover-up and to subtly discredit one party. If there is nothing in the record, could it have been discarded or precluded? Was there evidence? Maybe it was excluded or not disclosed or removed?

CONCLUSORY DICTA Dicta that makes improper assumptions from the judge often is also designed to humiliate and disparage one party. It establishes a courtroom tone designed to reestablish the judge’s authority and power at the expense of the credibility of the defendant. The order characterizes the defendant as a whining complainer without credibility (at best) and a lying looser (or a criminal) attacking a fair judge trying to do his job. This type of writing serves no bona fide purpose, and elevates the interest of the judge over the interest of the parties. Orders saying “I’m fair and reasonable and you are not” means the judge knows he’s in trouble. Judges and their supporters will likely claim that the proper administration of justice requires a judge to restore the appearance of integrity to his courtroom, but this is circumlocuous and violates the cannons of judicial ethics. If a judge is ethical, why would it be necessary to devote pages to lecturing a party about how fair he is? It is never necessary for a judge to write in an order how fair he feels he is. Once that occurs, the judge has crossed the line of self-interest and putting his own ego and interests before that of the administration of justice. He should step down from the case, because his interest in upholding himself has become relatively out of proportion to the interests of the parties. It’s called putting his interest before that of the parties.

10. PRESUMPTIVE JUDICIAL COMMENTARY Instead of formally trying the case under rules and proper procedures, the judge may initiate presumptive comments early in the case, which cut off a defendant’s issues for trial.

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All of a sudden, some element critical or important to the final ruling — which has not been noticed or heard or proven — will somehow just become ‘true’ during the case. The judge makes assumptions and incorporates that version of ‘truth’ into his comments and future orders. The issue gets railroaded. Or cut out the final trial. Notice that the benefit will accrue to the ol’boy side of the case.

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I experienced it in the issue of trash taking in my case — somehow, hiring private investigators to collect trash became a crime, and I was alleged to be the criminal mastermind. There was no notice, hearing or testimony. It just got incorporated into later orders, contempt orders, and taking orders. This happens often in the informal relaxed courtroom where judge’s do away with legal formalities. The judge may not even know you — or care about courtesy to you, but is willing to take these kind of ‘shortcuts’ to speed up the trial. It comes down whether a judge gives undue preferential weight to the statements of one party — over the dispute of the other — and then the judge cuts off the dispute by making a premature assumption or ruling. No evidence, no opportunity for hearing. Just — bingo — a presumptive conclusion becomes “truth.”

11. JUDGES WHO LIE — THE DUTY OF CANDOR — NOT! It’s bad enough when a judge starts to testify as witnesses in a case, but the SJT compounds if they also lie. What’s interesting about judge ethics is the code of judicial conduct doesn’t spell out a duty of candor for judges — only for attorneys — but not judges. Both lying and candor are not in the index of any judging and ethics textbooks, and the review of judges who lie is systematically overlooked or passed off as incidental.

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A judge who fabricated false statements to help deport a Hispanic migrant worker.259 A judge when asked to recuse, inserted thousands of words of his own testimony into his next written record, explaining himself personally; (no chance to respond, cross or refute what he wrote. Lying by omission: the failure to disclose when disclosure is mandated and appropriate. Is it a lie when a judge uses discretion to select ‘facts’ that are refuted, not supported, and are unreliable, while discarding a record that is the opposite? Well supported facts, proven, and confirmable? In 1990, Keeton found that “no institution is entirely free of corruption.” And he suspects that the number of cases where judges lie or decide a case for a reason other than the one disclosed is quite small.260 He also acknowledges that there are “many expressions of cynicism”. I think he was unaware of the number of occurrences and the organizational structure that encourages judges to conceal, lie, and distort facts that they should be required to disclose in the interest of transparency and fairness. Almost every case in this book reflects judges who lie in one form or another.261 A rare example of an attorney who filed a judicial conduct complaint about a judge who lied in the courtroom: One woman attorney worked exclusively parental rights Constitutional law in child abuse and neglect cases. These cases fly below the radar Constitutionally, and the state abuses are legendary.262 Her client was a parent of child in state custody for abuse by the other parent. Every professional in the case was state-paid, so the attorney asked to be appointed for the client and paid by the state. The judge denied her request for appontment saying he had already apponted two other attorneys who were present. The judge lied. The docket sheet showed the requesting attorney had filed an appearance two months before, and the two attorneys were not appointed and had not appeared. The judge referred the requesting attorney to the PCC ffor questioning him (for lying) and there were cross complaints. The attorney was reprimanded for questioning the judge’s veracity. Meanwhile, the judge filed a professional conduct complaint against the Attorney. It was a long, drawn out process, where the complaint against the judge was dismissed summarily (without investigation and not docketed). Meanwhile, the judge’s complaint against the attorney moved to a full blown evidentiary trial. I attended, as did a videographer. The video is online. The attorney called the judge as a witness, and he lied again to the investigators and in court. So learn the lingo. The disciplinary hearings found that although the judge indeed had not been truthful when he claimed appointees were only from a preferred lawyer appointee “list,” but the PCC didn’t care. They were focused on the idea that it was professionally disrespectful for the attorney to say the word “lie.” It should be called “misrepresentation,” the committee found. The committee did nothing to refer the judge back again for discipline for lying in their hearing, but did act to issue a public reprimand against the lawyer, who had reported the judge for lying. Oops. Misrepresenting.

JUDGES WHO SEE ATTORNEYS VIOLATE THE DUTY OF CANDOR Ol’boys lie in court to a judge to influence a case outcome and to hide their own misbehavior. This becomes a judge trick when the judge fails to report the attorney to the bar conduct committee, yet there is a duty to report. They fail to take any action necessary to get justice in the case where the lie happens. I once was in a case where the judge twisted the allegation of attorney lying and fined the person making the charge saying it was a “frivolous” charge that did not go to any issue for trial on the merits. That is nonsense. So look for those seat-of-the-pants nonsense rulings that indicate the judge also is lying and avoiding the duty to report attorney lying. Often, they know it’s a lie, but treat it like the truth. Avoiding the mandatory reporting of an attorney for discipline is one of those country club acts that get used when convenient, and ignored when protecting. It is used against outsiders, but refused when outsiders ask for it to 259 A year-long investigation by New York Times resulted in a three part report published as “Broken Bench”, “Nothing Gets Done”, and “You Learn by Mistakes”, published in September, 2004. 260 Keeton on Judging, West, at Judging as Professional Conduct, (1990). 261 I respect and appreciate what the five ethics lawyers wrote in the two treatises on Judicial Ethics — but they are myopic and reporting from within. Keeton seems to be better at picking up on the Realism Theory of Judging (covered later) and how activist judges don’t disclose when they are substituting their own values for legal precedent. Is that another form of lying? 262 I researched and wrote for both New Hampshire and Washington state for Lexis Legal publishing,. It’s a black hole of fundamental rights, and is discussed in the Family Law Third volume.

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be applied against lawyers. At the next stage, the PCC system is similarly rigged to suppress or punish lying inside the system, depending on the status of the person referred. By now, I was watching the public PCC handling of various attorneys whenever I could. Remember, this was usually a secret process. With judges, it’s secret until they make a decision, then secret afterwards if the judges get off. (They almost always do.) The comparable treatment of two attorneys by the same PCC committee was astonishing. Outcome is based on Insider status — one attorney got a public reprimand — not for lying, but for not being quiet about a judge’s lie. The ol’boy insider who did make a lie — aka a “misrepresentation,” got an insider-pass. It wasn’t even accountability — it was pure favoritism in process. In this Holodeck law platform, it all depends on who your are and what is your relative country club status. It’s a fundamentally flawed un-American organizational structure. That’s why a neutral judge is probably the most important fundamental right anyone has who goes to court. And it takes an honest and transparent recusal process to get that. And a well defined statement requiring judges to be honest, complete and truthful in their disclosures. Accountability for some, and not for others, doesn’t work.

12. INSULTS AND THREATS Not all judges show disrespect for litigants, but there are so many examples of those that do that I limited reporting to just a few. One California case263 where the judge was reversed on appeal, and the appeal court ordered a new trial in front of a different judge. The reviewing court also considered the cumulative effects of judge misconduct (something New Hampshire courts have consistently refused to consider.) Reviewing Judge Rylaarsdam wrote: “The delineated exchanges between the court and counsel are the antithesis of judicial decorum and courtesy … [T]he judge instigated and encouraged many of the [abusive comments against plaintiff’s counsel.] He also allowed, indeed helped create, a circus atmosphere, giving opposing lawyers free rein to deride and make snide remarks at will and at the expense of plaintiffs and their lawyer … The ‘overruled’ signs also demonstrate the court’s lack of courtesy and decorum … This conduct was a sideshow in the overall circus atmosphere mocking a serious proceeding important to the parties …”264

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Judge Rylaarsdam was referring to a hand-made sign Judge Brooks held up when denying plaintiff objections. The next day, defense counsel made a better sign for the judge to use, “I wanted to help you. This is a much nicer version” said the attorney.

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“Defendants challenge plaintiff’s argument that the court used these signs only when ruling on their objections. Again, this misses the mark. It is like saying a baseball team could not complain if the umpire decided to call balls and strikes with his eyes closed, as long as he kept them closed for both teams. The judge and defendant’s lawyer had fun making plaintiff’s lawyer the butt of their jokes. The took turns with straight lines and punch lines to each other in a way that could only convey to the jury that they were a team, and plaintiff’s counsel was an outsider.” The 3-judge panel wrote the judge’s antics were “a misguided attempt to be humorous, and the defendant’s lawyer played into it, often acting as a straight man,” “but the courtroom is not the Improv and the presider’s role model is not Judge Judy.”

263 Haluck & Litton v. Ricoh Electronics as reported in the Orange County Register, 06-06-07. 264 Haluck and Litton were passed over for promotions and dismissed for complaining about reverse discrimination. They lost the employment discrimination civil case when the jury in Judge Brooks courtroom awarded them nothing.

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Although the appellate court found no malice in the judge’s actions, only a “misguided sense of humor,” it appears Judge Brooks has at least four other cases where he demonstrated a ‘cumulative’ and on-going problems regarding racial and other bias:265 In one case, “he referred to Latino defendants collectively as “Pedro.”” He sarcastically told a defendant with heart problems his “little ticker might stop” in jail. He said to a defendant “you have more names that the Tijuana telephone book. He issued a bench warrant to an Asian-American defendant for $10,000 or 20,000 yen. So, if we are keeping score, Judge Brooks has at least 5 disciplinary “private admonishments,” one case overturned and remanded to a new judge for rehearing, and he was named Orange County 1989 Constitutional Rights Foundation Judge of the Year.266 Question: Is that how the Bar does damage control?

13. DIFFICULT JUDGES Judge Arthur Gilbert travels to give lectures on difficult judges. 267 He thinks it is attorneys filing motions for reconsideration that are one of the biggest problems — because of course, that means — please judge rethink your ruling because you have made a legal mistake.268 But here’s a partial summary of some good advice he wrote for a series about how attorneys should to try to handle problem judges — too bad he’s not lecturing judges. His advice about pompous and sarcastic judges is stay mentally on track and don’t respond. That works well in ugly depositions with opposing counsel, too. I once took a depo where the two opposing attorneys made over 100 objections an hour for six hours. Have a plan and follow it. Don’t respond. Be respectful. Even if the judge isn’t. If a judge is critical or demeaning, thank the judge for his criticism and go back to your argument. Don’t trade insults. Be thankful when the judge is hard of hearing. Sorry, I can’t go along with him on that one. For hard of hearing and incompetent, it is best all around to get them removed a.s.a.p. When the judge tries to force a settlement, and is overly chummy with the opposing lawyer in his chambers, insist on a court reporter. Then explain and decline the settlement conference on the record. If a judge is sexist, don’t call him out in open court but approach and make a quiet request, such as, “my name is ____________ and I ask that you call me that and not “honey”. When you see favoritism and over-familiarity, request he treat all counsel equally, but add that you are “not questioning the court’s fairness or objectivity, but are only questioning whether the jurors might misinterpret the court’s comments.” When he insists you take an amount you rejected three years before, consider “disqualifying him or file ‘a Writ of Prohibition’ to prohibit him from hearing the case” (then Gilbert says the appeals court almost never grants these). What if the judge won’t read your points and authorities? (I had one strike mine from the trial record. He was senile and couldn’t seem to follow any legal arguments.)

265 Information provided by Victims-of-Law and Equal Justice Websites, including electronic postings by ElectricLawyer, June 6, 2007. 266 To mere citizens, this is a rather shocking development — giving institutional awards to judges who are grossly abusive and corrupt. But it’s pretty common practice. Judge Brock was elected supreme kahuna for that national association for all the state chief judges while he was being impeached; JNad was promoted to the state Supreme Court provoking a great outcry from people who had appeared in front of him and tried to remove and have him reversed and disciplined. Go figure. Judges admire other judges who act badly. 267 Judge in the Second District Court of Appeals, Ventura, Ca. 268 The information is taken from an article by Hon. Arthur Gilbert, Difficult Judges, How to Survive Them, California Litigation, Vol. 15, No.3 (2003).

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If a judge makes facial expression in front of the jury? “I don’t want to sound disrespectful but when your honor rolled his eyes and held his nose during the testimony of my expert, you may have given the jury a bad impression.” (You can ask for a jury instruction, a mistrial, or just make the judge aware he’s reacting and influencing the jury — “which could start a jury backlash of sympathy.”) He has other practical hints and tips, but seems to recognize how this kind of unfairness can affect a case outcome. And he doesn’t mention much about unjust results. He’s idealistic, and loyal to the system, and minimizes the occurrence. He suggested it happens “on occasion” or is “rare”. But the California litigator support groups suggest Judge Gilbert’s lecture is widely popular and reprinted, suggesting the problem is more widespread than he reports. Just as in divorce cases, I rarely was hired for ‘normal’ uncontested divorces — similarly my court corruption experiences attract cases from what are extreme ends of the worst cases. Nevertheless, indicators are this is a widespread, prevalent problem in the profession, with an untold impact on American justice overall. Interesting that judges are so privileged in our society — why does that bring out the worst traits of men? One would think their lot in life would make them happier than most. Go figure.

KING KONG IN THE COURTROOM So many local attorneys I talked to about this section name just assumed I was referring to a particular north-country judge they had experiences with. Oh, you mean the Peter Smith Rule, one said. The legendary Kong stands for a power, which acts with impunity, based on sheer size and brute force. Misuse of office is apparently an ego trip. A judge can retaliate against those who expose this, and whistle blower protection is nonexistent. So the institution simply has no motivation to remove Kong-judges. Deterrent is non-existent. Nothing can be done except to continue to ask a judge to recuse. Like the Catholic Church, the court system is concerned more with covering-up than fixing the problems.

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Increasingly, the system tolerates judges who use brute power to maintain their authority — meanwhile demanding respect as a social entitlement of office. Sounds like a formula for tyranny. Judges at all levels insist that this holy grail of “judicial independence” means bad judges cannot be controlled or limited or criticized. Stanley Mosk (California Supreme Court) wrote an infamous dissent that judges cannot be disciplined for any manner of expression “however primitive.”269 Fortunately, some judges have been disciplined for misbehavior, but not enough.

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Judge’s don’t allow attorneys a First Amendment right to criticize judges. But Mosk asserts free speech should be somehow allowed to judges. Humm? Mosk typifies how judges get so used to saying whatever they want and having lawyers bless it. Sorry — Mosk’s mistake is he asserts personal rights for judges while ignoring their Constitutional duty to provide fairness and a neutral court to try others. He seems to skip the fairness/duty-obligation part of being a judge. Or maybe he thinks it is just a great platform to be heard. Arguing about curtailing judicial speech ignores the fact that it impedes and impacts justice — as does lobbying for ‘judge rights’ when attorneys are muzzled to prevent criticism of judges. This is not an empty threat — it is upon threat of excommunication. If you want to be free to speak, Judge Mosk, you will have to step down from being a judge and return to being a mere citizen. Or lift the ban on attorney speech. People need to be able to obtain some kind of independent investigation into this kind of judicial behavior. As Kong climbs higher, perhaps the best way to bring him down from the top is from the base. Because the view from the heights is that judges just don’t get that equal applies to everyone in America — even judges, who believe they are a step above ‘equal.’

14. TEMPER TANTRUMS Both men and women judges have temper tantrums that include shouting, insults, throwing things, and walking off the bench. Fortunately my personal observation list is very short —but it is the same judges over and over who cannot

269 In re Stevens, 31 Cal. 3d 403, also Musk, Judges Have First Amendment Rights, 1 Cal. Law 30 (1982).

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control their emotions. It goes to judicial qualifications more than age. Tantrums run across the age spectrum. You’ll recognize it if you come across it.

HURLING Phil Defosses, a Portsmouth criminal defense attorney270 experienced his own erratica with Judge Gray, who managed to turn a judicial error into a pencil-throwing incident. Phil’s criminal case involved cross-examination of a female witness who previously testified she had never been sexually active. In fact, Phil had evidence of two abortions, which he sought to introduce as impeachment of her trial testimony. Questions in open court relating to a woman’s sexual history with other men are a delicate issue, and subject to objection and possible mistrial for prejudicing the jury, and Phil sought a quiet pre-ruling on his evidence at the bench before dropping the bombshell on this witness. Your Honor, may we approach the bench? asked Defosses. No. But Your Honor, I need a ruling before I ask my next question, he persisted. NO. (emphatically). Phil asked his question in plain view of the jurors. From up on the bench, Judge Gray reacted with frightening swiftness and hurled his pencil twenty feet across the room at the attorney and roared his anger. How dare you? Judge Gray began. There was a sidebar then, but not as Phil hoped. The judge covered up his mistake with a judicial temper tantrum at the attorney’s expense.

15. SANDBOX MENTALITY — PLAY NICELY We just all need to be nice and learn to get along, may work in the sandbox at kindergarten, but a judge who refuses to deal with legal domestic violence by a spouse in divorce proceedings, officially victimizes the victim further, because it is distasteful to her. Some judges (some women in particular) want everyone to get along and act very civilized. That includes not questioning the judge. My experience is these are judges that throw temper tantrums themselves and their attitude causes its own kind of harm. Because they have nothing personal at stake and experience no humiliation, injustice, or abuse, it is easy for a judge to act imperial and minimize the emotional angst that litigation causes for most parties. These judges may not be impervious to the stress, but the sometimes stupid platitudes tend to minimize situations where decisive judicial action and protective orders are warranted. If one party is abusing the other, this play nicely mentality tolerates bad law behavior and legal bullying. I think one of the social roles of judges is to protect those who are unable to defend or protect themselves, so play nicely ignores the uneven needs and attributes of the parties. Okay, you say, ham-handed judges are bad. Now you say nicey-nicey judges are bad. Don’t you like anyone?

It’s actually not that fine a line between rude and imperial court administrators and weak ones. That’s the position I, as a social commentator, would like judges to aspire. Firm rule-following and sensitive — but not too emotional or unstable

270 Reported by Sven Walberg, associate of Defuses, January 4, 2001.

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themselves. This section grew out of my chambers conference with a judge commonly called ‘Dizzy Debby.’ She exhibits a wide range of emotion on the bench, from openly flirting with handsome defendants to explosive bursts of anger that once caused her to run out of the courtroom with robes flying. A witness was on the stand, and we all sat in our seats for three-quarters of an hour until the clerk came in and told us to go home. In one acrimonious divorce case in her courtroom, where the dependent wife with three children was bitter over being dumped and lied to by her husband of 38 years—(for a younger, blonde co-worker no less), the judge called me (as the wife’s attorney) and the husband (in pro se) into chambers where she gave us the play nicely in a sandbox speech. Recognizing herself, she would undoubted be hurt by my observations, so I hasten to add that this judge is a lovely person outside of court. I have run into her on several occasions at the Claremont Opera House and the hardware store and under different circumstances, suspect she would make a lovely friend, but…judicial temperament may not exist for all judges. After all, judges are just ordinary people given inordinate power over people’s lives. She would serve better in a general courtroom where parties are strangers to each other. As a young female marital master, her techniques for controlling both the acrimony that arises in court and her own behavior suggest that she is inexperienced and psychologically unsuited for the emotions that arise in divorce. Play nicely grates on litigants who have not received crucial support money for months, who are victims of domestic assault, who are on the brink of desperation over the behavior of a dominant actor in court. Seeing a judge be unable to stop the spouse’s lying, cheating, abusing because of personal weakness or foibles, clients sometimes become more enraged with the judge than with the abuser. Maybe it is because we can deal with anything for a limited period of time until we get to trial — the place where the judge is suppose to set things straight. Increasingly, shabby judging fails to address the domestic abuse that happens between parties of unequal wealth. So this trick makes powerless people more powerless than if they took care of it themselves. We use court to convince decent people that if they control themselves and trust the system, they will be given fair and equal solutions. (susan, callout box only) Failing to address an abuser’s actions in any meaningful way except to chastise the parties to ‘play nicely’ is letting these people down when they need it most. This judge is one of many who refuse to hear “fault-based” divorces, ostensibly because she doesn’t want to hear spouses diss-ing each other in court. She stated she doesn’t want to hear any of “that messy stuff”, although at law, the innocent party is entitled to a larger share of the marital estate as compensation for the ‘messy stuff.’

16. JUDGE-MADE LAW THAT OVERRIDES LEGISLATIVE LAW

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“Fault grounds are not allowed in my courtroom,” said the judge.

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This falls under the category of judicial activism — judge made law. Regardless of what the legislature writes on the law books, all state judges refuse to enforce it. Sigh. Many marital masters refuse to hear fault based divorce grounds because they claim they doesn’t want to hear messy stuff. But that’s their job. Maybe they should find a new career? Often, these judges have three or four divorces each, which under arguably involved some of that messiness. However, fault grounds are a statutory public policy established by the legislature to allow payment or compensation to the innocent spouse. The ‘messy’ circumstances exist whether or not the judges avoid fault — but it is a way of (generally) harming dependent spouses and letting the dominant cheating spouse walk away with a much greater share of the loot. An attorney from Nashua wrote an op ed bar article about how 97% of state divorces were no-fault. That’s not because there was an absence of fault — it is because judges are legislating from the bench and denying people access to the statutory grounds and relief. No fault deters people from behaving well in marriage, and more often than not, enables fraud on the innocent spouse. We have seen how Insider Ol’Boys setting up their divorces a year or more in advance. Plotting and scheming to usurp the marital wealth. A judicial-fiat for no-fault means the neutral balance is missing from judge-law court procedures. 494

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Seems like on a national scale, that should be enough deterrent to make the legislature do something when judges refuse to enforce the law. I had two cases where I had to insist my client sign a waiver — because the judge refused to let us proceed to trial on fault grounds, and I thought it was malpractice not to proceed on fault grounds. It was the client’s right, and they lost a lot financially by not being able to proceed. Dizzy Debbie threatened my client would lose everything (and she had a tantrum) and Mrs. Heimann’s judge threatened me with contempt. So I conferred with each of my client and each said to proceed without fault. It’s not sex if the people involved in adultery are gay. Another creative judge found that sex between same sex people could not be adultery, as a reason to deny fault grounds.

17. DEFAMATION AND SLANDER FROM THE BENCH This is a tricky area judges have carved out to protect themselves. It is hard but not impossible to sue a judge for defamation. They have created judicial immunity, but it is not absolute. What happens when you give someone a state license to abuse?

18. JUDICIAL IMMUNITY Judicial immunity is another judge-made doctrine that protects judges from statements they make in court. It does not cover statements made out of court, or if the judge is acting in excess of jurisdiction. So you are in divorce court (limited jurisdiction) and the judge says you are a crook. The court hearing the claim will check to see if the statement was made as part of a judicial function? There is a lot of threading the needle through what is or is not judicial function, so be aware that it’s theoretically possible sometimes, but judges are pretty insulated, as long as the common law doctrine is in place.271 State legislatures have passed statutes making judges personally liable in matters, especially in areas of probate mal-administration and other criminal areas. Generally, the doctrine won’t apply if the judge has committed a criminal act — even from the bench. Conspiring to defraud the government was a charge against a judge who colluded to use corrupt means. No one has apparently tried to use this in any of the cases we have reviewed, but one old case from 1945272 found that even if a judge was not indicted, or even charged with error, or even a “wrongful act”, still could be sued. That’s the good news. The bad news is that the whole conspiracy did not really involve any judicial act, so his conspiracy was separate from his office. He was not immune from prosecution. The issue of conspiracy and immunity seems to hinge on whether it is a ministerial act (with no immunity), or a judicial act (immune), unless the act was criminal or negligent. Judicial immunity isn’t applicable in every type of case — if there is negligence in a judge’s administrative, for example. That’s because administrative acts have a non-judicial character.273 So you can sue — this was once successfully used to sue a judge who omitted all Blacks from a jury.274 But not in another case when the Virginia judge avoided using the bingo type selection process and somehow, came up with a list of juror names he found and certified himself — Kentucky found that to be not-ministerial, and therefore covered under immunity.275 Really? Another facet is whether or not the judge acted in good faith. Absent good faith (misappropriation of money for their own use, for example, and other criminal acts) the judge may lose their immunity.276 What I have come across is that judges fail to properly name/id the actual acts other judges do. They call lying, misrepresentation and generally avoid 271 Commonwealth v. Lee, 86 SW. 990 (KY 1905.) 272 Braatelian v. United States, 147 F.2d 888 (8th Cir. 1945.) 273 Truesdale v. Bellinger, 172 S.E. 784 (S.C. 1934). 274 Ex parte Virginia, 100 U.S. 339 (1880). 275 Commonwealth v. Tartar, 239 S.W. 2d 265 (Ky. 1951). 276 See Lee, supra.

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using the common criminal terms that prosecutors use for ordinary people. So whether this avoidance/misnaming relates to their instinctive maintenance of this doctrine is undetermined.

19. TRANSFER AND DELEGATION OF JUDGE AUTHORITY AND POWER In order for a judge to take his authority and pass it over to others, the judge has to work under some kind of statutory authority that allows a judge to transfer judicial power. For example, statutes authorize a Guardians ad litem system — but it’s exclusively for child custody and protection situations. In my divorce, the judge didn’t really want the work of handling the case, and he devised an alternative court-system for transfer of his power, over to his best friend, to privately administer for a fee. It wasn’t well thought out, so I got to pay for what should have been free, and a lot of other illegal encroachment consequences.

NO LIMITS TO A JUDGE’S POWER If no statutory authority exists to transfer judicial power, what can you do when the judge just goes beyond his authority? There appears to be a plethora of civil rights violations by a judge in office, but external to the general grants of judge power. Like the orders calling out the National Guard to bulldoze down a house to enforce his orders, Judge Gray didn’t recognize limits to his authority. Mary Bonser believes Gray had a serious problem with females overall. The house was her mother-in-law’s home. Until Congress acts to carve out that judges acting outside of their jurisdiction are not immune from civil rights suits and personal payment for damages … But that relief and remedy discussion is far down the road in Volume II. For now, learn to recognize it and name it.

86 DISCOVERY TRICKS & DOCUMENT DUMPING AT TRIAL

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One subtle trick is to overwhelm an opponent at trial by producing a large packet or book of trial exhibits en toto and then rushing for their collective admission as evidence to forestall objections. This promotes an unfair practice, and unfairness to the other party who needed those documents to prepare for trial. Once at trial an opposing attorney resisted for two years producing his trial exhibits (despite a court order that they be available for my inspection, and left a 4” three ring binder on my seat just as the judge walked in to start trial. He simply lied to the judge that he had produced them the week before, and I never had time to study and compare hundreds of pages of exhibit. These attorney tricks sometimes are much admired by some judges and modern trends from 1980 to the present provides winning incentives for attorneys not to cooperate with discovery. It makes Insiders strongly resistance production at every stage.277 Stonewalling techniques, like the ones above, are only effective because judges fail to act. They don’t provide fairness especially in cases where there is an obvious imbalance in power between the parties. For abuse to prevail, it requires a judicial compliance. Rush is a speed, which facilitates trial advantages for one side only, because legal review is a process of methodical review and consideration. You have to have time to study documents. Sometimes over several days or months, especially if you need assistance to evaluate them. The Study of Law and evidence especially needs time for reflection. Things pop into consciousness after you sleep on it. Many tricks will not become apparent for years after a case is over, and any chance for reversal or correction or discipline has long lapsed. So rush helps the case of the person producing documents. One document dumping technique is to wait until the last possible moment, then drop a thick packet of discovery on the desk of the opposing party at trial. It may be just as the judge comes in the room, or a minute or two before. Sometimes, it is during the trial, so the other side doesn’t even have time to glance, much less study or critique the

277 Robert E. Keeton, Keeton on Judging in the American Legal System, Lexis (1999) at §8.2

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packet. Of course, the judge could deal with the unfairness of that behavior but most do nothing more than a cursory or token extension — I’ll give you 10 minutes to review it. Some might say overnight. Since document dumping is more often a technique of ol’boys, (not pro se), it is rare to see a judge call out the dumping attorney. The judge could order a recess, refuse to accept the dump, exclude the documents, or order any number of neutralizing orders. Don’t hold your breath. The element of surprise is the point of this trick. The dumpee-party needs to know to ask for time to read and prepare. Often it will be given, but only if requested, and then only for a short period of time, so you need to insist on a meaningful longer time or exclusion. A week to read and reply and prepare rebuttal, if necessary. Or a month? The insider’s purpose is to get the information into the trial record, but not to give the other side time to deal with or refute the information in a fair and meaningful way. Timing makes discovery access unusable. For example, husband stonewalled production of thousands of client billing and business records, including records supporting millions in contingent fee cases that were to be reviewed and valued. He managed to stonewall production through the first trial and for another couple years ‘til the eve of the second trial (about three years overall.) During the second trial, the judge finally considered wife’s motion and took a short recess so 5 bankers boxes of records could be produced in court during trial — late in the afternoon during trial. He gave overnight to review them. During trial. No sanctions, not enough time for even an inventory, much less a thorough analysis. This is the judge-enabled trick in action. It was a nice show, but meant nothing. The financial data needed reviewed and processing by a forensic CPA. Thousands of records. The same judge also finally ordered the computer backup tapes of my old law practice on the eve of trial — in a non-readable format at an astronomical duplicating cost of $1,700 for a couple CD-ROM discs, which I had to pay. Chuck had the main computers for two years with the backups. It was all a sham document dumping during trial, to prevent review and expert prep. Yet even on appeal, the appeal court routinely assumes that document produced were timely. Harmless error is a lazy judge’s excuse.

THE IMPRESSIVE TRIAL EXHIBIT BOOK Several well known and expensive attorneys are known to drop large exhibit books, encased in plastic and bound, sometimes hundred of pages or more, on the desk of opposing counsel with a request to the court to admit the document as one exhibit. Countless paralegal hours go into the preparation of these impressive books. Opposing parties (and their attorneys) will be intimidated by the obvious preparation and professionalism of such a manufactured trial product; few demand a continuance to process the information, or even a recess to read it. In fact, few attorneys even bother to remove the bindings off such a professionally produced book or take it apart, one document at a time. The book often contain pure pap — manufactured hearsay otherwise inadmissible and without foundation. It is not bonafide evidence. Judges often favor the ol’boy firms who work in this manner, (it represents the high end of paralegal trial prep) and they disfavor the pro se or unequal opponents. The document dump enables a court to receive otherwise inadmissible evidence and puts the other side psychologically off balance. When combined with such tricks as hearing un-noticed issues at a court hearing, the document dump can be mentally overwhelming. Each page of each document is probably encased in individual plastic pages, bound so the recipient can’t pull it apart, and pick and chose what is acceptable and what is objectionable as evidence. Paralegals sometimes fall in love with manufacturing pretty booklets of exhibits. You can avoid being buffaloed by this trick and make enough objections that something fair happens. Pull the book apart. Take the proposed exhibits one at a time. Object to document dumping for same-day hearing. Make the judge admit each exhibit separately or decline it. Watch for the trial-manufactured summaries — that lack underlying proof of each summary fact and value (they lack “foundation.”) This is the kind of ‘evidence’ that is supposed to be exchanged and approved by both sides in advance of trial. Sneaky attorneys combined with sloppy judging lets it happen too often at or during trial.

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87 MINIMIZING PUBLIC EXPOSURE

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In addition to the sealing, gagging, hiding that occurs in Insider cases pre-trial, there are sneaky judge tricks at to avoid public exposure for trial as well. Courtrooms are public places, and the Sixth Amendment provides a Constitutional right to public trials in criminal cases. Justice is most reliable when conducted in public (especially a reporter or two), and not in private quarters chambers conferences, where issues tend to move in big chunks and settlements, or on the golf course. But in these questionable Insider cases, judges don’t want outsiders there when deals are being passed out. On the other hand, I recently came across a judge in Las Cruces, New Mexico who was recently elected chief by his peers in the district court. After observing hundreds of judges across the country, I have never observed a judge this pleasantly neutral and respectful to everyone — from court staff to criminal defendants who failed to appear for hearing. He wasn’t a doormat — he was firm and knowledgeable. But when the defense counsel said he didn’t know where his client was, instead of issuing a bench warrant, Judge Macias picked up the phone on his bench, asked the defense counsel for the clients last phone numbers, then instituted a series of calls to defendant’s father, girlfriend and former girlfriend leaving messages for the missing defendant. He was firm, polite, and bi-lingual. I was astonished that a judge would do that. I watched how he patiently dealt with all kinds of excuses, multiple attorneys, prosecutor and defendant problems, ordinary citizen/defendants, and court staff. I watched several hours over two days. I’m pretty jaded at this stage, but probably would be hard pressed to name any better judge from any of the hundreds in my research and observations. Cudos, Chief Judge Fernando Macias. The parties to the case become marginalized and immaterial. Sometimes, they are less than that. The meetings the judge’s private areas are usually off the record. Judges often use chamber conferences to try to facilitate settlements, to discuss potentially prejudicial issues outside of the hearing of the jury, or to pressure parties off the record. If there is no jury, chambers conferences conduct official court business out the presence of the parties and the public. Since important events including binding agreements transpire behind closed doors, there is no record for appeal. Chambers meetings have a tendency to move in large chunks and determine, settle, or abandon the most important issues of a case. Important question that get decided without discovery, or even hearing any evidence. The client has no way of knowing what was considered in this decision-making and the outcome, what elements were abandoned or traded between the lawyers and the judge. The attorneys can’t be trusted to tell you.

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ERIC’S PRE-TRIAL CONFERENCE

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My brother once just got up and walked uninvited into a pre-trial chambers conference behind his attorney, and no one seemed to notice. He went to the far end and stood by a window apart from and behind everyone, and they forgot he was there. They bantered about the schedule (there was a conflict over finalizing a trial date) and the upcoming long weekend and their respective social plans. They talked about the recent county jail unrest, where one inmate was killed by another. The judge said maybe if we’re lucky someone will kill him in the dark night of the night. Then she made a little joke about not needing a trial date (which they had not been able to agree up.) Eric stepped forward, silently reminding everyone he was in the room. No one said anything. Ever. Like I said, there is no record in these private meetings. He came home and told Christine and me, and I wrote it all out — a statement for him to notarize. He said to us, what’s the use? My attorney was there. Prosecutor Mark Ainsley was there. No one will believe me. It broke my heart, because he was right. This was the justice system I trained and studied years for. Who would believe that the judge, the prosecutor and the defense attorney were in a group where the judge wished him dead — and no one spoke up? No one spoke for him. No one spoke for basic human decency. They do not see themselves as we see them. They do not see us as we see ourselves. This elite system of law players serve themselves, but not us. They use our system — our American system. Our democratic system. But not for us. For themselves. The formal institution of “The Bar” has taken over the legal system, and increasingly the work of courts is done by club members consulting only with themselves. In Colorado, the number of litigants in pro se is over 70%. The question is not only of being unable to afford a lawyer, but the bigger question is how can you trust them when it has become standard 498

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practice to leave the client out of all the important decisions? Attorneys take flat fee cases knowing they will, at the last moment, back out before trial if the client refuses to take a plea. The person at the center of the legal maelstrom is disregarded and minimized to the role of a commodity, not an individual. A nuisance, a no body in court. Over a decade ago, I wrote this narrative: I realized how bitter it feels to be excluded from the action when it is me as the defendant. My attorney is used to attending hearings without me, and the information I receive back from him about what the prosecution and the judge said is filtered by his selective (and self-serving) memory. So I decided to attend the final pre-trial conference to find out why there were so many delays and surprises in getting to trial. I arrived at court thirtyfive minutes early and introduced myself to the bailiffs and security, and asked them if my attorney had arrived. No, they said, you are the first, but we will tell him you are waiting for him in the library. Forty-five minutes and several frantic phone calls later, I asked the guards, who told me my attorney had arrived and been informed I was waiting for him. He went to the clerk’s office, they added. The clerk’s office was empty, but the clerk told me all interested parties were in chambers with the judge and I asked where. “Wait here,” she said, “I’ll check if you can attend.” When she returned to usher me into the inner sanctum, I interrupted the proceedings. My attorney avoided eye contact. For the next hour, I was invisible except to watch my attorney hand over my rights and confirm agreements he had with the prosecution. He made excuses for why he was unprepared to mark trial exhibits, and in general dramatically postured my case to his liking. I mentally disagreed with many of his points, but recognizing I hired him for his perceptions of how to win the case, I deferred on most. I was silent, and was the last to trail out of the room, following the players.278 In a thousand ways, I have observed and heard stories of how the parties were reduced to non-participatory insignificant roles in their own cases, by people who were unprepared and less knowledgeable. The legal system wants to function as an inner sanctum — not with the messy interference of the people at risk. They say we lack objectivity and are too emotional. So what? Justice involves passion and emotion, and this system where detached people process us through a system that is often a sham, only works because they convince us to be quiet, detached, ostensibly rationale. Follow the rules. The judge makes a joke in chambers that if she’s lucky, you’ll be murdered, and you are supposed to play along. And so, litigants are treated and viewed as a lesser class, needing a ‘higher’ professional class of to make their deals and stand up in court and try their cases. And so cases get swept up into the ego and theater of attorney dramas and case handling, where the parties are expected to take whatever is offered by their representative attorney, to pay for it, and not to question — even and especially if there is a poor or erroneous product or result. This makes for the highest level of court efficiency, and it is conducted best and quickest in quiet chambers. While trials move faster and settlements and negotiations can occur with these chambers meetings, justice overall functions best in open view. For defendant concerned about secret trade-offs, insider favors, or who need public exposure to insure the appearance of fairness, it would be wise to decline to have the attorneys go alone into chambers or to decline chambers conferences altogether and conduct the business of the court in open court. Also it is always proper to ask for a transcriptionist in chambers. Be prepared to deal with judicial anger if you decline to go into the judge’s chambers. One judge became so enraged when my client, the defendant insisted that the case be heard only in the courtroom — where members of the press were observing the case handling — that he threatened her with incarceration for contempt. It was scary, even if I felt strongly there were no legal grounds for contempt or incarceration.

278 I knew the rules, cases, precedents, and the logic in application — probably better than anyone in chambers. Why not? It was my life on the line. So I spent considerable time over-preparing, which it became obvious my attorney had not. I lacked detachment and hoped beyond reason my attorney would have that along with some insightful edge. In hindsight, he did neither. What I had was hope over reason, an easy pitfall when hiring an attorney.

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Spouses are also male. One of the men who sought to join our ex-wives club was Rob from Atlanta. He had a good point that not all the outsider spouses in insider divorce cases were women. Rob was married to the daughter of a senior partner of one of Georgia’s largest law firms. They had gotten divorced and her father was her witness for trial. Not only did VIP Dad sit himself down in the jury box after testifying, but he took himself into the judge’s chambers for conferences as well. The pro se defendant was intimidated and did not speak up about this special treatment. Neither did the judge. The latent message was later quantified in the final order, which not only impoverished the father, but effectively permanently took away his children — although he had been their primary caretaker for over nine years.

The ability to see and hear the necessary elements of a case goes to the right to be able to fully know and understand the vital inherent components necessary for a fair trial. Is a neutral judge part of that right to a fair trial? One federal judge had a ‘customary practice’ of conducting private plea and sentencing hearings in her robe-ing room — the private area where she usually donned her judge robes. The government argued that the public had access to transcripts, and spectators could have followed her into the robe-ing room, but the Second Circuit U.S. Court of Appeals viewed it from the standpoint of the press and public: closed doors hearings violate established rules and procedures, therefore they violate the integrity of the system.279 New trials were ordered to be held in open court.280 But in the following case, the parties were not allowed in court, were finally allowed to watch the trial from monitors in a courtroom 60 miles away, and on appeal were instructed “to enter the courtroom in NY independently, to enter the building independently, not to sit with each other, not to have eye contact with each other, not to have eye contact with our attorneys.” Here’s that case — national security squares off against four librarians —

GAGGED FOR LIFE — THE CONNECTICUT FOUR (LIBRARIANS)

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This isn’t a judge trick — in fact judges at hearing appeared somewhat distressed by the FBI’s tactics and it’s attempt to impose it’s own perpetual gag orders over four Connecticut librarians281 under penalty of prison. The FBI showed up at The Library Connection in Winsor Connecticut in 2005 with “a document” — a National Security Letter (called an “NSL”) demanding turn-over of user data from any of the 27 libraries managed by the Connection. They ordered that the four librarians involved be gagged for life, and that they were not allowed to talk, phone, or email each other, their families, or anyone else under the Patriot Act. The document also precluded talking to any attorney and prevented them from testifying before Congress about the renewal of the Patriot Act. The Department of Justice claimed the gag orders were so confidential in the interests of national security, the librarians were not allowed to attend their own trials and hearings.

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WARRANT CANARIES These secrecy laws are so subversive and contrary to fundamental American freedom and logic, that electronic internet providers have begun posting “Warrant Canaries” (which are the opposite of a notice that they have been served with secret government subpoena.) It would be a violation to post the company had been served, so instead they post a dated notice that they have not been served. If the date expires and the notice isn’t updated, users are to assume the company has received a secret subpoena to turn over uses private information and the company is not allowed to disclose it. What’s next? Secret handshakes? Eatable communications? Maybe government travel reward point incentives for ratting out family members?

279 Ruth Bader Ginsberg, sole justice presiding. 280 U.S. District Court Judge Shirley Wohl Kram of the Southern District of New York (2nd Circuit) sentenced Carlos Goiry and Luz Marina Munoz without any advance notice about closing their prospective proceedings. U.S. v. Alcantara, February 1, 2005. She also made no findings or rulings justifying the closing, see also a 1984 case In re The Herald Company. 281 The four Connecticut librarians are Janet Nocek, Peter Chase, George Christian and Barbara Bailey.

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Judge Victor Marrero of the U.S. District Court, Southern District, NY struck down the National Security Letter provisions of the USA Patriot Act and the DOJ appealed. Ruth Bader Ginsberg sitting on the Circuit Court282 did not rule finally, but she wrote and upheld a stay, pending a full hearing after the lower court Judge Marrero voided that NSL portion of the federal law.283 She wrote — “A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens… Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.” But the two-year process involved the ACLU, federal courts including the Court of Appeals, the FBI, the DOJ, ‘National Security’ and Congress.284 The librarians persisted, and after four years of being gagged, (two years after the Patriot Act was renewed in 2007) the letter was withdrawn; the appeals court called the case moot; and the librarians began to get answers, which they shared in 2010 and 2014. Librarian Janet Nocek said: “Imagine the government came to you with an order demanding that you compromise your professional and personal principles. Imagine then being permanently gagged from speaking to your friends, your family or your colleagues about this wrenching experience.” Hassling the Public Another extension of the improper sealing process, judges who are forced to open their courtrooms in controversial cases allow bailiffs to harass the public and press. Under the feudal system of patronage, nothing like this occurs without the knowledge and tacit approval of the judge. One of the perils of conducting a case in open courtroom (not sealed, not in chambers) is that anyone could be sitting in the courtroom watching. In cases involving ‘special treatment’ it is potentially dangerous for the insider players to be observed giving or receiving unusual treatment or setting aside customary court practices. If the press is present, your name (or the judge’s) or a video can be on the internet the next day, with internet petitions and 1.1 million signatures to remove the judge by the end of the week. Bailiffs are charged with maintaining security and decorum in the courtroom, but function also to limit public access to hearings. Judges are responsible for their staff, including bailiffs and security guards. In New Hampshire, judges insisted that their so-called “judicial independence” from other branches of power requires judges to control court guards. One case (where judges decided that they were in charge), concerned what physical distance their supervisory power extended to — to the four walls of their courtroom or the four corners of the parking lot around the courthouse? Judges demanded the maximum. While most of the tricks listed are explained elsewhere in the book, here is a list of ways that court personnel intimidate or limit public access to court proceedings: Bailiffs approach people in the courtroom and insist they step outside and produce a driver’s license to prove their identity. Courthouses are public places; no identification is necessary. Bailiffs intimidate and insist on recording the names of all the public. It is not necessary to prove your identity in any way to attend court. Bailiffs apply force to remove or bring in or take out parties, attorneys or spectators. Bailiffs increase in number to surround and harass parties/lawyers without cause. However under the might-makes-right-theory of courthouse management, visitors and press have been hassled to keep the courtroom free of unsympathetic witnesses and critical reporters. Cases involving ol’boy insiders, where judicial discretion is expected to blatantly favor male insiders, disincentives for visitors to enter and watch visibly multiply.

282 “Doe v. Gonzales, 546 U.S. 1301, 1308—1309 (2005), Docket No. No. 05A295” 283 This case was initially Doe v. Ashcroft. 284 http://www.policestateusa.com/2014/librarians-gagged-patriot-act/Librarian lockup.

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OFF-THE-RECORD RULINGS Off record rulings permit a court to make a special ruling for one case only — which cannot be cited as legal precedent for any other case. Stare decisis is the essential legal principle of American law, which provides that courts are to build decisions consistently and in conformity with prior legal decisions — when cases are based in fundamental principles of fairness, consistency, and reliability. My constitutional law professor, Justice Anthony Kennedy, now of the United State Supreme Court, taught stare decisis by using a visualization tool — we were to imagine a prior case decision as a rock in a field of rocks. With attorneys out there turning over rocks and looking at the underside until we find one rock that applies historic law to the present case. I thought using an image of a rock was a reference to stability, immutability and solidness. In American law, one doesn’t solve cases by manufacturing new rocks, and the fundamental principles of fairness, consistency, and reliability demand adherence to stare decisis legal principles.

SO WHY DO COURTS MAKE SO MANY UNPUBLISHED OR OFF THE RECORD RULINGS? Off record rulings are suspect by their very nature. Don’t use this case — the outcome is unreliable. One of the major American treatises written about judicial discipline and judge bad conduct is loaded with case citations annotated with unreported decisions or unreported determinations, (where each case is specially decided) — based on what? Special factors? The judge’s station and importance? His status? A cover-up? Or are unreported decisions the symptom of weak rules of conduct — that twist whatever political or institutional direction is needed to prevent the public from losing faith in the judiciary?

OFF THE RECORD RECORDS

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Even more offensive than off the record decisions are off-the-record records. A supreme court disclosed for the first time during impeachment hearing testimony, that the court for more than a decade — quietly maintained a secret list and secret case numbers for highly sensitive situations. No one, outside of the highest levels of court inner circles, knew the secret docket existed.

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Even the parties to the case were unaware that their cases were maintained in secret by the Supreme Court. This court avoids any public docket printouts, and there is no central listing of cases available anywhere in the state for public viewing. The public is required to travel to each of ten judicial circuits (counties) and check with the clerks of court in each courthouse separately, by case name — one case at a time. Without any public printout, no one outside of inner court circles at the highest court level was even aware there was such a secret docket listing. In Ohio, a judge decided over 100 misdemeanor cases off the record. In New York, a judge who collected fines and dismissed cases was reprimanded. In New Hampshire, two judges altered and removed incriminating documents and exhibits from court records. Another variation of hiding the records is for the judge to keep private records of cases. A chief judge claimed not to have his bound black-book ledger of his chambers hearing, although he was writing in such a journal throughout. The judge also had a law clerk and had instructed the law clerk to take notes of the hearing, but later denied both the existence of a law clerk and any notes. All contemporaneous court records of the hearing were simply denied out of existence. Judge Journals. All Judges are provided with specially manufactured black journals. Bound 9 x 12 inch heavy lined paper for writing down case notes. Each journal is not only embossed with the judge’s name, but the journals are sequentially numbered, and contain 174 numbered pages with an alphabetical index at the back. It is disingenuous for a judge to later claim no such record exists, especially in order to avoid review of his in-chambers notes for false statements, bias and favoritism.

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“Judges may not fail to maintain case files or dockets, particularly where such conduct tends to favor certain litigants....Judges may not favor or disfavor certain parties by maintaining secret files or altering or destroying certain court records. Court records must also be kept in a secure place.” JC&E, 192.

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To offset the negative effects judges use to minimize public exposure, the general public currently has little government support — so I recommend small private steps. 1. Going to court isn’t something you want to do alone, and I recommend never ever going alone. It’s just not safe unless you are an Insider holding a free Teflon-coated pass. There are support groups around the country, and some court-watcher organizations that non-insiders may be able to call on or as you proceed through the thicket, you will begin to develop your own team of supporters. 2. How to find support for gathering evidence about a judge. Check to see if judge data is available. If all cases decided by each judge were made accessible to the public — anyone could study and analyze the other cases a judge presides over, the number of times taken up on appeal, the outcomes, the disciplinary record, the annual financial statements. These sometimes demonstrate negative and unethical threads of judicial behavior, that can be assembled into measurable and quantifiable topics. For now, mostly the public can’t do this without great effort because judges are hiding all their personal, court and case data. 3. In family law cases, it is highly helpful to join a information and support group — if only for the duration of the divorce. The Coalition for Family Justice has national and regional chapters. They are practical help and support. (They are not free lawyers.) All are non-profit. Members include not only litigants, but judges, attorneys and court professionals. They help identify and address — Judges, experts, and attorney who have prior reputations for fairness or bias and favoritism; Judge who routinely fail to disclose potential conflicts of interest (although this is phrased in the language of judges — it is the affirmative act of hiding conflicts)285 Favoritism in appointments of experts whose opinions have been identified as shoddy, biased, and unreliable; Patterns of gender, race, and economic bias; Reputation regarding a judge’s handling of contempt — especially payments ordered to be paid to the opposing party; Sealing or transfer orders, particularly to certain other compliant judges Names of attorneys who win repeatedly in a certain judge’s courtroom. Tips and help for how to proceed pro se or at a reasonable affordable cost. 4. There are several online prisoner support groups — mostly on-line information, but it is helpful to know what changes are happening regarding visits, mail, phone calls, fees, and abuses occurring across the country. The movement to private prisons presents multiple problems that seem universal and discourage family contacts, such as the movement to replace in-person family visits with expensive video phone conferencing. [Who’s thinking this stuff up? Nazis?] 5. Increasingly there are probate abuse support groups, and mortgage-fraud-banking groups. Check online and some of the footnotes have web-site references. It’s nice to have access to brief banks and other information from people who understand these complicated patterns of court and insider abuse and financial rape. 6. The innocence projects have taken to limiting help to the huge population of innocent prisoners sentenced to death. I have contacted a half-dozen, met with some, and found them to be overwhelmed and very narrowly

285 I sometimes have to check myself — for speaking judge-ese. Judges routinely use passive and third person indirect statements when referring to their own actions and thoughts. Instead of just saying “lie” it becomes “a mistake” or gets presented as an oversight or avoided altogether. It’s part of the court culture and also the court problem. It softens the impact of judicial impropriety, diverts attention, and avoids scrutiny. It also reflects how they view themselves and their abuses — gently.

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focused. If that is your issue, they have been highly effective not only in getting releases, but in drawing attention to the flawed social policies, law enforcement and prosecutor practices that encourage wrongful convictions, and discriminatory attitudes and collusion of judges and prosecutors. 7. The Whistleblower’s Handbook, A Step-by-Step Guide to Dong What’s Right and Protecting Yourself, by Attorney Stephen Martin Kohn, national expert on whistleblower law. Not every whistleblower is protected by federal law, but this may help pre-plan for protection, and will put whistleblowers in touch with experienced people and groups that may be able to help. 8. Legislative oversight. It’s a hard task to lobby legislators with court abuse that is complicated and dangerous for the critics. Still, each federal and state legislature has a judiciary committee. Beware that they are staffed with attorney-legislators and their wives, who will insult or ignore your concerns, then work from within to minimize complaints and proposed legislation for reform. So do background research on the members, and start one at a time, informally to educate, reach out, and support. Because legislators are not usually lawyers, their ability to oversee, rein in, or stand up to members of the court is hampered by an inability to rely on those best trained to educate and lead them in a court or judge assessment or review. Information is provided to them by judges, for judges, and it fails to perceive and assess the effects and problems created by a lack of judicial transparency and accountability. Until legislators learn how to assert control over the problem, judges will continue to run rough-shod over the public. Each legislator should have at a minimum an independent ominsbud office for court clients and complaints, to listen, monitor, and assess the degree of abuse occurring in state courts and to report to legislators. 9. The disciplinary process of judges is internal, self-serving, and reciprocal. Judges cannot be trusted to report, assess, discipline their own misconduct. Even their statistical and annual reports are devoid of critical information for scrutiny. I personally don’t have faith in this process, but it might serve as a litigation strategy. 10. State Constitutional Conventions. To the extent there are state constitutional convention requirements, they present a forum for judicial reform or reorganization of existing courts. They are an American tradition of balance and oversight over the third branch. The cavet is they likely will be usurped by a well-funded attorney lobbying process. It might be prudent to limit the number of attorney-judge representatives allowed to avoid a disproportionate and well-funded percentage of the delegates from taking control of the convention. That problem happens often in legislative and oversight committees, with law-wives, affiliates, and sycophants deepsixing and sabotaging the process. 11. In cases where victimized parties believe there is judicial misconduct, it is helpful to see if the judge’s pattern or tricks are repeated in other cases — egregious judicial behavior may not be often repeated, but it does repeat especially if the judge is successful in evading discipline in the cases before. There is no deterrent to bad behavior because it is not recognized or is dismissed as an isolated incident.

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12. Grand Juries. Judges are setting up informal systems to keep whistleblowers and court abuse reporters out of the grand jury. It seems like this is the avenue, but I still haven’t figured out how to get in front of the grand jury when the judges and their bailiffs control the building, threaten arrest, and subvert access to the Grand Jury.286

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13. The Role of Court Watchers. Judges act differently when there are watchers in court. Some ask people in the gallery to identify themselves, as though they were having tea. They want to know if a reporter is present, if the defendant has friends, and how powerful and legally trained the watchers are. Kennedy described her notetaking for her radio show, how a very biased judge reacted. It is justification to be there, when judges alter their behavior based on the presence of court watchers. The opposite of keeping people out of court, is packing the courtroom with people designed to visually influence the jurors.

STATE PROSECUTOR PACKING THE COURTROOM — ANOTHER KIND OF MEDIA CIRCUS On the other hand during my other brother’s trial (I have 5 brothers) the law enforcement presence was certainly made memorable for jurors — seeing a solid row uniforms day after day — made an impression of strong law enforcement support for the prosecutor. That many people, faithfully attending a six-week trial sent a strong statement suggesting overwhelming community support. I thought we should object — after all, most were on-duty and paid to be there. And some were bored and slept through, with heads perched on hands. There were retired officers from many branches, who just showed up to do their duty like election watchers. This blind loyalty might be admirable in some cases. Others 286 Check with ProSeNation, which has actively tried to present evidence of judicial abuse to the Virginia grand-jury.

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were on duty and were paid to attend court as extras on a movie set. They weren’t really court watchers. Some read newspapers and books, talked, snacked, and dozed. They went in and out without comment from the judge. I am always skeptical of media circuses. We have looked at the Boston Judge Lopez trial, the Pamela Smart trial, and my brother’s trial. Each got special — negative — treatment that influenced trial fairness. If prosecutors have the facts, law and evidence, why do they require a media circus? Here, their show of wealth (all those paid uniforms, were not paid by the prosecutor — but by the county. Not only unfair, it was a misuse of public money — to shore up what? A soft case? A bad case? A corrupted case? Is trial just another expensive marketing campaign? Judge Sterling’s trick was her admonishments to defendant’s family — erroneous accusations that somehow the defendant was part of a disruptive tribe —in need of her discipline. While officers came in and out during every session, the one time I went to the bathroom, she stood me up in front of the court and angrily said I would not be allowed back in the trial if I left again. Family members who were permitted in court (most were sequestered) were professionally dressed, quiet, respectful and didn’t engage in disruptive behavior. I didn’t like Judge Sterling — she seemed incompetent in criminal procedures and was clearly biased — but everyone was respectful just because she was the presiding judge and that came with her position. Incidentally I don’t recommend ever a disruptive or unprofessional demeanor in court — it’s counter-productive and disrespectful. But on the other hand, I consider myself a judge’s equal — as in we ‘are all equal under the law’ — and I think law and rules apply equally to judges, too. They already have a disproportionate share of power in court — before a case starts. It’s only fair gamesmanship for them to be respectful to ALL the people in court, not just who the judge is rooting for. 14. Never go to court alone. Pay someone if you have to, but make sure someone is around to help, report, summon help if you don’t come out. That’s not a joke. One single parent father went in for a DWI, got arrested, and wasn’t allowed to make a phone call. He was locked up 5 months, and when he got out, he called me. His sweet boys (he had full custody) were traumatized and it took the boys awhile to find their mom to come and get them. No matter how certain you are that it is just a minor deal, don’t go alone. Plus you may get better treatment.

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Calling outspoken women crazy as a means of discrediting what they say has existed for centuries. It’s a gender control thing. The American Jezebel287 Anne Hutchinson, threatened Puritan male church leaders in Boston in the early colonies, by teaching women’s Bible classes. In 1637, a pregnant 46-year old midwife was charged with hearsay and sedition and tried by forty male judges of the Massachusetts General Court because she attracted too many male guests to her weekly female Bible studies meetings. New England and New Hampshire in particular had more than their share of denunciations of women as heretics, witches and crazy people. The modern version of crazy is a method to control political critics, especially those inside the fold (i.e. members of the bar.) This is called playing the crazy card, for both women and men. Men-in-charge find that in times of moral crisis, when they cannot control the women, mental institution lockup becomes yet another tool at law. As a lawyer, I had several clients who came to me after reading charges about me; they also were threatened by a judge or were taken by force from the courtroom for 72 hour mental health examinations (lock-up) because they cried in the courtroom. Of course, it was a male judge that came unglued with the defendant’s tears, although I have no doubt that hypothetically Judge Patricia Coffey would have loved to prod me to the point of a blubbering puddle so she could have arranged a similar lock-up for me.

287 Eve La Plante, The American Jezebel, the Uncommon Life of Anne Hutchinson, the Woman Who Defied the Puritans, written by Hutchinson’s seventh generation great-grandchild.

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Linda Wojas admonished her daughter Pamela repeatedly during trial ‘never let them see you cry’ and in hindsight Pamela maintained her stoicism at a media price. Would the American public on television have judged her innocent if she had copiously cried at trial? Male judges do it because they can’t cope with emotions; female judges because they enjoy their ability to cause humiliation. Judges and lawyers use variations on this blame-the-victim theme often in court or other cases where the little woman isn’t accepting their version of justice: “She’s a spendthrift” is a popular claim in almost every ol’boy divorce, “She’s uncontrollable” “She’s an unfit mother” “She’s unsafe” “She’s (insert any pseudo-psychological term here) … indicating the little woman is very angry.” Variations of these charges are used as excuses in pleadings and raised in court regularly by men whose women do not do as they direct. It’s an issue of male control, couched in language suggesting some vague or imprecise ‘criminal’ behavior or dangerous female mental condition, and attempting to provide some justification for the judge to take control and use ‘legal’ force. Anger for judges and lawyers is sometimes equated to or called crazy behavior. They would like you to accept your fate with gracious equanimity. But I think it is abnormal not to be justifiably angry over some group of cheater who are legally raping and pillaging your life, hurting your children, taking your money. Chuck loved and oft repeated a Spanish Sarajevo saying, which I have not been able to confirm — “you can rape my wife, kill my children, burn my house. Just don’t tell me what to do.” ‘Crazy’ terms are often used against anyone who exposes insider wrongdoing and immoral ol’boy acts that abuse legal authority — under any personal code of morality. Crazy is used to discredit those who say a judge is manipulating ‘a private law’ based on insider status. It’s so vague to paint someone with this broad brush of illegitimacy — consider it the Bar/Judge curse.

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Outraged? Certainly. Crazy? Only if you live in the court world of amorphous-words.

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Public defiance. It’s hard getting yourself collected enough to have the courage to be publicly defiant about illegal abuse by a judge. The paradox is that courage isn’t something you pray for or grow into. It simply blossomed of its own accord once I, the proverbial good girl wife and lawyer, was pushed to a point beyond which I had to say unequivocally this is morally wrong. So it was a deep-seated spot within me, and yet at the same time, it was beyond me. It came when I found a deep well — as Teresa of Avila put it — or as Jesus put it, a well that will never go dry (John 7:38).288

MARTHA MITCHELL Martha was the first contemporary political wife I became aware of who faced this dilemma of a moral right opposing a political wrong. Martha Mitchell was wife of President Nixon’s best friend. John Mitchell was also the President’s campaign manager for the 1972 Re-Elect The President campaign.289 Martha was savvy in her own right, and tuned into the President’s involvement in Watergate. She was also known to listen in on John Mitchell’s phone conversations with President Nixon and others who were ‘protecting’ the President, as they manipulated and twisted various illegal coverup stories. Mitchell was dealing with the criminally Constitutional mess of the era, and as the President’s best-friend, 288 Many thanks again to Father. Richard Rohr, Divine Indwelling, June 16, 2014, Adapted from True Self/False Self, Disc 2 for his enlightenment and ability to lead me to this understanding. 289 John Dean, Blind Ambition, Simon & Schuster, 1976.

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he could not control his wife. Martha repeatedly called UPI reporter Helen Thomas and others. John had doctors sedate her and everyone blamed alcohol and talked of putting her away. She claimed she was drugged, locked up and guarded to keep her from making phone calls. Publicly, John Mitchell discredited his wife as a hysterical drunk. Martha was collateral damage for the President.

THE MARTHA MITCHELL EFFECT The process involves a mental health worker or other physician290 who misdiagnosis a person as delusional or paranoid or some other symptom of mental illness, because the person makes valid claims, warnings or voices concerns about unusual or unlikely beliefs, that are either dismissed or disbelieved by authorities. It is caused by the “failure or inability to verify whether the events have actually taken place, no matter how improbable intuitively they might appear.”291 Sometimes called the Cassandra Phenomenon, it originated in Greek myth about the daughter of the King of Troy, who had the gift of prophecy, but was cursed when she spurned Apollo’s advances. For rejecting his love, Apollo cursed Cassandra so that despite her gift, no one would believe her. Typically, the Martha Mitchell Effect involves being under surveillance or restraint or threat by law enforcement or organized criminals; or over the infidelity of a spouse, and may involve physical issues. I add my own personal best to the list — persecuted for whistle blowing criticism of judges. It may be through individual lawyers (such as a husband) or by using the bar and courts, or at the federal level by the DOJ, FBI, CIA or Homeland Security. The court’s handling process is willy-nilly: charges are raised as collateral attacks. In addition to being distressing, they are diversionary attacks that sometimes get accepted as “fact” and they provide a loose justification for further orders and rulings to control the whistleblower. Or else, they become monster collateral issues if the case-in-chief lacks a proper ol’boy defense. Example: Inserted into the 21st (and last) professional conduct complaint generated against me, in the pre-trial process and seemingly out of nowhere, came a motion from the volunteer bar/private attorney, aka, ‘the prosecutor’292 that I submit to a mental exam with an out-of-state Harvard psychiatrist forensic expert to evaluate and determine my competency to practice law. My ex, true to his nature, slunk around the Professional Conduct Office dropping verbal allegations (nothing in writing that I was told about) that I was not only guilty of the professional stealing and other

290 What we see in divorce court and lawyer conduct cases is merely an ol’boy husband or judge suggesting the same ‘diagnosis’ without benefit of a physician — they throw diagnostic words out as collateral attacks — conclusions or accusations, but without valid charges, evidence, relevance, notice or hearing. The reasons are as imaginative as the Snops list compiled from a log book of a West Virginia Hospital for the Insane, documenting admissions between 1864 to 1880. See 50 Ways to Commit Your Lover, Dan Evon, February 11, 2016 at http//www.snopes.com/reasons-admissioninsance-asylum-1800s/ 291 Named by Psychologist Brendan Maher, Bell, V., Halligan, P. W., Ellis, H. D. (August 2003). Beliefs about Delusions, The Psychologist 16 (8): 418—422. JI 0.325. 292 In the area of regulation of lawyers, State authority to regulate all occupational licensing was usurped by the Court system in the 1980s, when the Courts assumed control of all lawyers. Lawyers are the only occupation ‘privately regulated’ in New Hampshire. Judges roughly delegated the socalled ‘court authority’ over to a private corporation. The State Bar Association. Meanwhile, judges mandated every lawyer must join the bar as a new condition of practicing the profession. For over 200 years, practicing law was an individual right, subject to state licensing by the legislature — the same as any other profession. Private individuals could represent or assist others in court, so long as they were of good character.

The Bar is a private organization — a trade union — a murky quasi-state power that controls and regulates and tries attorneys. This includes regulation of attorney First Amendment rights. This quasi-state power is not a constitutional one, and is traced in detail in other §s. For this example, readers should understand that the bar association makes vague, narrative allegations, conducts a series of extra-judicial hearings and “trials” for attorneys charged with misconduct, using other volunteer attorneys. The volunteer bar prosecutors are paid by their firms — usually prestigious or aspiring law firms (trying to insure complaints against any member of their firm get handled with utmost favor and or are dismissed in early stages.)

This murky area of questionable quasi-jurisdiction, in my opinion, represents more power-grabbing with slight-of-hand oversight by the judges. The process is not well defined, but these are just people — discrete people with their own agendas. I had trouble sorting out just who was a prosecutor and who was ‘the court’ in my cases. The court also (internal rules) can charge a defendant/attorney with the entire cost, which in my case, ran to many millions of dollars. My peer ‘prosecutor’ spared no cost, and knew the I would be billed for her entire time and effort. It’s a way of making sure complainers never return and never repeat whistle blowing. None of this in the statutes. It’s all achieved by internal court procedures, vague internal rules, and slight-of-hand judge law-making. Now practiced by the Bar in every state, the state bar-court disciplinary process has evaded Constitutional review by the U.S. Supreme Court. See an earlier Chapter 5 discussion the Younger Abstention Doctrine.

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misconduct he conjured,293 but that I was crazy and mentally unfit to practice law. I was ordered to submit to a mental exam at my own expense to judge my sanity. At $700 an hour for the expert witness psychiatrist, it was roughly ten thousand dollars overall cost, plus his enhanced expert bill for testifying at my last star chambers conduct proceeding. By now, I had defended against 20 other professional conduct complaints and survived professionally, but apparently the ‘bar prosecutor’ was nervous about winning this case and sought (and was allowed) to add a new oral charge of ‘mental incompetence to practice law’ shortly before trial. I fought it for six months while I researched the doctor. He was infamous for his evaluations of Massachusetts priests accused of pedophilia, whom he evaluated and consistently determined that each priest suffered from ‘criminal’ mental disorders. After several hearings and more than a half year, I submitted to the order of his exam, and told the doctor about my concerns and my research on him. We talked about two hours and he wrote a report for the bar prosecutors. It was a great report. They stifled it.

MRS. PACKARD In 1839 an Illinois couple married and began a family that by 1860 included six children. In 1860, Mrs. Packard announced to her husband, the Reverend Theophilus Packard (in church no less) that she had decided to attend the Methodist church across the street.294 Reverend Packard arranged for the sheriff to arrest his wife and lock her in a mental institution as insane for disagreeing with him on religion. Although found to be “intelligent” and “charming” upon intake at the asylum, she would not agree to renounce her religious views in order to match those of her husband. She was locked in the worst ward for the hopelessly and violently insane. Mrs. Packard became an activist within the ward, cleaning both the unsanitary conditions and the patients, surreptitiously writing a journal, exercising and practicing hygiene. Eventually years later, she was returned home, where her husband kept her prisoner in a room he boarded up with nails and boards. She threw a letter out the window and through friends, obtained a jury trial on her sanity. She was declared legally sane, was released, and left home. It took her almost a decade to obtain custody of all her children. As an activist and writer, Mrs. Packard founded a national organization and often spoke in the abolitionist movement for the emancipation of women and the rights of the mentally ill. She helped pass 34 laws in various states, including establishing the right to a jury trial before a person could be committed to an asylum.

90 ARMED HOME INVASIONS

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6

Armed home invasions — the illegal eviction of wives and children from marital homes, and other illegal use of law enforcement by influential court males. This is a dangerous trend in legal abuse and violation of civil rights, promulgated by courts and practiced by both local law enforcement and national military and government paramilitary groups. Since four-year old Elian Gonzales was removed by Janet Reno as not a foreign refugee with protected status,295 but an illegal immigrant — (justifying her orders to use a swat team armed with AK 47’s for the return of Elian to Cuba) the desire to force compliance by dissenters in domestic cases has served as a model to short-circuiting legal due process with Rambo-style military-criminal enforcement. Elian was an immigration case, but it is increasingly 293 In almost every conduct complaint filed against me (21 PCC complaints during my divorce proceedings alone) I recognized my ex’s inimitable language style and vocabulary, and further recognized his Sun Tzu warrior techniques to create multiple collateral attacks to pin down and distract away from our divorce case. This was also consistent behavior with Chuck’s love of the 1988 Lee Atwater GOP Training (in campaign opposition research and fighting) — aka the “dirty tricks” style which Chuck’s friend was well-known in Washington political circles. 294 I have to agree with Mrs. Packard. In my experience, hands down, Methodist women have the best potluck dinners. Great cooks. With six children, in the early 1800s I’d be signing up at the church across the street, too. 295 Elian came into the U.S. with his mother — a Cuban refugee fleeing political persecution. She died on the escape boat — just off the American shore. The DOJ avoided trial — and ordered the use of military force instead — justifying the first widely publicized American armed home invasion with military assault weapons and special forces.

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happening — in about 80,000 domestic cases a year — the use of inappropriate excessive military force against innocent and unarmed citizens in their homes. Two other examples demonstrate the use of extra-ordinary, unnecessary national and military force has become acceptable to our leaders — but not the populace. Ruby Ridge where an over-zealous police mistake and panicked shooting of a civilian boy — turned into a fullblown military reaction and massacre. Ruby Ridge started with a court-clerk typographical error on the defendant’s notice to appear at court.296 In 2014, the Ferguson Missouri killing of a black teenager, provoked widespread community rebellion. Again, someone (presumably the Governor?) called out the National Guard to protect local law enforcement, (not the citizens) resulting in the armed take-over of a small Missouri town — complete with no-fly zones, drone aircraft surveillance, quasi and military SWAT teams, and lots of soldiers. This type of reaction is growing because our national leaders have been encouraging the militarization of local law enforcement for 20 years. They get to sell off lots of left-over high priced global-war equipment, and lots of local police get to train and pretend to be Rambo on steroids. Only the targets of this excessive use of military-police force are two ex wives of judges, a four-year kid floating on a raft in the Atlantic and a baby sleeping in his crib.

Our government officials are using this stuff to enforce highly questionable divorce orders, no orders, and typo-mistaken orders! (And that’s just the ones we know about.) Where’s the judgment and leadership in all this?

THE EXPONENTIAL GROWTH OF SWAT “In the 1980s there were approximately 3,000 SWAT raids in the U.S. Now there are more than 80,000 per year,” and 79% are to private homes.297 The Thayer case eviction involved a locksmith who bore open the door to the family home, and the armed police who forcibly removed Mrs. Thayer and her children. But a tad less than three-quarters of the 80,000 raids use “a battering ram, boot, or some sort of explosive device to gain entry.”298 (60,000 a year, more or less) This heavy-handed mindset of unnecessary force (in over a third of these armed home invasions, there is no contraband of any kind or even a weapon — such as the case of Baby BoBo) that makes me write — we need external oversight of each and every time the police bash down someone’s door and violate the 4th Amendment. Where is the protective oversight in America? Who do I call?

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90 296 A court clerk mis-typed a court appearance date on a hearing summons, (she typed a 5 instead of a 4 for the date of the hearing) causing the defendant to miss his court date by a month because he was noticed to appear on the wrong date. The mistake set into motion a chain of events and errors in judgment by local police that resulted in death, destruction, and calling in 400 law enforcement reinforcements from as far away as Virginia. It was a gross governmental over-reaction, based on a governmental mistake, compounded by an unreasonable and misplaced fear of its own citizen(s) — who they apparently considered “patriots.” The government saw too many boogey men in a closet that never should have been constructed — it was a sad over-active imagination, that became a unnecessary catastrophe. The government later paid out millions in a civil rights suit brought by super trial lawyer, Gerry Spence. 297 Facts about the SWATification of the U.S., August 14, 2014. http://boingboing.net/2014/08/14/10-facts about the swati.html 298 Id.

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A SWAT threw a flash bang by mistake into a toddlers crib in a misplaced drug raid in Georgia.299 The mistakes, abuses, and increasing usage — which go uncorrected and unpunished — has lead to a judicial mentality of tyranny against ordinary citizens.300 It occurs with increasing frequency across the country.

BLACK BAG ‘LEGITIMACY’ The DOJ, DEA, FBI and who knows who in the federal government has been utilizing both ‘sneak & peek’ and ‘delayed notice warrants to enter private homes and conduct searches without giving notice. The take your DNA, copy your hard drives, take photographs of your home, rifle through your papers and copy them — all without your knowledge — before, during, or after. The feds remove items, have seized cars, and search — while making it look like a burglary. Or they enter so stealthily that it appears no one entered. This was authorized by Congress with the Patriot Act and the government used it about 25 times in 2002, but judges have done nothing to stem the tidal wave, and by 2012 judges approved 5,601 of these searches — DNSWs accounted for about 10% of all federal search warrants according to the ACLU research/collection.301 Judges, including special-agency judges, simply accept the word of the federal government and rubber-stamp federal law enforcement. But the Patriot Act (a misnomer if there ever was one) is a one-sided procedure that heavily favors the government. This blasé attitude toward the 4th Amendment has resulted in judges rejecting less than one percent of government requests.302

FOURTH AMENDMENT WRONGS Most federal judges have found that none of this is wrong. The U.S. Supreme Court first referred to a Delayed-Notice Search Warrant in 1985.303 Prior to 911, only two federal courts acknowledged covert searches, and the Supreme Court upheld their legality.304 By allowing judges and law enforcement to act305 without reprisals, there is a growing acceptance that there is nothing ordinary citizens can do to stop it. Judges, I believe, are the safe-guard for this kind of tyranny. Supreme Court Judge Sotomayer however, in a 2012 GPS tracking case wrote, “awareness that the Government may be watching chills associational and expressive freedom.” How judges handle or cover up will make the difference for America in the decades to come. It’s at the spoof stage — the u-tube Christmas song — The NSA is Coming to Town — trills about judges who work with the feds — but what happens when the protests become less tune-ful?

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How long are federal judges going to avoid Fourth Amendment federal violations?

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AT THE LOCAL LEVELS, BOTH LOCAL POLICE AND LOCAL JUDGES PRETEND IT DOESN’T HAPPEN. Two different sets of judges in Concord and Manchester, New Hampshire, condoned and ignored the use of lethal force against a couple of white judge’s wives and their children and pets at home. That was almost a decade and a half ago 299 Baby Bounkham sustained horrific facial burns and injuries, which the Habersham County Attorney claims would be illegal for the county to pay for — even though the SWAT made many life-threatening mistakes in its military charge into what appears to be the wrong home. 300 I don’t use the word tyranny lightly. See § appeals regarding judicial tyranny as a well-founded historic American fear based on English examples about the power of judges. Both English common law and the Magna Carta lead to the insistence of the American concept of due process in the U.S. Constitution. 301 ACLU has a comprehensive on-line research resource on not only the Patriot Act abuses, but other civil rights categories of violations. See also a national compilation at www.PolicestateUSA. 302 From Report of the Director of the U.S. Courts Administrative Office on Applications for Delayed-Notice Search Warrants and Extensions, ACLU.org, https”//www.aclu.org/files/ 303 From the research of Cleveland Marshall Associate Law professor Jonathan Witmer-Rich, first case law reference was in U.S v. Frietas, found at fn. 237. 304 In 1979, one of those cases, the Supremes not only upheld the validity of covert searches, but call the case “frivolous.” Dalia v. U.S. (1979), see WitmerRich, Id. 305 http://www.policestateusa.com/2014/sneak-and-peek-warrants/

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— and there was no Patriot Act excuse. So this judge-law enforcement cooperation indicates an even longer-standing state-mentality that also flies in the face of the U.S. Constitution. Instead of tactics to evade enforcing the Constitution, why not use the power of the court to enforce and uphold it? I think the problem with doing this is the same cronyism that is at work throughout the court — that we see in other sneaky tricks — nibble, nibble, one case at a time.

UNARMED BLACK MEN Of course, the most reported problems of the abuse of lethal force by law enforcement is against unarmed Black men across the country, where about 1/3 of the shootings are fatal. Studies indicate data is hard to find because law enforcement and court cases don’t report this racial profile shooting by race in any retrievable way. But one Oakland California study by the NAACP found that from 2004 to 2008, there were 45 officer shootings, where 37 of the people shot were black, and in 40 % of those cases, no weapons were found and one-third were killed. No officers were charged. No cases brought.306 Oakland is a Black city — every city in New Hampshire is White. But it is the same pattern and the cops are doing it everywhere. How many of these communities have a mediation emergency response team? A non-lethal alternative? Probably none. It’s a culture in which people suspected of minor crimes are met with “overwhelmingly major, often lethal use of force.307

More than three-quarters of U.S. towns with a population of 25,000 to 50,000 have SWAT teams and military war equipment and supplies. Concord recently purchased a BearCat — a military monster tank — which police put on display in the town square. This sounds to me like what Germany did in the 1930s in its preparation for global war. They kept mouthing the words of peaceful alliances, while preparing Germany for war. What’s the point here? What’s the point now? Federal funds enable this kind of escalation of war equipment and war power against citizens. So what if a couple of prominent judge exwives got their doors kicked open to forcibly remove them at gunpoint, while the women judges who enabled this kind of illegal brutal military tactic stood back, tacitly encouraging the excessive use of military force? To me, this is like the same type of assignment my first-year law class heard — go figure out how you stand on death penalty. Do it now. It’s homework. If you’re a judge, you should figure out in advance where you stand on use of lethal military force against citizens to enforce your orders. Just so you already know the answer when the time comes. You already have worked through where you stand theoretically and morally on the use of U.S. military lethal force against U.S. citizens — innocent or guilty — at this stage, no one knows for sure.

JUDGES WITH BIG EGOS ACTING WITH PHYSICAL FORCE They inappropriately short-circuit the lawful normal legal processes.308 They stimulate or authorize (directly or implicitly) the excessive and inappropriate use of physical and military force as a bogus form of criminal contempt. They cut off avenues for hearing and for appeal in these types of cases. No mistake — the SJT is the thug-like ex parte rulings that have no name or order when they are coming down, but generically are inappropriate and illegal enforcement — and they are implied to be lawful exercise of contempt power of judges — but they are not. Law enforcement wouldn’t be able to do this if judges developed some courage to declined to authorize the no-knock, or delayed-notice, or sneak and peek or other kinds of warrants. It ends with judges. Under ol’boy tactics, the weight of the criminal system is improperly enlisted to leap-frog family law and civil case matters by turning them into criminal law enforcement issues without jurisdiction and due process. It’s acting in excess 306 This is consistent with the data in the NYC PD firearms discharge report, that PD shoot blacks and Hispanic disproportionately to White and Asian. As reported by Jugea Lee, Exactly How Often Do Police Shoot Unarmed Black Men? August 21, 2014. See http://www.nyc.gov/html/nypd/downlaods/ pde/analysis_and_planning/nypd_annal_firearms_discharge_re Port_2011.pdf and also Newsvandal, info@newsvandal.com 08/22/2014. 307 Quote of Cornell William Brooks, NAACP President in an interview to Mother Jones magazine. 308 A court ordered eviction is a legal process that requires eviction notice and hearing, even for a renter. In the marital process, none of these safeguards were present.

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of jurisdiction. And sometimes it acting just in excess. In the last chapter we talk about Third Degree handling by judges — the widescale use of illegitimate force in a case. This Macho enforcement of questionable and illegal judge orders works to fast-track the criminalization of ordinary citizens, who then find themselves caught in a spidery court web. Judges empower and enable this kind of ‘legalized’ court abuse to law enforcement personnel by ignoring official extra jurisdictional use of some-kind-of implied authority. It’s all very incestuous —both the use of force and the evasion of due process and civil rights. There are no notices or review hearings. The harm is done in back-rooms. The judges I know subsequently hid behind inaction and inertia. On the other hand, I as a government target, was fearful and unable to think clearly about this for a long time afterwards. This is a form of insider legal abuse that gets trivialized as a messy divorce — and not the abuse of authority and fundamental denial of due process it really is. Newspaper reporting is poor about this — I found politically engrossed editors simply didn’t understand and were elated to feature shallow ‘messy’ fragments of what really occurred. The messy parts start when the victim stands up to what are civil rights violations — and makes noise about this kind of institutional abuse. They protest, but no one with authority will follow up. Not the Supreme Court, not the Judicial Conduct Committee. Not the media. If the inappropriate use of quasi-military force happens in judge-divorce cases, then baby, it can happen to you. It does happen to you. It is just not so easy to identify and analyze the systematic judicial abuse. Connect with a support group and speak out. Forget the humiliation — it’s designed to make you shut up and go away. Similar to domestic violence case handling a decade ago, muscling the eviction of wives and children from marital homes not only side-steps due process, legal rights, and legitimate challenges centered around the issue of excessive favoritism, but it has become a sophisticated form of ol’boy domestic violence against uppity women.

TACIT COLLUSION: LOOKING THE OTHER WAY

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Sneaky tricks are predicated on tacit collusion between judges and law enforcement. The ability of judges and former judges to enlist the aggressive assistance of local law enforcement to act in illegal ways to ‘enforce’ orders is, in part, a play on wanna-be aspirations of law enforcement to aid men perceived to be at the top tiers of court power. While law enforcement personnel may not be members of the ol’boy network per se, they are aware of, and often pander to its existence. In high school, this type of behavior was call brown-nosing, but it functions at all court levels as a back-andforth trade of favor and access to power. Another unmentioned aspect is the allure of what Barbara Oakley calls “the Successfully Sinister” — people with an “extraordinary ability to stack any deck in their favor, …a relentless need for control, and their self-serving ruthlessness … found in positions of power.”309

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From a gender perspective, the largely male dominated network overlooks this legal misuse of law enforcement power against of wives and children at home. By using uniforms, patrol cars, flashing lights, swat teams, guns and threats, outsiders would never guess it is an extension of insider bullying. By definition, bullying is a repeated use of abuse involving a power imbalance, designed to make the victim fearful or miserable. Technically it is a misuse of law enforcement officers because there is no valid enforceable order or even jurisdiction. No crime or attempted crime. But there is a history of legal intimidation. Misuse of official power to threaten or legally harm often goes unrecognized because this class of judge-bullies are not the average schoolyard or domestic thug. A subtle pattern is wrapped in legalsounding but bogus language. Instead, my experience is a deputy sheriff will intimidate and coerce a victim to abandon their occupancy of the family home without any valid order; if unsuccessful by threats, then the locksmith/and battering force followed by a false arrest.

309 Oakley, supra 332.

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I believe Chuck and the Captain met in Rotary together, but not friends per se. The first days of his new promotion to Captain, Concord Chief of Police, he wrote me a letter on his new letterhead, saying he had reviewed my divorce order and that I had 12 hours to vacate my home. He wrote me he didn’t want any trouble. He was incorrect and there was no order, but that was his interpretation. He had the letter delivered to me at home on the weekend about before 10 p.m. by a uniformed officer in a flashing police cruiser. The officer was embarrassed. He apologized, “not all of us approve of what’s going on,” he said. 310

If an official looking letter on some sort of police stationary is delivered for the purpose of intimidation, the language will likely be negative, but ambiguous or illusory. There will be no attached order signed by a judge for enforcement. Be wary of police officers and similar types who ‘interpret’ earlier court documents for you, explaining why you should cooperate with their interpretation. (It’s always bad for your side; always good for the ol’boys.) If implied threats and coercion don’t work, then there is always SWAT. In the quiet male network of insider favors and influences, this type of quasi-legal bullying evades identification and always evades review. On first blush, it may seem legal — after all, it’s law enforcement acting with police power. On deeper investigation, the paper work underlying the action is flawed, missing, non-legal or non-existent. Just a week prior to final trial on the merits, Judge Conboy issued the order to remove Judith Thayer and her children from their home. Several emergency appeals had been filed. The emergency was ? The husband desired the sale and found buyers, and he said that made it necessary to put his wife and children out on the street. Distribution of marital assets was scheduled for final trial. The total picture — the wife’s extensive down payment out of her own funds; her desire to stay in the house; the trial timing were not enough to stop a forcible eviction. When that case went up for appeal, other signals included facts and evidence precluded from trial that suggested this was a premature act. It was overly harsh. It disrupted the wife just before trial. It was a fast, forced sale of the couple’s largest asset at a greatly reduced price. The emergency was unnecessary but allowed the judge to sidestep the final trial process (similar to the hostile take-over of my law business) and it avoided a big picture analysis of the equitable distribution policy established by the state legislature for marital assets and debts. The judge’s premature ruling avoided the statutory big picture, avoided relevant facts and testimony and evidence of two years of collusion between divorce attorney, client, and accountant. Group greed was startling— this was a group of professional men all at the top of their game with recognized status and influence and power. They manipulated to cheat the family of an amount they could probably recover in a year or less. I wonder if President Nixon thought the same? All this cheating and for what end? Is the answer as simple as — it is a way of life for them. Had the case handling strictly adhered to divorce court rules, laws, practices and procedure, then permanent property division would likely have been decided at final trial, with full hearing of all the above-mentioned arguments (that got jumped over by the early swat-team eviction process.) Given the six-figure pay of supreme court judges, and the law school teaching that doubled Stephen Thayer’s take-home pay, a house payment for another month or more would have been a relatively nominal amount, as was the small profit from the sale of the house split between the divorcing couple. In the ordinary course of business, a wife and children will occupy the family home under temporary support orders at least until trial, when the question of a permanent award of the house to the wife (who had custody of the children and whose money was used to purchase the house) would be argued and determined. That’s the normal divorce court procedure.

310 My apologies to Rotarians everywhere — My college friend George Buck is active in his Rotary, and after reading an early manuscript, called me in dismay about what he thought was a dark shadow on Rotary. I too am surprised and cannot explain the number of contacts in this book that happened at New Hampshire rotary meetings. Ol’Boys are farming their Rotary contacts.

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Had the house been in a valid foreclosure auction or other factors of poverty and inability to pay the mortgage, a premature distress sale might have been an appropriate issue. But that wasn’t the case here. In fact, in the Thayer eviction, the court denied Judge Thayer’s motion to evict his wife, 15 year old son and adult daughter, two weeks before the scheduled trial.311 There were dozens of other examples of judicial favoritism and special handling in the Thayer case, resulting in the eventual resignation of the husband from the supreme court. He negotiated to leave the bench in lieu of standing to criminal charges and the loss of his law license. He moved to Washington DC and joined President Bush’s advisory team on the appointment of federal judges. As for the wife? There was no do-over. No review of the pre-divorce set-up. She had trouble finding and paying an attorney, and like several of us, worked with the Gadfly, who caused this to become a media circus that exposed a pattern of longstanding ol’boy collaboration.

What was excluded from the investigation by the legislature was that the same abusive pattern threaded through courtrooms of most judges in the lower courts. Always look for what is missing in an investigation. It’s what is not in the box…the trick is to stand back and figure out what’s not there.

IMPEACHMENT RULES Both House and Senate worked off new rules suggested by Special Prosecutor/Attorney Joseph Steinfeld. The rules adopted were designed overall to investigate the narrowest possible view of as few judges as possible. Most impeachment study committee members were not lawyers, and struggled to overcome their natural deference of supreme court judges, as well as SJT’s the judges employed. They simply were unable to identify and call out the SJT’s.

CHAPTER

They used the wrong end of the telescope, in my opinion, to look at what occurred. It was narrowed to the least number of cases (3), the least number of judges (1), and they avoided the big picture of what had developed in courts since the Judge’s monopolistic take-over in the 1980s — of what had been legislative power. Other fatal deficits in the pre-impeachment rule-making are covered elsewhere. Impeachments were new — they had only the Clinton rules as examples, and the rules fashioned were fatally flawed and stacked against getting a conviction.

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But I was nothing but a muffled voice — one of the ex-wives of judges — watching. Our lives had been turned inside out by these judges. But judges, certain newspaper editors, and the same old pompous male politicians also worked to marginalize us — with ridiculing cartoons, dismissive language, sexist adjectives. But we were always there — sitting in the front row at their impeachment hearings.

91 COERCION TRICKS

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MOTIVATING A PARTY TO FOREGO A CONSTITUTIONAL RIGHT I used to see this almost ever case in charges of child abuse and neglect — for a parent to sign a “consent” before they can get their child returned. Basically the parent admits guilt or waives the right to sue or press charges for false taking. These are called “consent decrees” and they are often not knowing, informed, non-coerced agreements because of the disparity between the state and the defendant, the disparate education and knowledge, and the trauma involved for one side. 311 Ann S Kim, AP, Court denies Thayer request to move wife out, Union Leader B12, October 2, 1999.

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Prosecutors routinely use it to force criminal defendants to plea bargain before trial. They overload the charges, enhance the bail, and terrorize defendants with potentially long incarceration times. About 97 to 99% of criminal cases settle before trial. We already watched the Concord Bomber case involving giving up DNA. There are similarities to obtaining and using False Confessions and Plea Bargains, which by their sheer numbers appear to be the systematic manipulation of defendants to forego jury trials based on fear.

STRONG ARMING THE PARTIES TO PLEA OR SETTLE Trial is expensive, unpredictable, and often no-one wins in the end except the lawyers if the case drags on unnecessarily. A protracted process. If the case has no-ol’boy influences affecting the outcome, trial should be a big risk to both sides. Judges seek to avoid trials by a variety of techniques — which may or may not cross the line of offensive coercion and impact on one party’s constitutional rights. Strong-arming the parties into settlement may or may not be a judge trick depending on tactics and the relative power of the people involved. These fall into several categories. Strong-arming may simply be influence — not unethical pressure or improper coercion.

COERCIVE INFLUENCES Judge’s use their influence to settle cases before trial. If the parties “agree” then there is no trial and no record for appeal or review. It gets the judge’s statistical numbers up for the annual court accounting. It makes prosecutors and ol’boys happy to settle, rather than go to trial. It is good for everyone employed in the legal system. The only people who routinely get hurt are the non-insiders. If the judge fails to act to provide a neutral forum for trial — that bias can force weaker parties to settle because they cannot afford the resources necessary to try the case. This can be as simple as failing to hear motions for discovery (in the face of stonewalling) or applying any of the SJT’s primarily against one party; or something like sua sponte terminating support before trial. For example, if the judge sits back and tolerates an unfair allocation of joint resources (one side usurped the money.) The judge not only does not provide legal fees or support for a dependent side, but economically allows the weaker party to be financially strangled and forced into settlement. Often women settle because the other parent threatens to go for custody of the children — by agreeing to a skimpy or inadequate child support order, the issue of custody evaporates. Coercion by using the children. Running the clock. Or it can be as simple as enabling the more legally sophistically party to stonewall discovery of essential financial records right up to trial. If they are produced at all, it is too late to analyze and rebut them with an prepared expert. This trick often happens in criminal prosecution where the state refuses to produce the Brady records to the defense until any number of excuses are fulfilled: the investigation isn’t done and production will compromise the investigation….yada, yada, yada. The prosecution runs the clock out until it is too late for the defense to properly obtain or prepare a defense. On the other hand, a judicial trick I observed as a law clerk at Union Pacific RR in Sacramento that led to a successfully negotiated settlement was a judge who refused: to allow an unproductive settlement conference to end, even well after dark; to excuse attorneys for bathroom breaks (although he discretely availed himself of such breaks); who served lots of coffee in chambers during the settlement conference, thereby creating subtle pressure to settle. Improper civil case judicial tactics to force settlement and to coerce agreement have included: Inappropriate criminal remedies in a civil case such as threatening to jail defendants for non-jailable offenses; Coercing a defendant to give up constitutional due process; 515

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Ordering a defendant arrested for failure to pay a civil judgment; Ordering court bailiff’s to use excessive force to remove an attorney from a neighboring courtroom to attend a hearing in his courtroom. Inappropriate criminal coercive techniques include: Coercing confession by abuse, isolation, threats, deprivation Intimidation by excessive charging, double charging, multiple overlapping charges and exaggerated excessive threatened sentences, especially under mandatory sentencing guidelines Lying to defendants about allegations or charging facts Using known unreliable or negotiated false testimony of jailhouse or informer snitches Withholding exculpatory information indicating innocence Taking advantage of a defendant’s lack of resources, funds, professional advice Prosecutors and law enforcement who lie Abuse of law enforcement to coerce defendants to forego rights Fines to transfer defendant assets before trial The Bonser daily contempt fines are reported in prior sections. Whether $5,000 or $500, a daily fine payable to the other side is a way to transfer case assets to the other side before trial. For Bonser, contempt for Mom, Dad or Mary it was clear that the land in dispute — a 400 acre spring-fed lake (home of a Christian nudist camp operated by the family) could be exceeded by contempt fines. More feuding and vigilante judge examples A feuding judge threatened to lock up his neighbor and kill her dog. A judge who jailed a 74 year old man for three days who tried to contest a speeding ticket. Jail sentences up to two years in small claims and civil cases and for those unable to pay fines; Failing to set bail for those entitled to it. Telling a defendant to shut up and jailing him, then withholding any hearing or trial. The case of judicial activist Janice Wolk-Grenadier, jailed 22 days with due process for not paying her husband’s attorney fees — even before the date ordered for payment has passed. 14 of those days were in solitary, and Janice refused to eat (or drink, until guards brought her un-opened bottles of water.)

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The similar case of Mike Gill — New Hampshire judicial activist, jailed without due process and charging in solitary (reported earlier.)

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Excessive, illegal fines, routinely ordered. A form of vigilante justice, where judges run amuck doing their own investigation, working against defendants, and even jailing people they personally dislike or are feuding with. One judge jailed two 14-year olds for ten days for spitting, without ever informing them they were entitled to an attorney.

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TECHNIQUES WITH LAW ENFORCEMENT 92 COERCION AND OTHER GOVERNMENTAL AUTHORITIES

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We have already reported cases where Immigration, FBI, NSA, FISA, Homeland Security, DEA, and lots of local sheriffs and sometimes local police abuse citizen rights with deadly force, based on mistake, without valid orders, and as manipulated threats against citizens and legal immigrants. So this is a catch-all section, designed to call attention to the fact that it is happening every day in America — and being in court may be part of the problem. Those we expect to be the guardians protecting citizens from law enforcement abuse — are often the same people in authority who are looking away, causing it, or cooperating with illegal law enforcement acts. This is a section that will describe how judges systematically evade habeas rights and other Constitutional protections that Americans think they can count on — right up until they need to use it.

CALLING OUT THE NATIONAL GUARD Like a teacher in civics class, I ask people how many people in America can call out the National Guard? Few guess the correct answer: 51 people That should provide a clue as to who is empowered — The correct answer is each state Governor and the President. So when some little po-dunk judge calls out the National Guard to enforce his po-dunk order, such as bulldozing down your mother-in-law’s house for a zoning violation, you know in your heart that he is wrong. Big deal. If your name is Bonser, all that knowledge gets you is lock-up and an ongoing daily fine.

LOOKING THE OTHER WAY: TACIT COLLUSION BETWEEN JUDGES AND LAW ENFORCEMENT Symbiotic relationships develop between quasi-club members who often appear in court in front of the same judge. Some cases invite familiarity: the judge is the same; the prosecutor is the same; even the pubic defender is the same. The only stranger in the room is the defendant. Improper use of law enforcement is a method we’ve looked at which requires the tacit cooperation of judges and law enforcement. Judicial cooperation means the judge just keeps her hands off what is happening. Normally, a judge would grant a temporary injunction to stop the bullying and put the issue back into the courtroom. Neutering a judge is a concept like neutering a bull — impotent but still standing. This involves a judge who doesn’t issue an order to stop illegal acts — or at least not until the illegal act is completed. Then, of course, it is too late and there is irreparable harm. My experience — this is pulled off after dark, probably Friday night (over a long weekend) when the courthouse is closed with judges not publicly available. It involves pre-planning and set-up — including selection of which arm of law enforcement will cooperate to create a false scenario that law enforcement is properly authorized to break and enter, evict, trespass, taking, freeze etc. Law enforcement bullying is under color of law and may appear to be an official or legal action when it happens. Undoubtedly, some of the officers involved are acting in good faith, but the supervision officer is a compliant ol’boy — seeking and currying favor. Some cases demonstrate an actual campaign and involve coordinating local, state, or federal agencies against the targeted person; others a powerful ol’boy will solicit individuals from each agency sequentially (like a private vendetta). The judge’s role in cooperating is to ignore the big picture and turn her judicial back on the civil rights violations. She tolerates and imprints the harassment campaign outside court, but under the color of law.

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That’s the theory — here’s my example.312

Here’s my D&D case example of the law enforcement collusion between insiders, judges, law enforcement and various and sundry other VIPS in Concord, New Hampshire.

ROUND ONE AND TWO. THE CITY OF CONCORD GETS INVOLVED IN MY DIVORCE In the portion of my case dealing with possession of the house, after the trial default ruling, Chuck’s right to occupancy was stayed pending appeal and Chuck lost his motion for immediate possession. So he arranged to circumvent that ruling by having the city police personally deliver a letter to me Friday night, about ten pm at home to coerce me into leaving. There were two letters delivered by law enforcement coercing me to leave. One letter was written and signed by a new temporary city chief of police (on his first day.) It was also signed by the Concord city solicitor (the city’s in-house attorney) and the county prosecutor. The police chief wrote that he happened to be reading my divorce order and noticed I was to give occupancy to Chuck. He wrote he was giving me 24 hours to move, so Chuck could take occupancy ‘without incident.’ The letter said if I had problems with that, I should take it back to court, but in the meantime, he was giving me 24 hours.

ANALYSIS 1. TIMING The letter was hand delivered about 10 o’clock at night on a Friday, long after courts were closed for the weekend. Too late to get to court expeditiously. Or even to call city authorities.

2. CIRCUMSTANCES The letter was delivered by an armed, uniformed police officer under conditions creating a maximum impression that this was an issue of police power and law enforcement authority. A marked cruiser and uniformed officer, cruiser lights flashing after dark on a Friday night.

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3. OTHER CIRCUMSTANCES: THE CHIEF LETTER WAS DATED ON HIS FIRST DAY ON THE JOB.

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Writing such a letter is simply beyond the role of a police chief. Judges review and interpret court orders (and this one was on appeal and possession of the house stayed). There was no judge’s order finding contempt. Nor is a proper role of the police, an attorney, or a prosecutor to step into the shoes of a judge and make a ruling of contempt. But they didn’t exactly — their language worked around it — by suggesting, intimidating and threatening me indirectly.

4. A PERSONAL NOTE: NONE OF THIS ANALYSIS OCCURS TO YOU ON THE SPOT. The situation happens fast and feels abusive and wrong, so sometimes you have to trust yourself that when all the outward signs indicate what is happening is morally and legally wrong — you trust that. Sort out how it’s wrong will come later when you are less frightened and surprised.

312 Okay dear readers, I too am getting a little weary of using the details of my case as examples in this book. The trouble is, you just can’t make this stuff up. As a training tool, all the cases of the ex-wives have pieces of tricks, but this is the only one I know that has so dang much ol’boy material. So bear with me — we’re almost through the worst parts. And there are interesting judge tricks underlying the whole mess. Maybe one of you will get lucky, understand the tricks as puzzle pieces if this happens to you. You will instinctively know you need to file a civil rights suit and go win a big bundle of money. God Bless You if you do. Too bad there’s not a law school teaching judicial ethics and sneaky tricks. Max Boot, former senior editor of the Wall Street Journal, wrote a terrific non-fiction book called “Out of Order” but he focused on criminal case tricks and lawyers. I think the harm is much deeper, is systemic and it begins at the top, not the bottom of this special closed governmental system.

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5. THE ROLE AND DUTIES OF THREE CONCORD CITY OFFICIALS (a) If you were a new chief of police, what would you do on your first day of work? The fact that the police chief was on his first day in a new position of authority and he chose to spend a considerable part of it contacting the county attorney and the city solicitor (in two different buildings five blocks apart) to sign and deliver such a letter on the Chief’s letterhead — to me — persuaded me this was a big deal for the three of them. I was a city counselor, but that was no big deal warranting this degree of ol’boy collusion. What were they thinking? It seemed to me a lot of favors were traded that day. All three men appeared to be acting outside their authority and jurisdiction. (b) The Concord city solicitor sat in the corner of our city council meeting where he often appeared to sleep through the meeting. But when he wasn’t sleeping, he was suppose to provide legal advice to city employees and us city commissioners about city zoning and business issues. His advice and handling on a case of wrongful termination of a city employee had not impressed me, but I was the only member who was an attorney. But that was the type of law case the city solicitor handled for the City of Concord. (c) The county prosecutor was responsible for prosecuting crimes committed in the county. All types of crimes, except capital crimes (like murder) which were centrally handled by the state attorney general. There was no crime, nor any prospective crime. No jurisdiction. There wasn’t even a court order. What were these guys thinking? Where was the common sense? This was a civil divorce action, from an out-of-county-courthouse in Rockingham Castle, fifty miles away. These were Concord city employees writing to intimidate me in a matter they had no authority, no interest, no jurisdiction over. The case was on appeal in the highest court, so all legal action below had stopped.

Both attorneys and the chief of police appeared to be acting far removed from their authority or professional knowledge. There was no contempt order (the only way I could be catapulted into criminal court instead of divorce court) [i.e. civil court]) so why were the police and the local prosecutor involved at all? Having the city’s zoning snooze sign a letter to me about my divorce seemed ludicrous. It was an ol’boy show — a display of officialdom bullying.

6. INTIMIDATION Despite common sense, (which takes time to kick-in depending on each situation) the wall of officialdom suggesting I was a criminal and breaking the law in my own home — that idea as a legal conclusion was mentally staggering in ignorance. That was most intimidating. Nothing was logical or rational. But it was emotionally intimidating. And the fright makes you want to mistrust your own instincts. Pull the rug out from under yourself.

Their motivation was to force me to want to flee or go away. To accommodate Chuck with whatever Chuck wanted. So the message to me was — abandon your rights and leave him the spoils. That is the design of this type of coercion trick —

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It is one thing in the middle of the night to tell yourself that the government ‘they’ have no authority and all this is illegal, but it is another to wonder if you will somehow be ripped out of your home and bed and arrested anytime over the weekend. I don’t know how a non-attorney, and non-litigator could deal with this kind of official harassment, unless they have either lots of faith, or powerful friends with money to burn. Most people trapped in this kind of sneaky judge-insiderridden case don’t have the latter. Mine was the former.

7. COORDINATED OFFICIALDOM By having different branches of officialdom sign an improper letter, it made the letter seem — well — official and highly authoritative. For me, it was a matter of getting a grip of my fear, and mentally dissecting what was occurring. I will probably never know why a new chief would allow himself to be so manipulated so early on the job. I know he and Chuck has some prior connection, and Chuck had kept book and secret dossiers on people’s personal problems all of his life. He had this compulsive hobby for almost thirty years before I appeared on his radar. It got more intense when he became a lawyer or judge, who ostensibly helped people get through personal legal peccadilloes. It exploited people’s human weaknesses and mistakes. Regardless, this police chief/county prosecutor/city solicitor letter sent a message throughout the entire police department about what to expect. The three local VIP men who signed the letter had no official duty or responsibility or even any involvement in my divorce or this issue. I was not in contempt and there was no order of occupancy (such as in a landlord tenant or a rent eviction case). Nevertheless, these guys jumped in blindly to help another ol’boy in his divorce. Someone had information, chits, or barter to spend. This was pure scrum behavior — under color of law.

I didn’t leave my home. Not then. Several police officers stopped by my house later and apologized. One brought me a Concord PD sweatshirt and said it was a gift to me from the guys. I was greatly touched. Not all police are bad; just as not all judges are bad. But even good guys find their hands tied.

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THE MORAL DILEMMA FOR BYSTANDERS CAUGHT IN THE UNDERTOW

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They each risk professional retaliation if they stand up to internal corruption. Officers who see this kind of situation may want to help, but they don’t know where to go or how to correct it safely. I don’t know if these two officers were part of the SWAT team that showed up a few months later. I like to think they were not. We all want to believe in human goodness.

8. ILLUSIONS OF CRIMINALITY — AN ANTICIPATORY CRIMINAL Coordinating the different civic departments of local government to present the illusion that I was soon, if not presently, some sort of criminal (and therefore warranted an ‘official’, albeit unusual, enforcement letter) is such sloppy and illegal thinking, it’s a wonder how the city functions? Do they have a lot of civil rights lawsuit payouts?313 Judges do that too — make a suggestion in court that the victim could actually be the criminal needing lockup. It’s an illegal threat — but made with some crime of logic314 by someone with legal authority, and it’s also a civil rights violation. The city’s letter implied I might in the future be found to be a criminal. It was hinted at by even the existence of such a letter — much less the specific words and language. And it was a clearly threat to me.

313 The county attorney in Taos, New Mexico told me the town pays more than half it’s budget in secret settlements. A lot of discrimination and sexual harassment. I hope he was exaggerating. He was white, and shortly thereafter got fired and filed his own racial discrimination claim. 314 See Jamie Whyte, supra.

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The hint that the city and the highest level of county law enforcement (its prosecutor), in consultation with the city’s lawyer — had determined I should move my household overnight despite the absence of an eviction or contempt or similar court order. It makes me wonder about how these city leaders and professionals read other legal documents? Where? I had nowhere to go, no money to move, and the house still had 25-rooms plus the pool house, a 3-car garage, outbuilding, and now it included my law office. This was a practical consideration, outside of the illegal aspects, but it was also a practical reason to stay and fight. I hung a banner across the second story of the street-side of the house and put up campaign signs at the street that read “two-tiered justice.” The sheriffs came and removed them. It made the situation all the more ludicrous. It was a catch-22, designed to build maximum stress and intimidation for me to voluntarily give up my right to remain in my home, at least temporarily. It was designed to give the ol’boys what one of them (and therefore all of them) wanted.

9. LACK OF COURT ORDER The letter purported to ‘interpret’ not only the divorce decree, but state divorce law — something the new chief of police, and the city attorney and the city prosecutor had no background or expertise. On the other hand, although I only had about seven years of actual practice,315 I had authored thousands of pages of the state Family Law handbook book about how to practice all aspects of family law, plus represented hundreds of people in their cases. Nevertheless, it was intimidating having two attorneys and a police chief work to set me up. As usual, Chuck’s name appeared in nothing and was never mentioned. He wore latex to hide his behind-the-scenes work when he was setting up these and other collateral slapp cases against me. On good days, we used to call him Teflon-Chuck. Round Three: more Ol’Boy shared strategies and tactics The New Hampshire ol’boys frequently used the same woman private investigator to try to con each of us outsiders (their wives.) It wasn’t until we met at the Cathedral of the Pines Conference that someone else figured it out. Here’s my experience. I had just testified at the state house in a committee hearing, when this attractive, expensively dressed woman approached me in hall. She said Dennis Bishop sent her. (I would do anything I could for this top-notch forensic expert CPA.) She told me Dennis suggested I might help her. She implied she was his client. I agreed to join her for a drink at Margarita’s old jailhouse — a political watering hole steps away from the Capitol building. There, she insisted on a private cell so we could ‘girl talk’. In short order, she had the waitress bringing rounds of drinks until I had three all lined up in a row waiting. After a couple rounds of questions, she launched into her story. Then she eased into asking me for advice on off-shore bank accounts — an issue in my divorce I could not fully prove. She was persistent. Those tiny warning voices that protect me started in my head. I shoved her business card in my coat pocket, said I was gong to the bathroom and left out the back door of the restaurant. This was after the armed home invasion, and by then, where I lived was of great interest to everyone involved in my divorce and slapp suits. My husband was always insisting the various judges in each of many cases, force me to disclose my address on the record. I stopped appearing at my own hearings except by telephone. I had testified extensively in numerous legislative committees, and the Supreme Court judges had begun showing up in the front row with their press agents and media-spin lawyers. They wrote down what I said — keeping book. 315 After law school, I practiced several years as a solo attorney under the tutelage of Attorney Tom Bamberger, who later became Judge Bamberger. When Chuck left Congress, he joined me as ‘partner’. His choice for associate hire were mostly young, no-experience recent graduates where as a senior partner, he had 25 years or more experience over everyone else in the firm. It made him a small god in the firm, and what he said and thought counted immeasurably in our work. Yet Chuck had no trial experience except as a presiding Superior or Supreme Court judge. He managed the lawyers, the legal work product and the money; I managed office administration and support staff. At the time it came apart, there were 29 employees, but we were still the only two partners.

Judge JNad declared it was not a partnership, but a sole proprietorship (not mine), and with that in-chambers wave of his wand, my 8-years work founding the practice was transformed into unpaid volunteer status with no legal claim outside of a ‘marital equitable interest,’ said JNad. This transformative shift in the first hearing (an “emergency” unrecorded chambers conference with only a few hours phone notice) was defining for the rest of the case handling. With this type of insider case, the set-up almost always is overlooked and not reviewed.

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Chief Judge Brock was my husband’s former law partner and bench-mate. Those conflicts of interest never kept him from influencing the judge selection process. He also claimed by changing hats, he was free to pick whomever he wanted to preside over my cases. He also repeated word-for-word, the erroneous rationalizing language used from cases he was recused from. This same attractive well-dressed woman had showed up in other cases involving the ex-wives of judges, but no one linked the connection. She was a hired ol’boy mole. She was always ingratiating — looking for intimate stories, friendship, and naughty information, which she sold back to the boys. I had entered a protection program out of state and concealed my address. I was often followed. Later, I made calls to the Department of Safety. This particular woman had approached my CPA in his office waiting room, and he assumed she was a client of his partner. She had faked a story and asked him for my contact information because she needed my help. She was none of the things she represented, and after this restaurant episode, I made inquiries about her state license. She was unlicensed and known as a problematic private eye, avoiding licensure. She had once left our restaurant table, claiming she had a phone call. When she returned and she left the off-shore topic and got down to business — asking me to join her and her two best friends for their ‘sex club’ All I had to do was confess a story or sexual relationship outside of marriage, she said. Even at the time, it was creepy — what is in the minds of men who can think up and pay someone to make such a crude approach — to Pollyanna of all people. Chuck was clueless about me, even after years of marriage. At least two other divorcing judges had already used this same undercover woman — looking to find something to discredit their wives at trial. The Concord Monitor began running mocking cartoons of us (me in particular) — the exwives chopping at the ol’boys tree house. There was a lot of priceless information exchanged between wives from across the country at a retreat I held in Ringe, N.H. at the Cathedral of the Pines. Many of us met for the first time. These kinds of face-to-face encounters have an exponential value in terms of exchanges of information and bonding. I can only imagine what judges exchange at their week long annual state conferences at the Mount Washington Resort. I think the take-away is that it is important for non-insiders somehow to get connected with each other — as support, to expose patterns, to figure out the hidden agendas in law cases. I of course propose book study groups. If I can help, let me know. Hopefully, it’s not a way of life — just a face-to-face support network, while you are in litigation.

93 AVOIDING THE BIG PICTURE

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AVOIDING THE BIG PICTURE Just as Judge Conboy avoided the critical look-back (and fundamental fairness) in the Thayer divorce case (as did other judges in the Douglas case, and the Blaisdell case, and the Rubin case, and the Bonser case, and the McMinn case, the True case, and the Dean case and … hundreds of other cases that missed the basic elements of judicial fairness) so the court process divides elements into small chunks and handles each separately. Picking off the protective sentries one at a time. It is one function of the current practice of law to divide up in order to make logical, rational analysis, but to avoid the overall picture in making the final ruling, a legal technique that thwarts justice. It’s common practice, but is it right? Is it fair?

ID THE PATTERN. The sneaky judge part of this trick is two-fold: (1) Timing & premature division. The judges I see in their own divorce cases grabbing the marital goodies for themselves, and their ambush and premature tactics force their spouses and family members to turn over assets, leave homes, give up rights that can never be recovered, even if there is an appeal and new trial. 522

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(2) Special treatment that avoids normal statutory and court rule practices. The compliant judges involved cause and create hundreds of little special treatments outside of established practice at law. These each lead to some deprivation of due process for the wife. Wife is, as a result, denied a full opportunity and access to justice. These insider husbands are walking from the marriage with their finances more or less intact; the wife is financially devastated and is left to her own resources and that of her parents. She can remarry or move in with mom. The promised career woman’s track of the ’70s and ’80s is most often an illusion, especially for the wives of these 1960s ol’boys and their progeny. The illusion is touted only by judges as a balm for their own callousness.

REMEDIES FOR THIS PATTERN OF JUDICIAL ABUSE? State judges cover over and ignore appeals, complaints, and suits to correct this kind of abuse. Several have tried a federal civil rights violation action. It’s tough to get emotionally healed and organized enough to file a civil right or other suit within the tight time limits involved in filing such a suit. If you have been the victim of law enforcement/judge collusion and abuse, I don’t know how you can recover fast enough to file a federal suit for civil rights violations. I didn’t think about how to do it in my case until after the statute of limitations for wrongful arrest had passed. Efforts to reform the divorce system (not to mention the rest of the legal system) are approached in Volume 2. They include national political and organizational efforts; lay and lawyer groups; whistleblowers; and individual lawsuits. My personal favorite is a (non-existent) national movement to repeal no-fault divorce laws, eliminate mandatory bar membership (to free lawyers to speak out); and the substitution of helping-professionals for divorce lawyers through the mediation processes. Even I recognize however, that under an ol’boy system there is no incentive to change, to act fairly or in good faith because under the current court system, they can have it all.

IF I’M NOT A SPOUSE OF A JUDGE, WHY DO I CARE? The ability of ol’boys in court to call in chits and arrange for special harassment against a spouse in divorce is significant to everyone because it signals the extent of political and police power utilized by some judges and ol’boys to evade due process, legal procedures, and legal rights. If it happens to the wives of judges, it can happen to you, too. It is more visible when it happens to a judge’s wife, but the press often doesn’t give it much ink if it happens to someone with less prestige or media scandal-value. The appearance of uniformed police after dark on the doorstep of your home, informing you that you have less than 12 hours notice to move yourself and your stuff out of a 20 something room home — all without a valid or specific court order and without any legal process — is crushing. I attest. The use of police stationary, uniformed officers, blue and cherry-lights atop police cruisers, ninja swat teams, and intimidating threats — is frightening. It is a rare wife who will stand her ground in the face of this show of authority. Few victims know that sheriffs and police cannot ‘interpret’ and ‘issue’ orders at law, nor are they empowered to notice, hear, and try allegations of contempt or enforcement. Those issues are the exclusive province of judges, however law enforcement may, under these circumstances, attempt to coerce “cooperation” of a spouse into skipping over the messy and time-consuming court processes involved. Several wives or ex-wives of judges recognized the inherent abuses of authority when they occurred and refused to kow-tow to law enforcement bullying. Frankly, judge’s wives are more likely to stand up to such forms of bullying because they are less impressed with what’s underneath a judge’s robes.

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94 TRICKS FOR SPLITTING A CASE

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Several pre-trial splitting tricks have been previously presented, but each order of division whittles away the rights and claims of one party — obviously in the ol’boy cases, causes harm to spouse of the insider. To determine if the judge is favoring the insider, check the timing and the proportionate value and relative harm/effect of any precipitous premature orders. A corrupted judge will evade assessing the whole picture and the effect of the harm caused by this special treatment. Any awards of a major assets prior to trial removes the issue from trial and from the overall trial process of testing the evidence. They will claim there will be an accounting, but the house or business or asset will be gone forever and the accounting subject to a whole ‘nuther set of taking-tricks in the final order and afterwards. It’s too easy to discount all those little judge financial favors tossed to the ol’boys along the divorce path. It is the peeling away of trial issues to avoid the big picture, especially the overall health of the dependent family after a skewed distribution and nibbling away of the support orders in divorce. These are regular discernable abuses in special handling of insider cases.

PREMATURE ASSET DISTRIBUTION IN DIVORCE Timing: in both of the ex-wives of judges house-taking cases, the two female judges went to extra effort to avoid the standard operating procedure of allowing appeal of a questionable decision about a major financial asset. They deliberately ordered a house sold prematurely, or ownership transferred without right to appeal, without looking at the big picture or the relative position of the parties, or the good of the family, including children.

THE RELATIVE POSITION AND DISRUPTION TO AN OPPONENT

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This is personal — a tactic that disrupts someone’s life in a egregious and unsettling way. In each of the examples, the husband/judge-husband had moved and was comfortably ensconced in his choice of alternate housing (with and without girlfriends), furnished prior to divorce. Each of the wives had no alternate house and means to acquire that. So by forcing a premature eviction (armed home invasion) they could create maximum disruption in the case, and cause great (extra) emotional distress. It’s a form of psychological warfare. Since there was no question that each of the husbands had adequate income and resources to afford house payments, this early ambush and transfer home transfer served to send an advance message from the judge — no matter what you do, you are going to lose and I’m going to ruin your life.

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SUMMARY JUDGMENT DILEMMA This can be a triage technique. The judge dismisses one part of the claim and you think it is your best claim worth the most money if you win. Do you — take it up on interlocutory appeal and waste several years getting the issue reinstated? You won’t be able to bring it as a new suit later, so it’s do or die now. You probably skip it, and continue on with what’s left of your case — as Walt Foster did with his GE lawsuit that he claimed initially was worth about $30 million — you abandon the better claim and just move ahead in the case with that’s left over. Years later, especially if you win something — you won’t want to risk an appeal to pick up the better claim because then you risk losing what you have already won.

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Studying cognitive thinking and behaviors is a relatively new true applied science. The application would provide the world with concrete feedback on how judges are actually making decisions, notwithstanding what they say. Scientific study of judicial decision-making is non-existent, except for anecdotal records, like this one, and several theorist books of esteemed jurist. None have the narrow focus of how judges think — with confirmation from a measurable scientific framework. There is an early field of cognitive and neurological study of brain functioning waiting for research funding — to explode this area, that has a high impact on the lives of everyone. It is an exciting field because neuroscience has the capacity to confirm the anecdotal other factor traits that so often override the rule of law in the modern judicial thinking and reasoning process. Here’s the list of judge thinking and reasoning flaws seen often in courts: False findings of fact Heuristics and decision-making Erroneous logic — snake eating its tail Reinforcing a bad ruling When any reason will do Male version — gobble-do-gook Female version — because I said so The invention of judicial discretion — a trump card Nibbles Before trial, of course. The point of this exercise is to make sure the Ol’Boy is set-up in the best possible legal position before trial, with the least amount of incriminating evidence in the record. Done in small steps — a judge’s irregular and improper orders and rulings pre-trial will have nibbled away the defendant’s case (and energy and witnesses) long before trial, making the eventual desired ol’boy win, less obvious on the face of the final order, as well as much more difficult to prove and appeal. Ol’boy are funded in court all along the process. Whether by trading services, state salaries, and well-heeled clients with insurance. The appeals court has much less to work with if there is a series of improper orders eliminating exculpatory and incriminating evidence, than if the judge just blatantly blows off a strong, well-established case at trial. Each error will be looked at discretely and individually labeled a harmless error. Nibble. Nibble.

1. FALSE FINDINGS OF FACT FOF get manipulated deals with oral testimony that is erroneously mis-characterized or turned inside out to mean the opposite for the record. Findings of fact support the outcome, so false ones support … the outcome based on a false fact or issue, or a mis-interpreted rule, or a sliver of ‘exception’ or expansion. Translated: you still lose, even if a material fact is wrong.

2. HEURISTICS

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Heuristics helps judges speed up their decision-making by using thinking shortcuts. The shortcuts have inherent flaws. More than just categorizing judges into cognitive traits — whether or not they get reinforced by other members of the court and bar (they do), or whether they are predisposed to abandon their personal ethics to help out other members (they do), heuristics further explains the thinking flaws of judges in court. How they regularly use thinking short-cuts (not a thoughtful analysis and the hard mental work of processing thoughts, facts, and possible solutions) and why their thinking gets short-circuited by heuristics — especially in these special-handling cases. In these cases, I suspect, judges abandon the expected hard work of thinking. Instead they substitute —a faster process of applying familiar insider language-justifications to obtain a particular outcome. That thinking process is both inflexible and 316 Rhymes with ballistic. Heuristic is learning/experience-based knowledge, growing out itself. It can be cult-like. See three interesting examples, including the development of the Orbitz on-line reservation system at www.merriam-webster.com/dictionary/heuristic

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unreliable — especially when judges take the short-cut thinking away from the area of law it was established for — and apply it into a new applications, or new problem or new arena of law in a new case. But just like the woman private investigator buying me drinks in a bar to try to dig up divorce dirt —by design, it’s a quick, sneaky and dirty process. Meanwhile, judges don’t have to think too hard about what they are doing. Here’s a quickie summary of how people in general make decisions. Identifying the thinking process helps explain the courts’ systemic institutional problem.317 That will lead us to an overview of where judge’s have problems in their workprocess and outcome thinking-product. People make decisions — 1. by insight 2. by trial and error 3. by using misleading information 4. by using assumptions 5. by a mental set — this is the tendency to re-use past practices or solutions 6. by using a single feature model318 a. This is picking one reason and judging against it for an outcome b. For example, it can be a person’s race, status, or gender. c. This is what I am seeing often in the kinds of cases that get referred to me — where people win or lose depending on whether or not they are ol’boy insiders. d. It’s a simplistic decisional model and not much mental effort goes into the decision-making process. 7. By using an additive feature model — the same as above, but other factors are utilized to make an optimum choice a. This is good if you are buying a camera, for example. b. This process tends to be time-consuming, involves research of options, and selects the best from a field of multiples. 8. By using a process of elimination319 Where the characteristics of each option are set out in order of importance, and each is evaluated by whether or not it meets the specific criteria you identified as important. The options that do not meet criteria are eliminated until only one choice remains. a. My example is the element that the insider-status player must win.

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b. Therefore, the truth of each fact presented in the case is not necessarily relevant.

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c. The process isn’t relevant — might as well go fast as slow. d. Therefore, establishing all the facts surrounding the truth is un-necessary. For example, in the Rubens case, it was fine to accept the untrue or unsubstantiated representations of counsel based on her offers-of-proof. And the point of making Mike take up boxes of documents to the witness stand and providing him unequal time at trial? Harassment, inconvenience and confusion. Can you see how they were judge rulings totally irrelevant to his case outcome? e. The point is that the winner is decided based only on non-legal elements — insider status only. All other options are irrelevant. f. That’s why it is unnecessary to grant a continuance, or work to set a date when Mike’s expert could attend and testify about FMV of his business or assets. Those were not relevant to the outcome. g. Operating under this model, this element, of course, is inauthentic. 317 Schooler, J. W., Ohlsson, S., & Brooks, K. (1993). Thoughts beyond words: When language overshadows insight. Journal of Experimental Psychology: General, 122, 1 318 Psychologist Kendra Cherry, Decision-Making Strategies, How Time, Complexity, and Ambiguity Influence Which Means We Use, http://psychology.about. com/od/cognitivepsychology/a/problem-solving.htm 319 The Elimination by Aspects Model/Theory by Amos Tversky, 1972.

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h. That’s why the judge decision is largely, to the extent possible, done in secret. She has only one basis for the outcome and it is an inauthentic one. 9. What happens with any of these models where there is “risk, ambiguity or uncertainty?” Matters involving risk lead to two other heuristic models — namely — i. The Availability Heuristic model — i. The question asked by the person who has to make a fast decision and wants to take a heuristic shortcut is — how likely is it I will be caught? ii. This model often uses a similar past personal experience. j. The Representative Heuristic model — iii. This model may be more complex, but imagines more generally the type of person or some non-personal group experience — iv. then makes a decision based on how likely that some other judge has been caught, appealed, brought up for disciplinary hearings, or expelled — for similar actions — v. then the judge makes a decision for himself based on that group-experience information.

3. ERRONEOUS LOGIC Like a snake eating its tail, this reasoning pattern of thinking, when deconstructed will demonstrate some fallacy in logic and reason. Often, these guys aren’t that smart, nor are they logical; they’re making it up on the fly and reasoning backwards from the desired outcome to something that sounds reasonable (as long as it is not deconstructed using tools of logic.) They are based on connections and the ability to intimidate, in order to get by — not because of intellect or any ‘scientific’ law applications. Judges often don’t make sense, because from their elevated position on the bench, they know, under the representative heuristic model, they are unassailable. So when any reason will do, here is a list of common errors in logic and reasoning routinely made by judges. There is a wonderful book Crimes Against Logic, I recommend as a case workbook. I have picked my own personal favorite common logic errors committed by judges and added a few of my own. “Deeply flawed and sloppy reasoning” is often applied by judges to slant case outcomes.320

Reasoning doesn’t need to be legal, accepted, or valid. An oppressive order can even be patently illegal — but under legal logic, even an illegal order is legal until it is vacated, stayed or set aside. Judges are the court’s 3,000 pound gorilla. Such an order creates a new burden on a defendant321 to undo an improper flawed ruling, for example. Essentially it may be an impossible task because of the man-made legal principle about what weight is presumed for discretionary judge orders, for example.

EXAMPLES OF COMMON ERRORS IN LOGIC We have already seen how a lie can be true in court. Other common logic errors by judges include: Example One: The judge makes an improper assumption, and uses it to set up a false choice: for example, this judge asked me — Is it better for your dog to be whipped with a bullwhip or to bite the defendant?

320 Phrase referring to criticism by Jack Goldsmith on DOJ senior lawyers rationale for approving waterboarding and harsh interrogation methods. Reported in Truthout, February 14, 2009, A Torture Report Could Spell Big Trouble for Bush Lawyers, By Michael Isikoff, for Newsweek. 321 I’m using “defendant” but these tricks apply to any party.

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In addition to bad grammar, the Judge Swazey’s selection of two choices in the Bullwhip Jack case didn’t make sense. Neither of his choices were attached to the facts in testimony/evidence by the parties. The judge is trying to use his authority to force agreement between two erroneous conclusions. It is an example of a fallacy in logic.322 Example Two: Similar but slightly different are implied generalizations, where there is an inconsistency with implied underpinnings: Your bail is set at $1,000 or 2,000 yen. And another — I didn’t say it was your fault. I said I was blaming you. And another. This judge assumes facts not in evidence — I am ordering the husband to pay the tax bill, so he will keep the wife’s half of the real estate partnership. Example Three: An unsupported conjecture — this is similar to #2. This is a judgment or statement based on incomplete information. And unsupported conclusion that is used to make a judgment. You are a bad parent because your child was left unattended. Or You should be arrested for having your sheep in the roadway. (This incorrectly assumes sheep in the roadway is a crime — or at least a traffic violation.) Example Four: Causal relationships — the fact, even if true, is not the cause of the crime. For example, I was herding sheep and baby goats down the roadway to pasture. A cowboy in a truck threatened to run over the animals. The night before, in a drunken state, he said would shoot me. Even if what the judge said had been true, (that having sheep in the roadway violated a state traffic law) it was not the cause of the assault.

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Example Five: Fallacies in authority cited or used — either mistaken or deliberate.

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The appointment of a judge’s own successor after being recused was justified only by misinterpreting a stare decisis case ruling. See the example of the weaselly way the court misinterpreted M/Y Johnny to expand upon the term “a ministerial act.” Example Six: Misuse of words Using words with strong negative connotations consistently against one side Redefining or slipping in a new altered meaning for a word Equivocating — or making a slight intellectual gaff in meaning Using an imprecise word instead of a clear one, that alters the meaning and implies something other that what is evidence. The NH Senator Palumbo’s use of the word “contiguous” land parcels, to means A,B,C were contiguous to each other, not just A,B or B,C. Example Seven: Empty words This can be “inscrutable verbosity” or banal language designed to give the listener the learned, while saying nothing at all.323

impression of being

322 Jamie Whyte, Crimes Against Logic, Exposing the Bogus Arguments of Politicians, Priests, Journalist, and Other Serial Offenders. McGraw Hill (2005). 323 Whyte at p.64.

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It may also be the substitution of jargon — large, opaque, bizarre words used in place of well-know, ordinary, simpler words commonly understood.324 This and jargon are two of the most difficult — and I’d suggest studying the Whyte Book. Example Eight: The Moral lecture, The judge lectures you about some quasi or moral position — check the following —False moral sincerity is the joker card in the deck Are the judge’s statements merely polite, or is he using a authoritative moral tone? This may mean you are dealing with a respectable bigot. It is often a substitution for reason. The judge may make an implied generalization (for example, a negative summary comment about you.) Check whether the judge is raising a collateral issue to circumvent an actual analysis on the real point in dispute — i.e. an element or the point of the case? Follow it up enough to make a record. For example, you can ask what specific law? What he thinks you did to violate that law? What was the act of violation? Were there reasons or defenses? And lastly, does this court have jurisdiction over the subject matter and the relief of the alleged violation or does it fall under the jurisdiction criminal or some other court? In the case of the Western rancher/judge who suggested I was a criminal and needed to spend some time in jail for herding my sheep and goats down a remote county road — I knew he was wrong — and that this whole collateral issue of animals-in-the-roadway was judge-initiated. I recognized it instantly as bizarre and out-of-place. I had the whole body of state law with me in court — about daytime herding animals in New Mexico (an open range state.) The judge stumbled in court by mis-citing state law. He took a break to research, came back and lied about state law. Why would the judge want to support the other side? Why would the Jude initiate, then lie about a non-issue he raised in the first place? Why not just hear the case straight up on the facts? My best guess is this cowboy/judge didn’t want to make a ruling that would take another cowboy’s guns away as required under federal law? Or it was merely the cowboy-version of Insider judge bias? It took a couple months to get this judge removed, and, by way of payback, he nullified my annual court contract for mediation services. Judges extract a petty price. Ask yourself if a so-called “morals lecture” could be a subterfuge to evade the purpose of the hearing? Check to see if the judge has become a witness or assumed the role of the other side’s lawyer? Both are improper. This is similar to the judge technique of using rudeness, name-calling, other evasions to silence a party and to avoid ruling. Example Nine: “Shut up — You’re Boring”. See Whyte’s chapter on ‘shut-up-you’re boring’ for the expanded deconstruction of this trick (seen often in some courtrooms.) It is a judge silencing technique to avoid hearing one side’s evidence, law argument, or objection. If rudeness and incivility do the trick, the judge may use it as a short-cut to silence a party. Example Ten: Inconsistency in one person’s testimony. For example, there are two contrary statements — is one false and one true? Or are both false? There is almost never perfect consistency between two statements, but the shading and differences should be analyzed for accuracy and motive. An equivocation is when a judge makes a value-laden conclusion. It’s kind of a cheat.

324 Adapted from Jamie Whyte, supra at 66.

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The answer will come in a vague, or ambiguous or misleading manner or it can be an invalid conclusion based on terms that have two different meanings. Example Eleven: Begging the question — E.g.: the Judge orders two parties in an attempted rape case to exercise “tolerance”. The judges doesn’t get to the root issue, but substitutes some assertion of his own. (Attempted rape was not a crime here because…) This is a tool for avoiding scrutiny. Especially if it involves the judge’s own opinion (whether or not he states that opinion). It talks over/past objections and just takes for granted the issue in dispute. It is a favorite tool to avoid reflection. It avoids serious thinking especially about something that is unpleasant. It leaves the problem, issue, or bias intact and circumvents the charge or objection. The law prohibits this kind of conduct because it endangers people by not addressing or answering the underlying criminal harm. Example Twelve: Accusing the victim — Example, the judge tells a rape victim, you are intolerant or you should be more tolerant of the perpetrator. A variation is — you asked for it because you wore a revealing dress, or had too much to drink or went to a party at all. Whether he says the words directly or not, the judge accuses the victim/defendant of causing the violence or rape or whatever the charge is. Of causing her own harm. It is a perverse argument used to evade or ignore or minimize the underlying issue. Which therefore invites more damage or harm. It removes any deterrent. It pretends the case is about a victimless crime. Or the case is about a bad law. The judge fails to address the charges, reasons and law that brought everyone to court. Notice also how generalized the judge’s accusation is — study the word in context of it’s political and social use. It takes a word from one area (racial intolerance) and shifts it to another — the implication that the victim is lacking in social awareness or is prejudiced.

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Example Twelve: A disguised assumption

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The judge assumes something that begs the question. He uses language the implicitly assumes the truth of the matter disputed. For example, he says, “When did you stopped beating your wife?” He might take for granted exactly the thing that is dispute. He asserts a position and pretends it is an argument. Example Thirteen: A coincidence versus probability Events may happen in close proximity but are not the cause/effect of each other. The judge fails to determine that one is not the result of the other. This is a significant error in thinking.

4. REINFORCING A BAD RULING — A BIG NEED FOR DAMAGE CONTROL More so than almost any other profession, judges need to control the appearance of anything negative or questionable about judges. They have amassed political power and authority as a result of establishing an appearance of integrity and national trust. This power, they believe, will be abated or removed if Americans outside of the country club begin to question their rulings and orders.

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What this attitude reflects is of course the very concerns of the American revolutionary leaders — Akil Reed Amar, Constitutional author of a beautifully written biography of the U.S. Constitution, wrote about the New Rules for a New World that in the first sentence of the preamble reflect a new revolutionary emphasis on “the People” followed by the powers of congress “to make all laws” as “the supreme law of the land” (those laws enacted by congress — not the courts), enforceable in courts. The Constitution machinery was a protective federal system to avoid judicial overreaching and abuse, in a system called ‘checks and balances.’ It was the unique hope of the world — America hoped to rise above a personalized ‘rule of men.” No single branch could heap punishment on someone merely because it disliked him or his clan, as might be possible in a world where one all-powerful entity legislated expansive mush words that it then applied lightly to its friends and harshly against its foes.325 No one sent the memo to judges however, who have continue from roughly two years after the Constitution was enacted — to push for unfettered power. To increasingly flaunt their internal elite-ness within the court system, with those “mushy” court rules. This was the judge attitude as far back as 1200 and the Magna Carta, then recorded in Henry’s royal English courts, as well as Ecclestical church courts. This is how judge practiced law and assumed the power and station of a judicial elite — first practiced in America at the time of the founding of the first colony at Plymouth Rock (before the American Revolution). Those early courts allowed charges of hearsay and sedition for speaking thoughts326 construed as inconsistent with the thoughts of men in authority.327 That same attitude is secretly alive and well today in the American judicial system. Under that flawed thinking process — I am a seditious person. No longer a seditious attorney, but a common American citizen, just like most readers. Recognize the nuances. Nuances are secondary effects not directly in the pleading, but important in the ol’boy system. For example, the federal law listing sexual offenders on a list for life; the loss of firearms for a domestic finding; the duty to report unethical attorney behavior (or income tax evasion or any of a lot of moral and criminal activities done in their divorces) by bar members. Mine was a potentially embarrassingly messy divorce for the judicial system with a lot of nuances and implications. It involved an ol’boy formerly on the state’s highest court. Charged with adultery. The co-respondent was a sexual harassment client and alleged sex ‘victim’ of her previous employer; she was also Chuck’s client. And she was a law office employee, with an established court record of embezzlement and theft by deceptive taking. First from a former employer, and then a later one. Those employer-victims were all husband-wife partners in a family business; at least one set of partners were divorced as a result of sexual interference and theft at work.328 It was messy with unspoken nuances about legal/ethical rules about attorney-client impropriety; sex between attorneyclient; and/or a sex ‘victim’ (or not); sexual harassment of an employee; and perjury. Each of these nuanced issues could trigger a mandatory duty for the judge to make a disciplinary referral for attorney misconduct. This kind of behavior looks bad even for lay people, but for a high profile former supreme court judge it might reflect back or make implications for the legal system in general. No doubt, the two judges wanted these issues to disappear, so they assisted by orchestrating a series of cover-up rulings that would keep proof of my complaints out of the court record.

325 Id. at 63-64. 326 See supra, LaPlante, The American Jezebel, Anne Hutchinson — her words alone were enough to be tried for hearsay. 327 1789, Congress briefly passed a Sedition Act making it a crime to speak out against Congress or the Executive — but it did not apply to judges or courts. 328 The case/by the formerly married owners of Army Aviation. Also Hassum-Hicks v. Village West Publishing Co., U.S. District Court, N.H. 96 -580; 96-581M, and Kathy Hassum v. Richard C. Wright, 96-C-305.

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I guess I just got in the way of how it was supposed to go away.

The Story of Sisyphus. As a gift, the legendary king of Corinth shared Gods’ fire with man. As a punishment for his generous error in judgment, Zeus sentenced Sisyphus to roll a large rock uphill and affix it there. Every day Sisyphus was bathed in sweat moving the rock up the hill. Every night the rock was repulsed by some hidden force. No sooner did Sisyphus get the rock to the top of the hill than it rolled back down and he had to start again. It was a life work punishment for his kindness and generosity toward mankind. Unfortunately, in the example of my earlier trash exhibits, the court had already (properly) entered several of my exhibits between Chuck and the paramour into the trial record as trial impeachment evidence. (This was before the judge digested the professional conduct implications of those exhibits.) The letters supported the allegation of an attorney lying to the court, both in his pleadings and testimony. Other attorneys had already been disbarred for lying in their divorce case(s). There was an insider risk here, collateral damage requiring judicial damage control tactics. This was the secret motivation for a series of illegal judge orders about trash — for the purpose of eliminating my exhibits from the court file. There was an unknown quantity of documents I had collected from trash — all unidentified and in my possession. I maintained I had no duty to disclose them in discovery. (They were for impeachment only.) It quickly became clear I was not cooperating with how this case was being handled (the ol’boy courtesies), so there was a need for the judge to rid the court file of bona fide trial exhibits. And to triaging and prevent any future damage from any more unsettling trash documents I might produce in the future. Desperate times, desperate measures. The judge made a series of ‘short-cut’ orders that exceeded his jurisdiction and authority by issuing orders to turn over my evidence (to be destroyed before trial) to an opponent. He ordered daily fines for not doing so. I objected and appealed. Remember, this is still divorce court. So next the judge “deputized” his BFF Malcolm McNeill (the so-called guardian ad litem of the non-existent law practice) with law-enforcement powers to enforce his production/destruction orders —

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“by any means, to enter and take any trash documents, wherever located, from the defendants’ home or office, or the home or office of her staff or relatives.”

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I already had two burglary attempts and a fire at my home after Chuck vacated. This no-notice, no-knock, no due process search & seizure order —authorizing the no-limits use of unspecified force (any force necessary, is how the judge worded it) was an arrogant civil rights violation. Issued without bothering to adhere to the Rule of Law. It was judicial discretion aimed at frightening me, and it did.329 On top of that, I was to pay Malcolm for his court-ordered invasion. By chronologically analyzing the court’s process and reasoning, readers can begin to identify the inconsistencies in judicial logic, reasoning, and practices; legal inadequacies; and outcome determinative patterns of cover-up. Walking through the steps of analysis will also help overcome the kind of nameless fear this kind of order represents. It also helps others formulate and prepare a plan to deal with legal abuses, once they have been deconstructed. 5. The use of judicial discretion is the last and most important topic in this list of judge-thinking errors. We referred to it and will again as judicial discretion is the key to understanding the stealth take-over of the American legal system. This section is a small summary to give definition to this man-made privilege of judges. Technically ‘discretion’ is the last word in the dictionary just before ‘discrimination.’

329 It took almost 20 years for me to recognize — the face of tyranny. This is what tyranny looks like in daily life. In the midst of lattes and BMWs, bookstores, and work — it is how it comes about. I never thought it could happen to me.

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One bible of dictionaries is Webster’s New International Unabridged 2nd (1950) which describes discretion in law thusly: [It is] the latitude of decision, within which a judge decides a question arising in a particular case, according to the circumstances and according the judgment of the judge, not expressly controlled by fixed rule of law; (a) at will, according to one’s judgment or pleasure; (b) at the mercy of an antagonist, used of a yielding or surrender. (c) other elements in definition include “undirected choice” and requirements of “discreet” “prudence.” Discretion is the key to understanding the new contemporary operation of judging — how the Rule of Law and the Constitution have disappeared, sometimes completely in cases. So establishing a definition and tracing deviancy in application will help readers understand how this could happen, unnoticed across an entire branch of government.

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THE CLAIRVOYANT JUDGE — A JUDGE WHO KNOWS AND RELIES ON FACTS NOT IN THE RECORD We aspire to nominate judges with the highest personal traits. Clairvoyance is not one of them. When a judge knows too much, he either had ex parte contact or is making up facts to support the judge’s own desired outcome. Both of these examples were presented earlier for other lessons. Here they are examples of what is not in the record — but the judge knows it anyway, and becomes personally involved in the case in a non-judicial way — providing assistance not requested and obviously favoring the insiders party. That’s why readers have to get quiet and thoughtful and look for the things that aren’t there. Only by recognizing it quickly can the victim challenge the ruling. In each of these cases it took us years to figure this out. Example One: A Deaf Defendant. One judge repeatedly found new excuses (after remand from appeal) to deny a new trial for a deaf man sentenced to 30 years for alleged domestic assault. The judge’s reasons for denying a new trial were consistently based on erroneously “facts,” which judge cited in his denial orders. None of those so-called facts were in the record, and they were patently untrue. At his original trial, Tommy D. had a public defender who said mid-way through trial his client was guilty. The client did not know his attorney said this because he was deaf. The lawyer was supposed to be presenting a defense of medical impairment caused by welding fume-built-up in a tiny space causing illness and the offending behavior. Although Dean could read lips, he was sitting next-to, not across from his lawyer. The trial stopped, Dean was handcuffed and carted off to prison without explanation. It was three months before Dean first discovered what happened during the trial. Many thought the defendant innocent, including jail-house inmates who helped him write motions for new trial and raised his claim ineffective assistance of counsel. His first motion for new trial was denied because the presiding judge ruled Tommy failed to object to what his attorney said at trial. He ordered a copy of the trial transcript directly from the transcriptionist. By now, the Gadfly Theo heard about this man, and went to court to read Tommy’s entire file. Theo found the court version of the transcript was missing several exculpatory sentences, although the pages looked evenly spaced and transcript margins appeared normal. The three missing sentences were testimony about Tommy’s medical/mental status during the incident.330 Eventually, it was determined that the opposing prosecuting attorney doctored the court’s copy of the transcript to remove three troubling sentences. She was later

330 Linda Kennedy found so many alterations in Virginia court transcripts that she began collecting affidavits about transcript abuse.

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sanctioned, but the reviewing court pretty much ignored the significance of those sentences and the unethical prosecutor behavior. The prisoner found after careful reading of the transcript, there was no testimony and no evidence at trial-or anywhere else in the record about the origin or onset of his deafness. For the second appeal,331 a critical question was whether or not the client heard his public defender tell the judge that his client was guilty. It was an important point in his claim for ineffective assistance of counsel. So the prisoner reminded the court that because he was deaf, he could not know all of what was said in court as it happened. The same trial judge denied the second motion for new trial and the judge said the defendant became deaf after he went to prison. The truth and transcript just didn’t support this judicial rationalization; the man had become deaf in childhood following an illness. The judge simply made something up to deny rehearing the case. Further, the judge kept evading this claim and acting to protect the defective defense counsel. He even ‘sealed’ the name of the attorney! Erroneous clairvoyance. A problem with ex-parte information, it is it may not be true. There is no mechanism for cross-examining a judge who uses his own information. Non-insiders need to ask — has the judge done some kind of investigation on the side? Or was he fed that data illegally by the other players? This trick is so sneaky and illegal. There is no way to refute or disprove what a judge learned secretly on the side. The judge certainly isn’t going to tell you, and it is difficult to find out when and how the judge got the outside information. I favor asking the judge in open court on the record, but I’m not very popular in court, so you want to think that through. My discoveries always came years later, so I didn’t have the chance to ask the judge where he got the information he based his outcome on, (because it wasn’t from the court record)? Crucial is the fact that the judge has the information and disclosure is not in any court record. They call this Res Ipsa Loquitor — the thing speaks for itself (without further proof). This indicates judicial malfeasance. (Here, the judge was guessing wrong anyway — the defendant became deaf years before trial.)

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The record confirmed however that the judge was aware the defendant had trouble hearing but offered no handicap accommodation. He did ask if the jurors had trouble hearing over outside construction noise. At one point, however, the judge offered to close the windows to muffle outside construction noise if the Jury Members had trouble hearing.

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The outcome of this appeal was that the higher Court remanded the case back for further hearing on very limited issues— To be heard by the same biased judge, as is the usual custom and practice. At the re-hearing, the same judge created another version of facts—-supporting the next set of orders denying new trial. This time, the judge denied the motion for new trial because he found the defendant could read lips at trial and thereby knew what his attorney said at trial. People who experience this sort of bias often become discouraged with the amount of effort and money needed to bring these issues up over and over again. Finding competent counsel to carry on the case after a defendant is in prison is a huge problem that the courts are conscious that these imbalances mean most of the unfair treatment claims will just go away eventually due to attrition. The parties in prison don’t have the necessary resources to fight for their freedom. I perceive that blatant manufacturing of erroneous supporting facts occurs in cases where the judge has signals from the ol’boy network about what the case outcome is suppose to be — for reasons other than the facts and evidence presented at trial. It’s political. Over the life of a case it is difficult for any individual to recall what information has been presented at prior hearings or trials. If the case is appealed and remanded for new trial, unless you have copies of the transcripts and all exhibits and evidence, and copious third-party notes, it becomes hard to remember or distinguish what a judge legally “knows” and what information he knows that he should have no knowledge about.

331 By now, the prisoner had competent counsel, Attorney Sven Wiberg, who pulled together the briefs,. New Hampshire Supreme Court, Thomas Dean v. Belknap County Superior Court, Docket 97-54, October 15 1997. He was eventually released.

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Judges are not allowed to investigate cases independently or receive information outside of the presence of both parties or their legal representatives. So it is important to stay alert and analytical as to situations that trigger warning bells that a judge knows “too much” information from outside sources, and uses that information to fashion biased orders. It becomes a matter of catching the country club members in private conversations and exchanges. Hard to do if you don’t frequent the same clubs, meetings, and social or professional circles. Example Two: The Honolulu Advertiser real estate switch. In one case in which I was involved, a judge sua sponte fashioned a unique order transferring a wife’s interest over to the husband—ostensibly the asset was to compensate the husband for previously paying a relatively minor IRS assessment (back taxes which accrued during the marriage with a deduction — later disallowed by the IRS.). The property transferred was divided between the parties during divorce years before. She received half as her marital interest, but it had not yet been liquidated. The underlying asset was n partnership interest in an abandoned warehouse almost a square block in size in downtown Honolulu. The husband never asked for this asset and merely asked to be reimbursed, in cash. The judge’s order became an enormous windfall to the husband, when the land was sold to construct a new office tower housing the Honolulu Advertiser newspaper, and the partners were paid off a few months later. Early Santa judge? Transcript review and documents in the file show the judge had zero information about the wife’s partnership share. It was not raised at the tax hearing. If the record contained no information, and no evidence was presented, how did the judge know of this a valuable interest — when he ordered it transferred to the husband? Why would he care? If disinterested why would a judge initiate transfer of a pending-sale asset, creating a windfall for the man? Privately, the wife discovered that the judge often played racquetball at the Honolulu Club with the husband’s attorney and several other partners in the real estate venture. The insiders knew the offer to buy the real estate was pending. Of the dozens of anecdotes about how judges misuse information acquired outside of court, the reader message is to be alert to when this occurs. Cases containing this kind of judicial behavior will most likely contain numerous other examples of favoritism. Whether or not it is correctable in your case, the cumulative exposure and reporting of such judicial acts will tend to clear out or clean up the bad eggs in the legal system. Or drive them deeper underground.

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GENERAL STEPS AND TECHNIQUES OL’BOYS USE TO EFFECT DAMAGE CONTROL FOR EACH OTHER—

1. Discredit the accuser: ridicule or disparage the accuser as hysterical, unreliable, or vindictive — if the accuser has raised character issues, then attack her character back as an defensive move. 2. Implement collateral attacks (raising unrelated issues). These are good to refocus and force the expenditure of resources, energy, and they help divert the judge. 3. Rid the record of any supporting evidence. If it already is entered into the court record — purge the record — somehow. There are a variety of proven techniques in this book or just get creative to get implicating documents out of the court record. 4. If damaging evidence is not yet in the record, keep it out — somehow. Discretionary rulings leave no trail that appeal judges (generally) will look at, so throw a tarp over it by making the ruling ‘discretionary.’ 5. Dismiss accuser’s claims in the court record. Even if there is evidence or testimony — label it “unfounded” because, by this stage, there should exist no evidence still in the record. Anything she says or tries to demonstrate — just label it not relevant, a lie, not trustworthy, not substantial, and unfounded. 6. Avoid making a record adequate for appeal. One word decisions do this nicely. 7. Two Examples of Damage Control — by misuse of the Rules of Evidence, Civil Procedure or internal court rules

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Do not assume your judge knows (accurately or thoroughly) the Federal Rules of Evidence or Procedure (or their state counterparts.) I was once defaulted for an entire case, accused of committing an egregious criminal conspiracy (the worst case of conspiracy, the judge claimed, she had ever seen in her 6 month career as a judge) and my family and friends were similarly implicated. I lost the case badly because the judge imposed the harshest possible sanctions (financial and otherwise) that she could impose. They were nuclear sanctions, with ‘contempt of court’ financial penalties that went far beyond what the civil case normally would allow, as a matter of judicial discretion for contempt of court. Trouble was, there was no rule in any body of any court rules, that established a duty for me to do what the judge claimed if violated. There was no order either. There was no act of violation or contempt. And it couldn’t be willing and knowing because it didn’t exist. The judge didn’t know the rules, or the rule exceptions, but she was focused on ordering an insider case outcome, and much like Judge Coffey, she just slipped into a discretionary act/process that flipped the case outcome during the last ten minutes of trial. The Rule of Law gets abused, misused and ignored every day in courts all across the country. The Rule 35 Example — inconsistent handling of Rule 35 to pad or expunge the court file. Not to belabor the point of trash, but here’s the court’s lopsided handling by misapplying one of the Rules of Evidence 35. Judges JNad and Coffey used Rule 35 twice in the case as the authority for their orders. The application of the rule is unequal, and flipped in application, depends on which party would benefit — One way for keeping out the trash documents, and Rule 35 was applied in a different way for letting Henry’s “interview” into the court record as a bonafide deposition offered into trial evidence. This is a step-by-step narrative of one pattern of outcome-based-determinations. I leave it to you to decide the legitimacy of what transpired — First Hearing: At the first hearing the judge admitted as an exhibit, husband’s handwritten note to his girlfriend. This writing and other similar incriminating documents had been thrown out in his trash. The judge, upon hearing where the documents came from, laughed long and loud, then told the husband to ‘buy a paper shredder on your way home.’ By the time the professional misconduct ramifications crystallized in the judge’s brain, those exhibits were already admitted in the court record. And I had proffered in court that there could be more trash documents, if necessary to prove other unethical and illegal acts, and lying. Those unspecified documents from the trash represented a definite risk of impeaching future testimony. The ol’boy team, including the judge, needed damage control.

CHAPTER

Second Hearing: During the next hearing, the judge ordered wife (me) to transfer my trash harvest over to the husband to be destroyed. Because I balked (by filing objections for jurisdictional, due process, and other messy constitutional grounds), the judge ordered me to pay a $50 daily ongoing fine until I complied.

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That didn’t work and the fine kept growing, so the judge authorized his trusty BFF/GAL (Malcolm) “to utilize any means or methods necessary — including but not limited to — force — to make any unannounced entry at any time of my home and office, and my relatives’ homes and offices, to seek (and destroy) any of materials collected from the trash. And I was to pay Malcolm. Interlocutory Intervention: I filed emergency motions in the state supreme court (the one my husband formerly sat.) I asked them to remove JNad and to repeal his trash orders and the fine. Essentially, I was requesting supervision of a rogue judge.332 Eventually, the higher court vacated some of the most egregious parts of the order — but the supreme court order was obscurely worded, and it ordered me to turn over ‘trash’ to the supreme court “for safekeeping”. More motions by me staying any trash transfers, but the court’s responses sidestepped the jurisdictional and constitutional abuse issues. They just ignored those issues. And they ordered no relief except an oblique incomplete statement to take all my trash to the Supreme Court. Obviously cautious about looking bad, the Supreme Court issued nominal and inadequate orders of protection. The trash issue floundered in legal quicksand, with indecipherable and nonsensical rulings at two court levels over the next five years. But the mental images of these trash delivery orders — priceless.

332 Supervision of a judge by the higher court in some state is allowed by filing a “Writ for supervising control.” They are pretty touchy about this kind of special action.

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JNad decided to step down and assigned his replacement — Judge Patricia Coffey — and transferred the divorce case across the state to Rockingham Court. More Hearings — by the newly assigned judge: Undeterred, the new judge made a series of orders to remove and keep otherwise reliable and probative evidence out of the record. Those documents already in the court file were handwritten love notes, concealed and altered business records, evidence of expert depressed asset valuation, and other plaintiff’s trickery involving several attorneys. They were removed without notice. There was no record of which exhibits came from trash so someone at court did the dirty deed and blacked out incriminating inconsistencies. Exhibits just disappeared. Finding a reason; finding a rule to apply out-of-context or contorted. For justification for denying the admission of more incriminating evidence into the record, the judge made a new twist to an old well-established procedural rule of evidence. She perverted and reinterpreted Rule 35 — twice in this trial — twisting it one way to keep my evidence out; twisting it another way to let in the other side’s ill-gotten unreliable evidence. Rule 35 is a rule providing for formal discovery methods for making interrogatories, requests for admission and depositions. Okay, you’re saying, She can interpret court rules — that’s allowed. But not here. — Caroline, you just sound like sour grapes. Well, yes and no.

Rules are limitations on judge’s discretion. The represent boundaries. Procedural Rule 35 describes in detail how to make and respond to formal discovery about interrogatories and it establishes safeguards for fairness in taking depositions. That part, J. Coffey ignored — because to apply the rule neutrally would have meant not letting the Henry Handyman ‘interview’ into the record, since it had none of the mandatory indicia of a Rule 35 deposition, and it was coerced. The next example is how the same judge evaded Rule 35 to let in unreliable material as “evidence.” The rule doesn’t apply to non-formal discovery, and is silent about hiring private investigators or collecting trash from common community dumpsters. Or holding a witness hostage to coerce an interview. It has lots of language about formal noticed sworn depositions, but none of that applied here.

Judge Coffey was always undeterred by the absence of authority. I think that was part of the in-house judge-apprenticetraining she got at Rockingham Castle from Gray and JNad in the ’80s and ’90s. This ruling was souped-up judicial discretion on steroids, before we even knew what steroids were. Without case law or legal precedent or rule annotation and notice, Judge Coffey used her discretion to prospectively ordered all trash evidence excluded from the case. No one except me and my staffers Karen, Jennifer, and Dotty had any idea of what was there. There was no list. The judge had no clue, no law, no authority, and no due process procedure. All J. Coffey had was her discretion. I had photos of the overflowing dumpsters in the middle of a large parking lot. The Christian Mutual Company (our D&D landlord) had given me a letter of permission to take any and all trash from their building dumpster. (I was still a cosigner on the lease.) And the contents of the condominium community dumpster was delivered to my front yard after the collection truck drove off down the street with Chuck’s household garbage. The WasteManagement driver was paid $50 for the whole load. Hardly by any stretch of the imagination was that theft.333

333 Even today, I try to justify legally what was patently a criminal conspiracy by the judges.

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It didn’t make any difference what proof, fact or showing I tried to make that my trash collection was legal, or the divorce court lacked any jurisdiction over the issue, or the precedent authority of a large and compelling body of trash law; or the absence of any law supporting the Judge’s own invention of a Rule 35 theory of exclusion — J. Coffey ruled on brute power alone. My trash evidence was not coming in.334 In a courtroom where any reason will do, as illogical and inapplicable as any Rule 35 asserting might be, it was good enough for her at the time. Actually, she never explained Rule 35, just named it by number. That’s a minor trick many judges use — say a rule as authority but never name or explain or apply it. Very often, it is bogus as authority for the circumstances involved. But you are not given any opportunity to pick it apart. That’s the point. By this point, my divorce was a caricature of law — in the courtroom and in the media. Before the trash became an issue it was just a travesty. And no one except other victims cared about the systematic abuses of law, Instead insiders disseminated information about me to the general public to make me the foppish joke of it all.

Unequal application of the rule to favor the other side (Henry’s Imprisonment): Rule 35 got twisted one way to cover husband, and contorted another other way to avoid application/benefit to wife. Both uses were unique — and didn’t really apply to the facts of trash — but it was used as a quick citation trick (when any reason will do). But in the cool dispassionate analysis of time, it becomes clear that admitting Henry Handyman’s interview as a court-record was illegitimate and a ruse for a string of later rulings. Rule 35 provides safeguards for fairness, honesty and reliability in evidence. Saying the words “Rule 35” without insuring the due processes mandates, means that document as trial evidence is unreliable. So the judge made a farce by citing the rule without insuring its proper application. Discretion again. Except discretion can’t trump a rule. Not unless the court of appeals fails to consider the issue. The court on appeal did avoid review (correction and censure), so judicial discretion has expanded again into a place it is not to be.

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The non-deposition interview transcript. What the judge euphemistically called a ‘deposition-like transcript’ was coerced from a frightened mentally impaired handyman. The judge relied heavily on this un-noticed, so-called interview of the mentally-challenged man who went to the old Douglas & Douglas office, trying to collect his last paycheck from the plaintiff. The interview was not under oath, but at the end of a closed meeting in a sealed office with five plaintiff attorneys and their private investigator, he was threatened with arrest. After three hours of questioning, the man was ostensibly put under oath and a tape recording made of the last hour, with the language at the end —

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Everything you told us is true, isn’t it? His answer was, Huh?

His so-called interview was coerced and otherwise unreliable as evidence. As a “deposition” violated every provision of the rule: unnoticed, on-sided, not under oath, no transcriptionist, no record, and the surprise element. It didn’t prove anything except that Henry was abused. He had gone to Chuck’s office get paid his final paycheck, which had been wrongly held — wanting to be paid. He was detained the young Turks said they would ‘call the police’ if he didn’t cooperate. He was held several hours in a windowless room and threatened by various attorneys with potential but vague criminal charges. He was made to recant his ‘loyalty’ to me,335 and after coaching him for several hours, the lawyers turned on a tape recorder and recorded him. One of them transcribed it. It was presented at trial in yet another ambush. This was the so-called deposition Judge Coffey eagerly entered into the record as evidence. Unverified and unsigned, of course, and without opportunity to help Henry get a lawyer. 334 Of course, no one had any idea of what was trash-based evidence and what was not, but that was inconsequential — the judge made sure I knew this was her courtroom. See the God story at §___. 335 Henry was deeply traumatized and later broke down when he told me he had to say to them that I was a bit** . He was adamant he didn’t mean it, but they wouldn’t let him leave and they wouldn’t pay him until after he said that and made the recording. Had I realized Henry was going to collect his withheld paycheck … we would easily have found another safer way to pay him what he was owed.

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Nothing happened to Henry except he was deeply traumatized and felt guilty about causing me more trouble.336 Which of course, he didn’t do at all — he was not the cause. Like so many in this case, he was collateral damage of a tyrannical judge and litigation system unchecked.337 I didn’t know about this ‘interview’ until another hearing presenting this evidence into the court record. I objected. Henry, of course, wasn’t present at the hearing, and he still worked for me, but not Chuck or Chuck’s new law office. Coffey overruled hearsay and other objections that the “transcript” wasn’t a proper Rule 35 deposition, and it wasn’t freely given. Coffey said, I’m going to admit it and I will give it the proper weight in my consideration when I made a ruling. Two years later, this same judge was mis-quoting that ‘evidentiary’ document as fact — statements from that transcript — as justification for her later rulings and actions. Henry’s coerced statements were accepted by the court as reliable evidence, although it certainly did not meet the specific detailed requirements of Rule 35 for notice, attendance, and other safe-guards for fairness, honesty and reliability.

Here’s the question — if you are convicted by using a non-reliable illegal application of a rule, are you any less convicted?

8. MORE DAMAGE CONTROL — REINFORCING A BAD RULING Cover up and rationalization: Even two years later, the court returned to write extensively about their fairness and legality of these earlier rulings. It became a judicial theme, initiated and recorded, and even years later, the subsequent judge wrote 18 pages of a 23 page order justifying and making up an “official” record — pulled from hearsay, conclusions, made-up facts, and ex parte communications, the judge cited as ‘facts,’ self-serving reasons for those earlier trash orders.

THE EXAMPLE OF 18/23 Eighteen is the number of pages the judge spent reinforcing his earlier flawed rulings. Twenty-three is the number of pages in the order. The sheer volume of energy a judge spends writing 18 pages of self-serving dicta should be a tip-off that the judge is engaged in padding the record and writing a cover-up. As ‘official record’ it anticipates present and future challenges — has a moralizing tone — and apparently he thought it provided “cover” for when the case went up on appeal or to a disciplinary hearing. The cover was for the judge’s ass. The judge, by the effort alone, signals his knowledge that the earlier rulings were shaky and suspect. The late-filed record was not only self-serving but attempts to cover-up prior bad rulings from years before. By now, since you are still reading, you recognize there is an underlying pattern to dissect the judge’s writing — to identify and name the flags, indictors and other signals of judicial abuse at work: 1. The 18 pages mostly revisited and rationalized an old ruling from several months before. 2. The issue originally consumed a few minutes out of an all-day hearing, so 18 pages is disproportionate. 3. The 18 pages included self-praise and a lecture (moral dicta) about how fair the judge is. 4. It had a moralizing tone, which we now know is often an error in logical reasoning. 5. The 18 pages supplemented a court record made months before;

336 In fact, he never told me about it although he continued to work for me — never mentioned going to Chuck’s office or all the trauma the attorneys created for him. This hiding bad things is consistent with special needs people. In the meantime, they are easy to take advantage of and terrorize. There seems to be a meanness gene in some trial lawyers — to bully and manipulate anyone who crosses their path is considered expendable fodder. 337 A caution to readers — lots of mean and bad people instigate troubles for others — but my focus is not on them in these examples. There is a puppetmaster involved in each one — someone charged with and given a state authority granted power and control over the lives of others. Legal abuse starts and ends at the top of the food chain — so don’t get distracted by the petty meanness of lesser players — if they couldn’t get away with it, it would lessen; if there were professional deterrents, it would stop.

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6. The court sua sponte added new so-called ‘facts’ & ‘findings’, which came out of nowhere (except a guilty conscience?) Each case will be different — this illustration is offered in extended detail in order to provide an example for others to recognize signals. By becoming acquainted with the concept — that judges develop and use legal contortions to rationalize a biased ruling. Then years later they suddenly recognize that the earlier ruling needs patching-up to provide cover-up or reinforcement. Most people intuitively know when they are not treated fairly. Each unfair thread can work to make a tapestry. One bad ruling will lead to another, and another...until self-interest and protecting earlier rulings becomes the judge’s now primary focus.

9. MORE ERRONEOUS LOGIC, MALE VERSION: GOBBLE-DE-GOOK During his impeachment testimony, Justice Batchelder described how the supreme court sometimes writes appeal decisions that just don’t make sense. He called it gobble-de-gook. His admissions are reported in the appeals § but it is mentioned here because it is a regular trick in trial courts too. More often at the trial stage, it is oral — at hearing. It happens when the judges are unable to fairly perceive their own conflicts and biases. Or that they write inauthentic decisions. When they give one side a favor, there is a corresponding abuse against the other. Like a teeter-totter, you don’t have favoritism without prejudice. Logic doesn’t work in these situations, so they can’t reason logically. So judges pick selective facts, twist and distort them and otherwise try to make rational their outcomes and orders. Individuals who do not defer to nonsense or erroneous reasoning become an institutional enemy.338 I felt great frustration over the institutionally flawed rationalization made by Judge Johnson in a case on appeal. Chief Judge Brock used the exact same language and erroneous citation and twisted when he testified at the impeachment hearings. But Brock was recused from my cases, so how could he quote verbatim the same erroneous citation and logic?

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Basically, they each asserted that my seminal case that I cited to support my argument that JNad could not appoint his own successor (M/Y Johnny federal case.) They pretended that was actually the case that supported their opposite contention that it was perfectly okay for a disqualified judge to do ministerial acts — such as appointing his own successor. Their joke is — it’s the exact opposite of what the holding really is. M/Y Johnny found a recused judge is disqualified and may NOT appoint his own successor.339 Nevertheless, it was a very Clintonesque moment when each of the six or so judges quoted the erroneous holding over and over publicly for several years — as though saying it was so would make it true.340

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The nonsense phrase was spoken by the lower court judge JNad — then written by the Supreme Court Judges Johnson and Broderick, then testified to at the impeachment hearings by Chief Judge David Brock.341 They parroted the same incorrect ruling, with the same phraseology — “The task of reassigning a case may permissibly be accomplished by a judge who has been disqualified,” wrote Johnson. He jumped over entirely the material distinction that judicial discretion — acts where bias is manifest — are precluded when a judge is divested of qualifications — unfit — ineligible — even if he happens to be a “chief” or an “administrator” for the court. The justification provides for cherry picking a compliant replacement, if the disqualified judge just happens to be a chief.

338 Defer is a soft, polite word. Acquiesce is another. What about those who say — Your Honor, that doesn’t make sense. Or better yet, those who say — Your Honor, you have no authority under the rule to make that order. Once, in a much earlier career lifetime, I sold commercial real estate in Hawaii, and had to stand in front of a mirror practicing for an upcoming property showing to an Australian developer/investor. So I stood there practicing, three-hundred million for three hotels, to try to make it come out naturally and smoothly, without stammering. This is kind-of the same thing. 339 El Fenix de Puerto Rico v. The M/Y Johanny, 36 F.3d 136, 141 (1st Cir.) 1994. 340 I was downstairs at the hotel in Manchester with hundreds of young political troops screaming for Patrick Buchanan, while the Clinton’s were upstairs doing their joint CBS Jennifer Flowers interview. The I-did-not-have-sex-with-that-woman (Monica) and other lying examples of political spin answers got imprinted, making it easier to deconstruct other examples of stranger-lying-with-a-strategic-straight face. 341 Chief Judge of the Supreme Court David Brock was recused from my cases because he had been both my husband’s law partner, and because they sat together on the state supreme court for about a decade, and they had other personal contacts. None of that ever stopped him.

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That schizophrenic division of a chief into two halves (the biased half and an administrative half) of a whole man. It was the reason, Johnson reasoned, that the administrator half could still go to work when the other half was disqualified. This is an example of the gobble-de-gook Judge Batchelder testified about in his sworn testimony in the legislature. From the logical errors list, this is a fallacy, and a distortion and manipulation of words, to create ambiguity where there was none.

10. COURT PATTERNS THAT IGNORE AND DENY EQUAL PROTECTION AND DUE PROCESS What I found so stunning was the number of cases where the state court on appeal, covered up and failed to act or correct. The repeated problems caused by the same judges, who over and over, failed to disclose their conflicts of interest. Who when caught, refused to step down. The system knew because at least four cases had already gone up on appeal on this exact same issue — and were overturned. Over two decades since JNad was appointed. There were other judges who repeatedly failed to disclose conflicts of interest, and then appointed close friends and relatives to lucrative appointments. But I sure wasn’t aware of any of this pre-existing pattern, until I experienced it in my own case — which I was forced to take up on appeal — twice. George Blaisdell went back on appeal three times with three do-over new trials. Mary Bonser had countless appeals and complaints. And I was sure a thorn in the court’s side about what I thought ( a decade later) was the blatant but isolated failure of JNad to disclose his hidden conflicts of interest. The Supreme Court judges collectively and individually let all of us twist in the wind, so to speak, fighting alone and uphill, futile fights over and over — never being able to get a neutral courtroom. We were forced to appear in courtrooms stacked against us from the beginning of the case. Rather than just do the job of correcting errant judges once and for all —taking supervisory steps to remove them or making a clear open rule — they weasel around. What’s so hard about doing their job and preventing the same abuse in case after case? Why all the secret cronyism, putting parties in court through bad judging over and over? Okay, in the end, maybe twelve or twenty defendant cases out of hundred took a stand, appealed, lost, appealed, lost, appealed, lost.342 It’s like covering for a surgeon that keeps killing people in surgery. Why? What else would I be doing with my time for the last two decades if I wasn’t one of those dozen or so judge-fighters that took on the system in New Hampshire. Why subject maybe hundreds of people (or more) to this kind of abuse, rather than just stop the abuse — in the bud, so to speak?

11. SEMANTICS GAMES AND INTELLECTUAL DISHONESTY Instead, the courts invented new phrases to suggest something else: when the judge cannot ethically appoint a successor, then they called it “an administrative transfer.” That phrase ducks. It evades making a finding whether or not the judge “disqualified.” JNad and Coffey both argued with me in court that JNad was not disqualified, nor was he “recused.” Both said that. They claimed because JNad was chief, he could do administrative things other judges couldn’t do. So, as a judge, he had a fatal conflict of interest. But as a chief, he could stay on and do administrative things. Illogical reasoning. Black hat, white hat — same head. Semantic games don’t work on thoughtful people — and it’s intellectually dishonest to use judicial authority to do a biased act to disadvantage one party — the disadvantage one to begin with. So if some judge gives you the same treatment, learn their tricks, make a record and work to get them removed. If one rape case in California can generate 1.1 million signature to recall in a few days, the people may have a chance at reforming the judicial system.

342 The 15-20 % guesstimate refers only to that I learned about during my pending cases. There are 130 other judges in the New Hampshire. How many corrupt judges are an acceptable percentage? How many lives do they affect? What is a tolerable number of corrupted judges in service?

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From the logic errors list, this includes three styles of error in reasoning. 1. implied generalizations 2. use of equivocation 3. misuse of words Because it was done to cover up, I also apply the labels 4. ethically dishonest 5. intentional abuse of authority.

12. ERRONEOUS LOGIC, FEMALE VERSION: BECAUSE I SAID SO The marital master could be sweetie-pie nice in the courtroom, then flash in an instant into impressive temper-tantrums. She sometimes started a divorce hearing by having the lawyers back in her chambers where she had a bowl of candy on the table and gave us her lecture on how everyone needed to play nicely. Obviously, she must have been a mom, because when she snapped, there was no more talking — and she was prone to answer — “because I said so.” Because people expect courtrooms to be decorous at least, this childish treatment, plus the shows of temper were disrespectful and scary. You never knew if she was going to come back. Her because I said so to me — was her refusal to let my client introduce a photograph of the husband, standing in front of a hotel room door with his tongue in some woman’s mouth. There were dozens of photos — with the happy adulterous couple in different clothes. I asked the husband to identify the photos (he kept them in his car trunk) and the judge flared and walked-out. The judge was willing to listen to how the wife’s conversion to Jehovah Witness was the source of the marital breakup — but she was furious and refused to hear about the husband’s adultery. The wife had become a Jehovah Witness 30 years earlier — just prior to the couple’s marriage. Fault grounds for the divorce could have provided the wife the property settlement she needed to live — such as being awarded the family home for their three teenage children. But no — the judge wanted to hear that the wife’s religion caused the break-up, not the husbands philandering, and she skewed her rulings accordingly. Meanwhile the wife went to work as a split shift as a maid at a hotel doing minimum-wage manual labor (first outside job in her life) after 30 years of marriage.

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This was one of the first female judges appointed in the 1980s when it became important for the court to stop appearing so sexist. One looked around in court and there was nothing but privileged white men who all were the same socioeconomic class, race, education, privileges, and values. And they had to quickly find some women to share the power. This first group of women appointees was unique — see Ch. 1, § Girls Can Be Ol’boys.

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98 SCREWING AROUND WITH THE EVIDENCE IN A CASE

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THE RULES OF EVIDENCE Every state’s evidence comes from the federal rules of evidence — a separate body of rules that each state enacts and or modifies to cover the important handling of what constitutes proof for trial. I have referenced examples of abuses in other chapters, and don’t want to repeat those examples here, so be cognizant this is an accumulated example work. What is reliable evidence? Privileged and protected even if reliable? How to make objections, what are presumptions, and when is the court allowed to take judicial notice? How does one go about authenticating different forms of evidence? Who and how is someone a witness and what can the say and not say? Who is an expert and what can they say by way of their opinion? When is evidence patently unreliable (such as hearsay) and what are the exceptions? The good news is, there is a whole body of tried and tested rules about evidence — even if it is constantly expanding and contracting. So finding a text about evidence will provide a lot of already established procedure. Most attorneys will 542

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know this whole body of established procedure. There is a rhythm to presenting and moving evidence into the record, preserving an objection when it is not allowed. The other good news is the evidence system pretty much works the same across all courts. Except the ones with the judges who don’t follow rules. We went through the example of how Rule 35 was manipulated first one way and then another depending on how the judge wanted to put in or keep out evidence. The example showed how a superficial citation, without bonafide application destroys fairness and works as a sham cover-up. Violations by prosecutors have been grounds not only for reversals of verdict but dismissal of all claims where the misconduct — even at the grand jury level — is constitutional. Other relief has been quashing subpoenas and contempt violations, release from testifying, disqualifying prosecutors, expunging prejudicial matter, and recommending disciplinary proceedings against prosecutors.343 I don’t know if it is my bias, but I don’t see defendants and non-Insiders distorting rules of evidence. This seems to be an Insider and a state government game — where exculpatory material is withheld; criminal defendants rights are abused and ignored; divorce defendants can’t get necessary information at all, much less into the record. So the rules are set in place to require the Insiders to be fair — so if the judge doesn’t enforce the rules against prosecutors and Insiders, it is the weaker non-insider party who bears the burden of appeals to correct. What an inherent bias against the very people who most need protection.

THE WEIGHT OF THE EVIDENCE My example of Patricia Coffey’s weight of the evidence trick is stupid. Not only sneaky. But stupid. Chuck delivered a small truckload of bankers boxes to the third floor walk-up of his attorney Tony Tarbell in a little old house in Concord. A narrow twisted staircase to an non-air conditioned attic room in summer, where the boxes were kept. I was only allowed certain times to view these records — the records of my old law firm. There were 25 to 30. The number varied, depending on what Chuck brought or removed. No inventory. We just had to open each one and look at files. Chuck came and went, taking files out of the boxes. So what was there one day was missing the next. We had to trudge up and down flights of stairs to make copies, and pay Tony to use his office copier. This was American discovery, so he would provide 10 years of checks, but the critical two-or three important checks would be missing from each box, for example. I made pages of lists of missing documents. At the hearing on my motion for production, Judge Coffey looked at and accepted as evidence an 8 by 10 color glossy of the outside of the boxes (stacked on top of each other) and made her ruling that under the weight of the evidence rule, I had been given all the discovery necessary for trial. She ignored and refused to admits my pages of lists into the record. Did I mention a 3,000 pound gorilla in the room? It was named Coffee.

ATTORNEY PERJURY Funny that judicial ethics and prosecutorial ethics both presume that it is the other side that is lying, and the bulk of the cases, rules and citation assume this. Just at judicial ethics don’t talk about ‘lying’ per se (remember it is called ‘misrepresentation’ so all the lying tricks are in indirect language. Especially, lying by prosecutors, who jurors look at as experienced and knowledgeable law enforcement people. There are so many types of lying, that it is helpful to break it into stages — investigatory, grand jury, abuse of process, abuse of charging, nondisclosure of evidence, media abuse, plea bargaining, delay, jury selection, presentation of evidence, summation, mistrials, and sentencing. Here’s a sampling: Misrepresentation Lack of candor Deliberately eliciting inadmissible and prejudicial evidence (false evidence) Characterizing a witness as a liar (that’s a question for the jury) Bolstering a witness’s credibility before attack Subordination of perjury 343 Bennett L. Gershman, Prosecutorial Misconduct, 2nd Ed., Thompson West (2007) @ §2.57.

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Misstating the record344 Expressing personal opinions Sandbagging the defense with new theories in final closing argument Dramatically re-created a crime for jurors that is not accurate Omissive lying by failing to disclose or turn over defense material The courts look at a whole plethora of prosecutor misconduct and weighs factors such as bad faith, over-reaching, the number of misdeeds (is it one isolated or a pattern), and then generally excuse prosecutor misconduct by juggling, narrowly reviewing the misconduct, and underestimating the impact. It is very hard to get a new trial (or even a mistrial) even when the acts are “egregious,” “flagrant” “inexcusable” and “an insult to the institutional values of an orderly trial.”345 More likely this will be called ‘harmless error’ or the judge will say it can be cured by “curative instructions to the jury.” Less often it results in removal of the attorney, referral for bar discipline, or civil action for damages; civil rights action. There is a built in incentive not to stop prosecutorial misconduct, especially when the prosecutor is in fear of losing the case at trial. There is almost no fear of bar sanctions, but a big incentive to commit misconduct in order to have a mistrial declared, and new trial with better prepared witnesses, evidence, and arguments. Gershman wrote the temptation to engage in misconduct may be strong. 346

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Usually this is a prosecutor trick. State prosecutors often try to wait to the last minute to turn of Brady materials to the defense, and then incompletely or not at all. The lose it; forget to list it; overlook it; especially that exculpatory piece that will alter the outcome. This isn’t a game of football or horses at the racetrack. Cheating means someone goes to prison — sometimes for a long time. It mess with people’s lives, but as a game, not for public safety, but to win.

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Other prosecutor cover —ups involved overlooking state officials who fail to turn over material evidence — state documents just disappear from state files. For example, when the New York State — State Comptroller Alan Hevest — who was the sole state pension fund manager347 — resigned over “a minor felony” involved in his work.348 Pension funds are luring — Hevest’s job was to chose which investment companies and other groups would get to receive huge million-dollar chunks of pension funds. These investment opportunities were to obtain a return for state workers, who are mandated to place their retirement money into this state pension fund — automatically taken out of each paycheck. In the Hevest case, missing documents included the placement fee list — identifying names of brokers or agents who received placement fees and who recommended investments to Hevest. These people “became very, very rich.”349 It was claimed there was only one single list in existence — in the entire state of New York, and it was missing.

HIDING A MATERIAL WITNESS In the Arizona Yavapai deputy shooting case, the first officer to arrive at the scene was Deputy Ramon Rivera — widely known across the county as an honest cop. At my insistence, my brother’s (fourth) defense team was trying to find and 344 This is the one infraction that has resulted in reversal. See Miller v. Paten, 386 U.S. 1, 87 S.Ct.785 (1967). 345 Gershman, supra at § 12:16. Bennett Gershman on Prosecutorial Misconduct is an essential library staple for even a small law library, even if it is expensive and out of print. If you can’t buy this book, see a short summary on line. http://digitalcommons.pace.edu/plr/vol7/iss2/3 and it may help you decide whether or not to prioritize the purchase. 346 Gershwin, supra at 537. 347 Some entities with the gargantuan pension funds have a board that runs pension investment decisions — (California and NYC are two) but as I observed in 1985 in law school — the way those disbursement approval meeting are conducted raised a lot of practical and ethics questions. 348 In New York, the pension fund is $154 Billion. A state pension fund is an asset that I expect is often Insider-managed without proper oversight. I base this observation on my experience attending a California State Treasurer pension fund distribution meeting in Sacramento (during law school) — as a favor for Christine Del George — a lobbies/friend who couldn’t attend the meeting and I went in her stead. That experience is in the financial tricks chapter. 349 “A Suspicious Disappearance”, New York Times, September 15, 2007. Online edition, article 2.

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interview him. The reports filed on his whereabouts were sketchy at best and incomplete. The prosecutor said Rivera and another material defense witness had retired — three years before their 20-year mark. My ears perked up — that didn’t make sense, and theirs were some of the scene reporting that was missing and incomplete from the department files. The prior year Judge Sterling had ordered the prosecution to produce Rivera for the defense at trial, because the prosecutor objected to providing any contact information and generally was non-compliant about producing him for a deposition. Prosecutor Mark Ainsley was squirrelly — first saying Rivera was working in East Timor, then Haiti, and then Bahrain, and finally the Dominican Republic, where Rivera ostensibly could only be reached by satellite telephone once every 10 days, if at all. Ainsley was all over the map in a very evasive way. I dropped by Officer Rivera’s home and left my business card in the door. I received two anonymous phone threats from the sheriff’s department telling me to stay away from Rivera’s wife. She called me and said she was afraid her husband would be hurt — but she wouldn’t elaborate further, and I implored her to help. She seemed genuinely afraid. Rivera became more important as an impeachment witness for the defense after his deposition, because he had exculpatory testimony. He said there were prior incidents where the Deputy Sorenson drew his firearm at traffic stops, that he was dangerous, that he acted in an aggressive manner inappropriate for an officer, and that other officers knew and had left him and drove away at least one traffic stop because of his out-of-control aggressive behavior. Great. This cop that didn’t lie, reluctantly confirmed what we had already heard but could not prove because all the records were suppressed (or not produced, using a variety of prosecutor, sheriff and judge tricks.) Judge Sterling avoided enforcing discovery production orders from the Court of Appeals (an interlocutory motion) which should have produced Sorenson’s personnel and disciplinary files. That story is already narrated in earlier sections. It took an interlocutory appeal order, and still the judge produced nothing and the files disappeared. At trial, Rivera was long gone. Disappeared. And Sterling mis-remembered during trial that she had told the state a year earlier to produce him at trial for the defense. For weeks of trial, Prosecutor Ainsley told the defense counsel different locations around the world, and the defense counsel relayed that information to the court. At the time, I didn’t realize that the Prosecutor was avoiding direct contempt and lying to the court — by using the defense attorney to convey his false information. A year after conviction, someone called to say Rivera was working security on a Northern Arizona tribal reservation at their casino — had been there all the time. Since Rivera was presumably drawing a county/state pension, and his wife was still living nearby, and the personnel files went somewhere, his disappearance for trial (along with Detective Patterson and the personnel and investigative records) seems disingenuous. Prosecutor Ainsely and the Judge Sterling, each specially appointed and who were so helpful to each other at trial — both quit law shortly after.

SPOLIATING OR THROWING AWAY EVIDENCE A judge has duty to maintain trial evidence with integrity — the duty stems from rules about court administration.

Judicial discretion is limited by court rules. In other words, if there is a rule, that controls over a discretionary act. It is capricious and improper for judges to set aside an objective rule of court or procedure, including a rule of evidence to instead apply their own subjective practice. Nevertheless, numerous tricks of omission and co-mission are reported where judges, sensing that the case could be taken up and won on appeal on the record, will act to create a cleaned-up lower court record that won’t support an appeal or that might expose mal-administration in the case below. Incriminating court documents get removed from the court file without notice — 1. We have seen earlier the loss of child support worksheets and a letter from Judge Thornton’s supervising judge saying his salary would be decreased for purposes of child support. 2. Mary Bonser saw the handwritten JNad note to the clerk instructing a 10-day stay to add the Estate of Bonser as a defendant — she photocopied it from the court record, then it disappeared. 3. Tommy Dean saw the alteration of his trial transcripts, with the margins and lines adjusted to cover up his exculpatory statements.

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4. In criminal cases, the Brady duty to turn over exculpatory evidence to the defense also incorporates an inherent duty not preserve it from loss or destruction. Arguably the same or greater duty exists for a judge and clerk, although in case after case, we have already seen the destruction of evidence in court exhibits, court transcripts, court audio records. In criminal cases, this has been labeled denial of due process, and on a parallel plane, a judges of evidence bears an even higher standard of conduct and represents a constitutional violation. 5. The Supreme Court found that not all destruction of evidence reaches due process standards — so the material destroyed must have an exculpatory quality apparent before destruction and there is a convoluted requirement (state versus federal) about whether or not the evidence was destroyed in bad faith, which of course is difficult to prove.350

TRASH AS EVIDENCE — TURNING EVIDENCE OVER TO THE OPPOSING PARTY In my case, both trial judges tried to eliminate embarrassing “trash documents” from the record, even though they were legally collected and entered. (I used trash-source documents only for impeachment at an earlier hearing on whether or not to dismiss the adultery claim.) In other words, if someone lied in court, I had documents that my private investigators (or sometimes Henry) took from trash to disprove their lies. The law of trash supports not only the legal collection, but its use at trial. But no one wanted to hear or know trash law —that might have squelched all the sham rulings that followed to actually have a hearing on what the law said and how it applied in this case. This is ludicrous stuff — all ad hoc rulings with no notice or hearing. Despite the trappings, there was no dignity at his bench. It was a grotesque caricature of law. Really disappointing. So JNad laughed when I put one of Chuck’s mushy love letters with Florida trip reservation information into the trial record in impeachment. But later, without hearing, he issued an order for me to give Chuck all the harvested trash to destroy. No hearing, no notice, no law, no precedent. Just do it because I said so. When I didn’t, he issued another order fining me $500 a day until I gave it up. I still didn’t. After I filed an interlocutory appeal, those judges ordered me to deliver it all to them at the Supreme Court Building. Again, I didn’t. The judge and Chuck and all the cronies appeared very titillated by all this trash idea —that first handwritten love letter in the record was to prove co-respondent status. Everyone had been lying up their respective wazoos, and that trash document shocked them a little. Judge JNad laughed as he closed the hearing, and he told Chuck to buy a shredder. But he never had any hearing or entertained any legal arguments about trash law. After I didn’t take trash to the Supreme Court, JNad deputized Malcolm to do that forceful enter, search and destroy order. This is a guy who functioned without boundaries.

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OTHER EVASIONS OF EVIDENCE

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The good news is that when the judge actively begins to cover up, it shows they are worried about being caught. The bad news is, cover up alters the record and may destroy evidence forever. That’s why courts don’t want other recording devices in court — they want just one record — theirs. A party will not be aware that exhibits or documents are missing from the court record unless they physically inspect them: reviewing not just the docket listing, but the actual hardcopy court record. In my divorce case, the judge wanted the court record cleaned of those messy documents supporting the charges of adultery, lying, collusion to devalue the business, and other bad behavior. He ordered the record expunged of all documents that I collected from the trash — but no one knew what those were. There was no evidence, testimony, or ability to know which documents I entered came from those commercial dumpster pick-ups. So without hearing or evidence, he simply removed documents willy-nilly from the court files between hearings. No one received any notice that any exhibits were removed. And of course, they removed non-trash source exhibits. I think it didn’t matter at that point what I entered into the record — the dye was cast — and one way or another, the case outcome was pre-determined. It was a nuclear winter divorce, and under those terms, I would get nothing except liabilities.

350 Arizona v. Youngblood, 488 U.S. 51 (1988); People v. Trombetta, 142 Cal. App.3d 138 (1983).

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NOTE ON CLEANING THE COURT RECORD OF INCRIMINATING DOCUMENTS AND TESTIMONY Often, the ex-wives of judges complained that they could not locate exhibits in their own court records, and inevitably the exhibits that compromised husband reputations were gone. This included the 2 employment letters written by the judge/boss to a judge/husband and submitted to the judge/trier during trial (without copies to the defendant.) Each stated that the income of the judge/husband would be reduced in the future — by 50% or more and that discounted salary should be used to calculate child support. Also consistently missing were the actual child support worksheets, (these are forms used to calculate monthly payments, so everyone in the state would be calculated and paying under the same formula.) Judges often pay less child support than other people. Sometimes far less. I have felt sorry for children of Supreme Court judges, and lots of others. Sometimes they engage in physical abuse. Other times financial abuse. Sometimes both. How can top judges — revered in society — be so stingy and manipulative with their own children? It boggles my mind. Someone should do a data analysis study — of course, chances are good that all the essential court records will be missing or sealed. This is one thread that unhappy litigants complain about often: records in the control of the court get quietly removed, especially if they purport to prove bad behavior of the judge or an ol’boy litigant. Removing records may be another technique to clean up the file if the court is forced to make it public. It is helpful to insist on copies of all exhibits and pleadings contemporaneously to their entry into the court record. That means if the document is entered into the record, the judge immediately orders a clerk or bailiff to make you a copy and give it to you before the hearing closes. So each party has a full set of records off site. Otherwise, the smoking gun seems to have a way of disappearing from the court records. Ordinarily, the judge is to accept and exclude evidence (offered as an exhibit) according to established written rules of court. Then, once an exhibit is in the court record, a judge cannot alter, throw out, or remove it. After trial is over, the court either returns the evidence to the party submitting it, or may destroy it after giving notice to pick up the trial exhibits by a specific date. If there is an appeal, the evidence is maintained throughout the appeal and may be transferred to the reviewing court under strict procedures for documenting and certifying the transfer. A judge who wants to rid the file of incriminating evidence is engaging in dishonest behavior to remove incriminating evidence. It destroys the integrity of the court file before appeal. Evidence ‘ belongs’ to the party submitting it in court, however, if the evidence is particularly incriminating to an ol’boy’s case a compliant judge will not want it in the record. Why would a judge risk a career to tamper with or destroy evidence in the court record? Because they get away with it. Based on a judge’s history and ego, those who have gotten away with such misconduct in the past often repeat it. Because there is no system of public reporting, there is no deterrent .J Judges have learned — they don’t expect to be disciplined, reprimanded, and there is no adverse consequence. Without accountability judges do it because they can. At worst, a judge may be ordered off the case. Or maybe the case is reversed on appeal. So what? If they stay on the case, they will rehear it and manipulate to make the same outcome. If forced off the case, they will appoint a compliant successor judge . Not only will the successor cover up the original judges’ misconduct, but they will punish under the club rules — the critic of the ol’boy system. Passing a torch top a successor judge could mean the abuse will continues and even escalate, because of a pattern of loyalty and revenge in this caste system. The victim bears the cost in time and money of taking the case up on appeal — and because many cannot afford that cost and effort, the judge gets away without examination. Success for a victim means winning on appeal and having a whole new trial — maybe in front of the same judge. The outcome will undoubtedly be the same, but the reasons will be manipulated to appear legal. Some success. It’s like having your head hit against a wall and calling it success when it stops. However, even judges have limits. Perhaps the judge has been accused of tampering with the court record in an earlier (unrelated) case and will be looking over his shoulder. Especially, if a judge has been challenged in another case, he may prudently seek creative, but unconventional alternatives to doing a dirty deed personally — ergo, the judge will issue an order or make some nebulous provision of power authorizing someone else to destroy potentially damaging evidence and/or court records and exhibits.

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Example. This would be poor Malcolm — the order authorized: “entry at any time by whatever means and through whatever force necessary, from what ever location, including defendant’s home, office and her relatives homes and offices” to enter, locate and take (undefined) ‘trash’ gathered from my three weeks of dumpster collection…

This type of order lead to a lot of unanswered questions — Where would Malcolm look? It was a big house and office on three acres. It boggles the mind to imagine him making his search. Would he go through filing cabinets in my law office? Searching through another attorney’s files? How about client files? My desk? Or would he start with the wastebasket in the kitchen? What if he finds a grocery list? Is that trash? Or is it … just a grocery list? When does trash stop being trash and become just a letter or a document or a glob of leftovers? What about the wardrobe off the bedroom? Or the wall safe? Or the floor safe? Or the gun cabinet? Maybe compost in the garden? How frightful to receive such an order from your best friend to do that to someone else. It sounds so …. gritty and distasteful. Not to mention, it violates civil rights, and exposed Malcolm to tremendous personal and professional liability. On the other hand, to impute maximum compliance on my part, JNad also added to his order that Malcolm was authorized to use “whatever force was necessary.” If I were Malcolm, I’d be asking — What does that mean? Lethal force? Does he expect me to take a gun? A crowbar? Maybe a couple muscular guys from the gym? Enforcers? A team of trash pickers? (After all, someone said it was more than a dump truck full of trash.) Maybe just a group of ninjas. Maybe take a black belt in karate. Oh, don’t forget. She has a big dog — Jake the Rottweiler. Do I take tranquilizers? A blow gun to shoot the tranquilizers? A dog handler to use the blow gun to shoot the tranquilizers? Or maybe just some dog biscuits.

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[Note: Abigail Trafford never covered this kind of stuff in her book Crazy Time, Surviving Divorce. Maybe the judge should have read the book. He was really getting off on this stuff. Way too personally involved. He even ordered everything in court in this case to be delivered immediately to his home. I wonder if that meant the trash?]

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Ol’boys become so comfortable with each other, that it is possible for a judge to forget to appear impartial. Most non-club members will be too intimidated to mention secret signals from the bench, if they even notice them . (1) Hand Signals. An attorney (male, naturally) asked the judge to give him a hand signal, indicating when the judge heard enough for him a win. I can go on forever, the young lawyer explained. Just let me know when to stop. We all laughed at the time. But this signal, whether a wink, hand sign, or a cordial comment to one side are subtle signs of how the parties are doing with this judge. (2) On the flip side, is the judge who asks an attorney after hearing — How did I do?351 (3) KKK signals. Another insider signal was the Klu Klux Klan, and attorney Hugo Black defended a Klansman at a murder trial of a Catholic priest in 1921 — sixteen years before Franklin Roosevelt put him to the U.S. Supreme Court. At trial, Black used “secret Klan gestures to signal his sympathies” to Klansmen “seeded in the jury box”.352

351 An ex parte question asked by the judge to the opposing counsel in the hallway after court. 352 Robert Schnakenberg, Secret Lives of the Supreme Court, Quirk Books (2009).

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(4) Eyewinks. In a federal court case, where the defendant was represented by The Gadfly353 the magistrate winked at the prosecuting attorney while The Gadfly bent over to confer with his client. A gallery observer on the other side of the rail saw the wink and wrote an affidavit after the hearing was over. The Gadfly used the affidavit and other incidents to challenges the magistrate’s lack of objectivity, gratuitous unprofessional comments and apparent bias. He began mentioning the judge’s wink and wrote pleadings that put it in the record. He asked the judge to recuse. He later filed a motion based in part on the wink. Lastly, he faithfully referred to the wink at almost every hearing thereafter. Sometimes, he would wink at the judge, then announce it in the record. He nicknamed the judge Winky, and referred to him as such in his later legislative testimony.

GADFLIES A Gadfly is able to seize the moment because legal gadflies generally are not afraid of judges. Their interest in and representation of others is because of their fascination and interest in things judicial. They often are highly evolved in logic and intelligence. They are discussed at greater length in other parts of the book, along with names of several notable American gadflies. More Winks. Winks are apparently a form of bonding or signaling between judge and insiders. The same wink came up in the Thayer divorce between the woman judge and the husband/plaintiff. There were multiple winks between the two. It’s one small measuring stick to let each parties know who is top dog and has the judge’s favor, and which side can expect to lose big. Psychologically the judge lets each side know just where they stand. In all, it was a subtle but defining spectacle. People aren’t stupid. We all inherently understand where there is discrimination, even if you can’t immediately define or identify it. The non-favored party will have a distinct feeling of being inferior, lesser, not as smart. There is a real underdog character to this type of schoolmarm discipline by a judge who consistently punishes and rebukes one side while winking at the other. The psychologist and writer, Deborah Tanner, PhD measures bias and prejudice based on timing, tone, number of interruptions and other measurable patterns of conversational interaction, and her techniques would be helpful to document the extent and existence of judicial bias based on insider status, class, wealth or other factors of discrimination. A quick list of bad signs used by judges to convey their favoritism or hostility to parties. You know you’re in trouble when — 1. The judge flirts with your husband and you are in court for a divorce. Usually, I’ve seen this with a female judge and an attractive man getting divorced, especially when the men are handsome, rakish, rich, or powerful. It’s like they can’t wait. 2. Body and facial language. When the judge talks to you, she speaks slowly as though you were very simple. Or she gets angry a lot. But she leans, turns, and smiles beneficently toward the other side. 3. The judge winks or smiles a lot to the other side, but not to you. 4. Interruptions. The judge cuts you off repeatedly (or your attorney) and then says to you “stop interrupting me.” 5. Sit versus stand. Judges let favored attorneys sit; the other side must stand up each time. 6. Chitchat. It’s a bad sign when a judge enters and heartily greets the opposing attorney and then they talk about little league. Then the judge explains to you that he previously coached this defendant years ago in little league. Another judge spent some time explaining that his son and the other party were close friends. You’ll never win any of these. 7. You are in pro se, and the judge asks you why you don’t have an attorney? Then he says to you, you know what they say — only a fool has himself as an attorney (or some other idiotic comment.) 353 In this volume, Theo Kamasiniski, New Hampshire’s legal gadfly, is generally the gadfly in these incidents. He represented me, and several of the other wives of judges, along with others who could not afford a lawyer. He preferred pretty women, but vigorously and cleverly fought for those being battered in court, regardless of gender. Theo initiated suits and professional complaints against the powerful in state and national bar associations and helped the Associated Press expose the double standard practiced by powerful insiders. The bar association formed an online collective to compare notes, exchange resources, and cross-bred opposition in every court and in the legislature to prevent him from appearing in any case.

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(5) THE POPPIN’ RULE Watch also for unequal treatment — hyper-critical behavior toward the side the judge doesn’t like, and a soft/gentle helpful treatment for the other. Similar to Master Fishman’s threats against Mike in the Rubin divorce, Judge Conboy also admonished Theo repeatedly to stand when he addressed her in the Thayer divorce case. She also failed to notice that Attorney Brennan for the Judge Thayer almost always remained seated when he addressed the bench. This erratic enforcement of the stand-up rule means this esoteric formality gets enforced only against outsiders and those the judge dislikes. But sometimes Attorney Brennan would stand, and other times he sat back relaxed in his chair, commenting, interrupting or objecting. It began to get confusing however because Judge Conboy was initiating objections from the bench on behalf of Thayer’s attorney, and of course, Bill Brennan often wasn’t standing when the judge began her objections. It was unclear whether he should just stand up to “own the objection” the judge was making for him, or just remain seated. The judge initiated no objections for Mrs. Thayer however. So when Theo made an objection or responded to something, he always stood up. Eventually his standing annoyed the judge. She yelled at him, Quit your popping! What? Popping! You keep popping up and I want you to stop it now. At the end of the hearing, Theo tried to make a summary of his legal points, but the opposing counsel kept standing to interrupt him with objections, corrections and comments. It’s a signal of disrespect to do that in opening and closing statements, so maybe Attorney Brennan thought he could throw The Gadfly off his pace. Finally Theo could stand it no long and he addressed the judge, Your Honor, make him stop poppin’. If I can’t pop, neither can he.

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Judges often feel no compunction to mask their bias, and may institute a disproportionate number of demands for overly formal decorum from the outside party (such as a pro se) while not making similar demands from the favored lawyer/side. They also exaggerate concerns or draw out special instructions on how to act, what date to file, the process to use, as though a pro se is simple minded because they do not have a lawyer. It’s an Insider’s way of showing disrespect. Sometimes they talk extra loud, as though that would help an ignorant person understand. This usually happens just before they slice and dice the non-insider. Mike Rubin was threatened with default if he forgot to stand, but Attorney Marshall positively slouched in her chair as she spoke to the judge.

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Scoldings are another means of announcing to the courtroom which side is the inferior one. I now make a quick grid score card and keep track of these disrespectful slights once I begin to observe this kind of behavior. I thought Theo’s winking back and announcing the winks in the record was always rather clever. Humor doesn’t work at all in court. Judges almost never have any. If a judge makes a joke, everyone laughs heartily, but it is really never funny.

(6) THE JUDICIAL STINK EYE As an observer in a small non-crowded courtroom, I was waiting for my own case to be called. I couldn’t miss that Judge Coffey was repeatedly make rather long eye-contact with me. Like a staring contest. Each time I looked away, not wanting to engage her. The case just before mine was one about a woman who claimed she missed installment payments because she could not afford to pay the businessman at the other table. They were both in pro se. He was wearing a suit and carrying a briefcase. It was uneventful until the judge lost her temper and ordered the bailiff to take the man into custody. The bailiff hesitated (everyone was confused at this order) until she screamed at him to handcuff the man and remove him to jail. On her way off the bench, the judge turned and smiled smugly and piercingly at me. Some kind of message? The man was taken away so quickly he forgot his briefcase. It didn’t make logical or practical sense to arrest someone in a debtcollection case, particularly the party who was the banker. 550

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When she returned for the call of my case, she announced my case in a tone that scared me. I had to keep saying to myself, I’m just a defendant in a divorce case. She can’t lock me up. I’m just a defendant in a divorce case. (There’s no jurisdiction.) But it didn’t seem that way. What I understood internally but not intellectually — she was sending the message of her authority (right or wrong) to lock me in jail. And that did come to pass I felt so sorry for the poor man she used to deliver her message. Like Henry the Handyman, he was just more collateral damage.

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THE CRYSTAL BALL, COLOR CODES AND OTHER OBVIOUSLY CAPRICIOUS FORMS OF DECISION-MAKING THE CRYSTAL BALL A judge kept a black crystal ball which, when asked a question and turned over provided a changing answer. Apparently meant as a joke, the judge was impervious to his own inappropriate mockery of the legal system. Was it just innate bad taste? Or reflective of too long a tenure on the bench? Either way, this kind of judicial demeanor reflects lack of judicial sensitivity and gravity for any case.

THE COLOR CHART Similar to a child’s game piece, the judge kept a color-coded pie chart, which he purported to use to establish the length of sentences for certain women in his courtroom. For attractive, shapely and young women, he would correlate the color of their dresses with his colored sentencing chart — he selected the women he wanted to play his game.

QUICK DUMB JUDGE TRICKS The examples of really stupid and blatant tricks are not difficult to line up and expose. Sometimes the media has done that already, and it’s just a matter of cataloguing them. I call them the quick dumb tricks because everyone can see and understand them without much more than a list and a sound byte. They are the un-evolved racist, sexist, discriminators and bad-tempered mean and bully acts and criminal acts. It’s not the pink-and-blue hats for DWIs that are the problem to our liberty. What’s hard to see and report are the multi-stage cases — like my own — which build in layer upon layer of set-ups and overlapping judge abuses by career-long experienced manipulators. They are convoluted and take a effort and time to deconstruct — but to ignore them in a book about sneaky judge tricks would be to avoid the bigger-overall picture of what’s wrong with justice in America. The fact that there is no respect in the legal system for us — the nobodies. Courts could sanction and stop the abuses of authority toe ‘nobodies’ in court, but they chose to ignore and protect instead. A comparative handling of criminal acts, for example, side by side with how the judges themselves sentence others is another study. Right now, nobodies are expendable fall-out, with no ability to demand that judges and lawyers respect them.

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I tried to stand my ground at my case unfolded, but the emotional side of litigation like this is like receiving emotional body slams, and I can remember days when I disassociated from the stress. One day, thankfully Karen Testerman drove away from a court hearing where the judge ordered me to go immediate to an unnoticed deposition with the girlfriend’s attorney. Paul Maggiato had tried to make his mark as prosecutor in the Smart murder case — I found him to be another rude young Turk who yearned to practice Chuck’s style of grinding humiliating questioning. A few years later he shot himself in the proverbial foot in his own ugly divorce. Karen she drove down main street and I stared at a young amputee sitting at a bus stop, and had to remember how blessed I was to be intact in body. What I did — was stand my ground and I insisted repeatedly, that I deserved respect. What insiders do is inherently disrespectful, in addition to all the other illegal components. I suspect that it will be only the cumulative, blowback from lots of other people, that will make judges hear and pretend to correct these kinds of abuses. Judges are listening. They are sensitive to criticism. But have zero motivation to effect any change from within their current political system. Remember, this system is only in its third generation; court reform will not affect democracy, but only the entitlements of judges within the democracy. Once I was no longer under the protective umbrella of being an Insider’s wife, I found, like thousands of other nobodies, could not safeguard my dignity and respect — no matter how hard I worked to research and write cogent pleadings. I no longer take it personally, because I can see it is systemic — this lack of respect for individuals in court, where court-consumers have become an expendable commodity in the stream of law-commerce. Overall, they are thought of as lesser losers. Fuller provides seven anecdotes as examples of how individuals in other fields have worked to win respect from Ol’Boy bullies. Warning: Challenges to judges are dangerous to your health.

THE PENIS PUMP JUDGE — FOLLOW-UP

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The masturbating judge is no more. He was reported earlier. The assistant he fired for reporting him was paid a healthy settlement after she filed a lawsuit. I hope he got into addiction counseling somewhere, as it sounds like there were multiple addictions creating too many bad behaviors. The reminder to readers is — anyone can be appointed or elected judge under the right set of manipulations. Being a judges is not about merit or wisdom or temperament. The judge system is about power. So we end up with all kinds of ego-driven men as judges who lack human traits suitable for the position, but whole court branch of government works hard to suggest and imply that judges are worthy of our automatic deference and respect just because they wear a black robe.

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(1) THE JUDGE MAKES THE CLOSING ARGUMENT354 In the criminal trial of Carlos Guerrero in Santa Clara county, the defense attorney knew to be worried because the District Court Trial Judge Edward Lee, had been a police officer, and had come up through the ranks of the prosecutor’s office355 and as a judge, he was highly pro-active and had a predisposition for the prosecutor. In Guerrero, he had questioned a defense witnesses in front of the jury just like a prosecutor would. Still, it was a shock when at the close of trial, Judge Lee, carrying his water bottle, left the bench, and walked down to the space in front of the jurors. He gave a closing argument, explaining to jurors “his own closing analysis of the evidence. In his remarks, Lee offered reasons to doubt the witness testimony supporting [Defense Attorney] Eckman’s client, expanding on issues raised during his questioning.” 354 The Mercury News did a study of five years of criminal jury trial appeals in Santa Clara County, California. This incident was reported by Fredric N. Tulsky, Mercury News reporter, “How Judges Favor the Prosecution”, the fourth of a five part series, January 25, 2006. 355 Seventy-nine (79) of the judges in this study had former careers in the prosecutor’s office.

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“I never saw anything like it,” said the defense attorney. “It was like having two prosecutors in the room giving closing arguments. Only one of them was the judge.” By way of background, the crime was the alleged taking of a victim’s hat and coat. It was a parking lot robbery. The victim disappeared and didn’t show for trial. Two witnesses were gang members — who recanted their prior statements that the defendant did the crime. Even more amazing is Judge Lee admitted to reporters this was not the first time — “I sometimes like to use the podium to summarize my views of the evidence.”356 Other California judges thought the practice “dangerous” but legal.357 “It runs the risk of …stepping out of role of the impartial judge arbiter” said retired judge John Racanelli. Ya’think? Notice how they make such detached pronouncements — ‘maybe’, ‘runs the risk of’, and ‘it runs — rather than Judge Lee or ‘he’ runs. The language of deflection is always guarded and imprecise. I call them weasel words. These are blatant ethics violation acts, grounds for a mistrial, and warrant an impeachment proceeding. But other judges thought it ‘legal’ but ‘dangerous?’

(2) POOR JURY INSTRUCTIONS AND ERRORS We are almost at the end of the trial process and everyone is tired. Here’s where judges make the most mistakes and unethical ones will slip in some really sneaky tricks to insure the right verdict. It’s a last chance to influence the outcome. Judges sometimes give highly technical directions that will determine if a defendant is guilty or innocent, and if guilty — of what ? The instructions may be misleading or wrong —and can be the set-up for convicting an innocent person. One bizarre case,358 a defendant was convicted, based on bad jury instructions by Judge Lee — of committing two crimes for one incident (both robbery and petty theft)359 when they should have found either one or the other. Another case, the court of appeals overturned and remanded to a new judge who dismissed all charges that under Judge Navarro’s “poor jury instructions that produced any conviction at all.” She “wrongly modified the standard instructions in a way that misstated the law.” In other words, but for the judge, the jury in the case would have found that the “dirty broken down pickup truck sitting at a strip mall near his home for more than a year, with an expired registration and it was stripped of its parts” was junked and abandoned, and was not stolen. Brown spent months restoring it. Witnesses called it “junk” and “abandoned.” Judge Lee refused to give a standard jury instruction called “mistake of fact.” Jurors asked for guidance on abandonment. Lee refused. They asked for guidance again, and again the judge refused. In the end, the judge knew of juror confusion and refused to issue standard juror instructions. The jury acquitted for theft, but convicted of receiving stolen property. Judge Lee, who had said the case was ‘stealing a pizza’, sentenced Brown to 26 years to life. Thankfully on appeal, the case was reassigned to a more sensible Judge Teilh, who dismissed the case four years after Brown was imprisoned. This has the same ring to it — ever since 9/11 it’s been hard to fly. That bloated need for a huge hiring of ordinary people to be TSA security agents to check our carry-on luggage has become a disincentive to flying. TSA Jason Edward wrote about his observation of a dispute between three TSA’s and a passenger that ended up with the use of force. The dispute was over whether mashed potatoes were a liquid or a solid. The passenger said “Do you really think my mashed potatoes are a terrorist threat?” He called it a rabbit hole of bureaucratic absurdity.360 356 Id. 357 The jury was deadlocked in the Guerrero case, but it didn’t end there. California Supreme Court on appeal found nothing wrong with these judge closing argument practices. 358 Mercury News investigation, supra. 359 Mercury News investigation, supra. 360 Jason Edwards, PoliticoMagazine, The Parable of the Mashed Potato Police, February 10, 2014.

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(3) MANIPULATING TO WITHHOLD ELEMENTS FROM THE JURY, BUT RESURRECT THEM AT SENTENCING Failing to give corrective jury instructions. The judge failed to give any “corrective” instructions — which she claimed would overcome any juror bias that occurred after a daisy chain of prosecutor-judge level violations to keep out exculpatory evidence and witnesses in this law-enforcement cover-up case. We have seen how prosecutors and judges work together any why. In the Sorenson case, Judge Sterling used a whole passel of tricks to keep out exculpatory evidence about Sorenson’s mental and employee records and conditions. At trial, he surprised everyone by claiming PTSD. But other experts found it was actually an aggressive personality disorder he manifested since childhood. That expert opinion explained Sorenson’s inappropriate use of force and pulling his weapon repeatedly at other routine traffic stops (all Brady violation material.) All that ostensibly was in the files that Judge Sterling worked so hard to keep from disclosing to the defense. Sometimes you see discovery evidence just by freak accident or the hand of God — here the former deputy got carried away with his own drama. He was crying and testifying on the stand, and he told jurors about his PTSD — a mental harm he claimed was caused by the shooting incident. But both prosecutor and judge had withheld that material (it was a Brady violation) even after the defense got an appeal court order to review all the deputy’s records in his personal file, which should have included Sorenson’s medical discharge records. So if this PTSD mental health ‘fact’ had been turned over to the defense, it would have led to other exculpatory material about this deputy’s other acts of overreacting with deadly force. The file should have contained other incidents where Deputy Sorenson drew his weapon on motorist at routine traffic stops. In turn that would have led to more questions about how many other officers on the force knew Sorenson had a problem and was dangerous (3 or 4 at least). It might have led to evidence of Sorenson’s lying — either to the jurors or to Officer Rivera — the first responding on the night of the shooting.

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Withholding Brady material by the prosecutor is another huge and a common prosecutor violation of constitutional rights that judges routinely participate in perpetrating. The apparent idea is that those charged with crimes deserve this kind of administration, as guilty before trial.

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But for defendants, it was the same old impossible problem of proving a negative — what didn’t the prosecutor give up that which might have lead to proof of innocence? That’s why it’s so egregious when the prosecutor and the judge work collectively — as the Mercury News Investigation suggested happened in about one out of every five cases.361 (that’s 20 % for those of you who are collecting rate-of-error statistics on judicial performance reviews.) Judge Sterling said the PTSD testimony was “harmless error” and she could fix any problem with the jurors — by making a corrective jury instruction. She never did make any PTSD jury instruction — corrective or otherwise. But she did preclude jurors from hearing any defense cross, rebuttal, attack or impeachment on an invisible mental condition during the trial. On appeal, that becomes critical — the way the judge avoided the jury and then took up the juror’s role as finder-of-fact about PTSD for sentencing. In the cumulative, the SJTs are a form of stacking the trial evidence — slipping in illegal harmful evidence, then avoiding any corrective cross/rebuttal/and impeachment evidence and witnesses.

361 Mercury News investigation supra http://www.mercurynews.com/mld/mercurynews/news/special_packag.

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(4) THE JUDGE AS THE FINDER OF FACT OF A SENTENCING ELEMENT. In this case, the judge wove her bias between four inconsistent rulings, to prevent the defense from attacking Sorenson about his so-called PTSD, but to resurrect it for sentencing, when she improperly used ‘judicial discretion’ to make PTSD a sentencing element. At trial, she called PTSD a harmless error; for sentencing it was egregious reason to enhance the sentence almost double.

(5) POOR AND INADEQUATE JURY INSTRUCTIONS That amazing study by the Mercury News revealed that in 48 cases of the 727 criminal appeals cases they researched, “judges failed to give appropriate guidance on the law —or gave it in ways that bolstered the prosecution’s view of the case or undermined the defendant’s contentions.”362 I haven’t seen many criminal jury instructions, but my experience is 100% consistent with the 48 cases reported above. Our local magistrate judge said he simply reads the laminated card of jury instructions he got in judge training class — he had no idea there were questions, discrepancies, and alternate instructions possible.

(6) JURY NULLIFICATION Most judges will not tell jurors about this right — called the fully informed jury. It is the power of a jury to nullify a law or find a person innocent under the totality of the circumstances — not just a narrow prosecution POV [point-ofview]. Jurors vote their conscience. Maybe the law underlying the criminal charge was misapplied, or maybe it was unjust or illegal. Judges avoid an instruction that empowers jurors like this. In fact, aggressive judges have charged jury tampering in high profile cases where organizations have distribute literature to jurors outside the courthouse. Attorney Alexander Hamilton had a client accused of defaming a British officer. What John Peter Zenger had written — he admitted to writing, so it was true. Hamilton told jurors that “in addition to being judges of the facts, they were also judges of the law itself, and he said it was a bad law and they could not in good conscience convict anyone of breaking such a law. The jurors agreed.363 This historic right dates back to the Magna Carta,364 and jurors used it to acquit William Penn when he was charged with preaching in opposition to the dogma of the Church of England. 21 States have some form in their constitutions. The jurors in the Mrs. Bobbit case used jury nullification to acquit her after she severed her husband’s penis.

One member of a fully informed jury organization joined the group after a Meridian Township man in 1994 was charged with a crime because he refused to replace his roof, which had moss growing. Jurors refused to convict. It’s a handy thing to know, and the ultimate authority in a courtroom trial. There are national groups who try to educate citizens. Last night I heard two candidates for magistrate judge explain that they only read jury instructions that were canned — under the rules of court — they made up nothing and gave no more and no less to jurors before they went in to deliberate. Neither judge candidate had a clue what jury nullification

362 Id. 363 from “Reintroducing the fully informed jury,” (n/d) Helenville Montana. 364 Lysander Spooner, An Essay on the Trial by Jury, (n/d). Spooner was a 19th Century trial attorney. This was first published in 1852.

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is — putting the power of the Constitution back into the jury room — empowering juries to vote their conscience — regardless of what instructions the judge reads or fails to read.

(7) JUROR UNANIMITY The case of young Christopher Pittman — with the jurors confiding later about how confused they were — and pressured into thinking and understanding that they had to have a unanimous decision or they couldn’t go home. It’s simply not true. That is called a hung jury. This confusion is sometimes calculated. If a judge doesn’t tell jurors too much, the idea is that dissenting jurors will cave into a unanimous vote sooner or later. It too is a form of lack of instruction — about non-unanimous verdicts. And a judge error or deliberate abuse in doing the judge job to help the prosecution-team win a guilty verdict. Pittman, Smart, and my brother- the jurors in those cases all involved this judge-issue. Congressional attempts to weaken the jury process. Senators Strom Thurmond (now deceased) and Alan Simpson introduced a bill into Congress to change a unanimous verdict in federal criminal cases, so the vote to convict could be 10 to 2 and not be unanimous. But the point about juries is they serve as Constitutional protection for the accused — for a minority person to be protected from a majority dominance. The system was designed to provide an individual (minority) protection against group tyranny. Weakening the vote, weakens this historic-idea safeguard. In an era when criminal defendants have such an unbalanced disadvantaged position in court anyway, this kind of bill further weakens the few defendants who actually go to trial to assert their innocence. The coercion is so strong now, to admit guilt, that even the innocent are made to be afraid to go to trial by the attorneys on both sides in court. So we have a new prison system, to house the world’s record of incarcerated people, including people coerced by new judicial system to plead guilty even though they are innocent.

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Judges seem to hate the jury rights issue. They have reacted and retaliated against attorneys who try to educate jurors (contempt); public members who pass out literature (jury tampering); and a lobbying effort at the turn of the century to limit jurors right to decide to nullify a law. The effort wasn’t successful in nullifying the jurors right — but did result in some holdings that jurors don’t’ have to be told of the right. It’s a right held by jurors themselves — not the parties or the attorneys or the judge.

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Unanimity and a long holiday weekend. The Pamela Smart murder trial held the same kind of pressure on jurors — artificially created by Judge Gray with a threat to sequester jurors over a long holiday weekend. Friday afternoon implications and judge threats to jurors are commonly found in these cases. Judges who otherwise abuse, often employ this juror pressure. Everyone wants to go home, and the judge short circuits the juror instructions, especially the instructions and clarification about hung jury instructions. Gray knew jurors were crying, because he said he went in to comfort some. After that, they came to a decision in less than three hours. Less than a week later, some jurors were $135,000 richer for their juror experience. From fees for media and opportunistic, unprincipled interview fees.

102 JUDGES RULINGS — ONE WORD DECISIONS

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Denied.

MILLIONS OF CASES IN AMERICA DECIDED WITH ONE WORD. Whether is was the enormous appeals backlog in New Hampshire appeals caused by the judges impeachment proceedings (for almost a year) or the 10,000 annual U.S. Supreme Court Petitions for Habeas — judges deny most cases, often with just one word.

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I know from experience that these appellate briefs and documents are wrenchingly tedious and difficult to assemble, write, cite, and expensive to bind, file and mail. This judge trait of issuing one-word-decisions avoids the respect people deserve from courts. One word decisions do not indicate any of the thoughtful rational evaluation process that judges are expected to perform. As part of their work. As the integral heart and soul of their more mundane conduct of hearings and trials, and handling the jury. The decision is what matters. It is the goal, the birth of a new child, a new personal law in the form of a case outcome. It’s what everyone has been working toward for years in this case. So, when the judge flips-off the parties, and writes one word, it’s like having a difficult birthing process, and the doctor walks out and says one word to the waiting family and skirts away, never to be seen again. He walks out and tells the family ‘dead.’ That’s what writing denied represents from this family/recipient side — the death of one side’s hopes, work, investment, and expectations. This is what the fight has been about. I maintain it’s disrespectful if nothing else, but it actually is far more than disrespectful. Robert Keeton in his book, Judging spends close to a hundred pages discussing the elements of judge’s lawmaking choices, in not only the decision but the decision making.365 In an organizational system where the Rule of Law is often eliminated, which has been reduced largely to ceremony, form, process and judicial discretion, what happens if the output of the judge process gets reflected in one word? Dead. In the matter of the New Hampshire backlog — judges dismissed hundreds of cases quickly, without acknowledgment of whether or not the petitions were even read, much less considered. The statistical numbers reported by national judge case-clearance reporting systems looked great, when they weren’t hidden. So many cases were ‘cleared’ from the docket. From the other side — the consumer side, I have to ask — so is that the administration of justice? Or is it just good performance reporting for the judges?

There’s no one there but the national court statisticians watching.366 No one who can say, Hey. You’ve been away at Impeachment Proceedings for almost a year. Your work backed up. It’s time to put your butt in the chair, and your mind in gear, and do some serious catch-up work. We don’t pay you to malinger. I know you expect the state to pick up your multi-million dollar legal defense bill — (in fact, you are going to sue the State to have your defense lawyers paid out of the State General Fund. The Treasury that comes from our tax dollars.) But for now, you have some cases on appeal that have been pending as long as four years. You can’t just write one word for each one and dismiss them all. The citizens of this state paid you all along for your work, even if you couldn’t get around to it, so get to work now and write some responsible, thoughtful appeal case decisions. The person who said this, was no one.

New electronic docketing procedures are for judges not even to write and sign one-word orders, but to have the clerk of court put in a docket entry, which people have to on online and check electronically. Same issue. From my perspective, this seems like a lack of respect for the people judges are supposed to serve. It also avoids letting defendants refile with corrections or for new appeal (by not providing any reason for denying the appeal.) From experience, I do not automatically respect the reasoning judges put in the decisions they do write. Or the clerks who act like gatekeepers who routinely deter people from filing. But a formal decision is a tangible something that the litigants can chew over (why they lost and what to do next.) I’ve spent the Malcolm Gladwell proverbial 10,000 hours on some cases. I think I deserve a respectful judicial answer/response/decision. Dead doesn’t meet the minimum judge performance standard. In a closed society where outsiders are routinely humbled, exploited, subjugated and abused, it appears review courts view outsiders as losers clogging up their system. A one-word decisions sends the implicit message — you are not worth it. You may have spent a million dollars (and your entire life savings and whatever you could borrow off your credit cards) getting to this point of defending yourself in court. You put up your home, borrowed when you could, spent and lost everything. And you expected — a real written judge decision. One word decisions say — your life is simply not worth it. I am busy. You are not worth the time it takes to write a considered opinion. And besides, that leaves my thinking and reasoning open for questioning, for analysis, for challenge. So you will get one word. You are denied.367 365 Robert E. Keeton, Judging, West Publishing, 1990. Ironically Keeton is the (Christopher Columbus) Langdell Chair at Harvard Law School. 366 In the next chapter (Appeals), see how the national statistical reporters handled the NH impeachment case backlog. 367 See the Appendix for my op-ed on appellate judge work-schedules and work-loads.

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RULING AND COURT ECONOMY — WITH AND WITHOUT EXPLANATIONS Earlier, Judge Coffey wrote about judicial economy in an order that said it was not worth the paper and ink to write her decision. She was a regularly insulting person, so appointment to the bench gave her a throne from which to insult people trapped in her courtroom. Another judicial economy is the refusal to explain the basis of a decision, (using appropriate reasoning and language, how a judge made a considered decision at law.) Is it a self-protective institutional and individual judge act — to make the judge immune from flawed thinking, biased choices, and worse? The lack of information to the case loser can stop the legal process because the judge does not explain. There are lots of reasons it is hard to a case loser to file for appeal — the angle of prejudice on this playing field is in the range of 85-90 degrees of difficulty. For some (maybe most) cases, the outcome/result is announced and apparent. But if you are a you lost your leg in a railroad accident, and then lost your personal injury award, because of judicial reasoning, then whether or not the judge was “candid, explicit and clear” will impact not only your case, but other future cases.368 And people deserve to know whether or not to trust the judge’s process. So not only is it a small contempt and discourtesy for the people who spend sometimes years and hundreds of thousands and millions of dollars preparing and arguing a case. But one word decisions disrespect legal process, by requiring litigants to rely only on a vague and non-confirmable “trust” of their authority. After all the work done to produce and file in a lengthy motion or pleading, when the judge provides no reason why a party lost, and he is not required to — makes it hard to respect the system itself, and the person ruling within. It’s part of transparency that makes government processes accountable and reliable.

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On the other hand, I marveled at how thoroughly a judge wrote an long, wordy, meandering opinion that could have been resolved with one word — an order to reconsider a motion filed 24-years after trial, by Vance Lattime for release of his holster, gun and ammo used to shoot a man in the head. For a reconsideration order, the successor judge went through a history of the Valentine’s Day Massacre, Bonnie & Clyde, and other salacious historical events, and he reported, listed and critiqued various documentaries, films, books, Oprah, Greta, and HBO and other television investigative reports that focused on the trial errors of Judge Gray, and other lingering public concerns about unfairness in a television murdertrial process. Judge Andrew R. Schulman wrote 14 pages of dicta for a pleading that is customarily a one word decision: granted or denied. This was a motion to reconsider, not a final trial order or an appeal decision, but a reconsideration of a post-trial motion. The length, genre, and snobby-criticisms were all tip-offs.369 For example, he called the people involved B-List Celebrities. His pseudo-sympathy concern that the gun will become an e-bay profit-maker is another. It is apparent from his media review, that the judges are listening to what the nation is saying about egregious improprieties in a murder trial more than two decades before, and that it is the institutional role of this judge to fight back to defend the honor of the castle. But he deflects the point that the ongoing media scrutiny of the trial two decades later — it is not about Gregg’s murder event, or even the salacious details. The ongoing national scrutiny is about the trial judge case handling, and whether the judge made appropriate rulings, or otherwise acted at trial to create an inherently unfair prosecution. Schulman’s wordy response is designed solely to deflect criticism away from the judiciary. He tries hard to appear scholarly, and all his dicta was unnecessary and inappropriate and over-involved. The language and ‘review’ is very pseudo. What was reasonably a simple yes or no answer — release the gun or not — became an officious loyalty campaign to shore up the judiciary after more than two decades of persistent national media investigation into the fairness of that trial courtroom. Twenty-four years later, and the successor judge is still defending the trial, the castle, and Judge Gray, years after Gray passed on.

368 Keeton, supra 456-457. 369 I first intuitively recognized this in JNad’s self-serving, self-congratulatory order in my divorce case, where 18 pages out of 24 were spent recounting what a great job he and Malcolm had done, and what a difficult schmuck I was. This kind of political campaign spin, disguised as a court order, just doesn’t fit the mold. It takes reader perspective, but if inclined, readers can develop intuition about this kind of long and rambling dicta/order.

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So the judge’s rant obfuscates the point of all those documentaries and interviews. It’s not about perpetuating Bonnie & Clyde. The national commotion two decades after the trial is over, poses questions about inherent unfairness caused by the Judge Gray-Clint Eastwood trial handling. Was it a fair process? Did it meet Constitutional standards? By name-calling the defendant(s), the successor trial judge demonstrates that state court judges are still acting blindly, even though all across the country, people who are not judges still are asking questions about flawed judge and prosecutor actions and omissions.

This pattern of decades of defending bad judging (by continuing to attack and name-calling the losers at any opportunity, even decades after the case is final) demonstrates the organizational policy that does not allow chinks in the castle wall. Fighting. Refusing to acknowledge even the slightest error in judge performance. (Or alternatively, being silent.) all are evidence that this particular institution has an ego — a personality that never admits error for anything. It’s a war mentality. Might is right. For those on the other side (the losers) losses are personal, painful and result in actual suffering. But as I can attest, this is not a grudge match about losing. For me, it about cheating. To feel that the judge cheated is what makes losers angry. It’s a reason some losers keep coming back — filing appeals. I know how it is to hope that somewhere in the court system, someone with authority and integrity — will see the tyranny and flaws and abuses, and be concerned enough to listen and correct it. I used to feel that way — I graduated law school inspired, resolved to help in the world. Advocate. Right wrongs. Fight bullies. Seek justice. The bad judges were anomalies — their bosses would be outraged. Would listen. Would restore justice. Would confirm my trust in them.

Those who still have faith are the ones who continuing to complain, to appeal, to re-file. Judges should like them. They still have trust. Courts and clerks shouldn’t hate and belittle these people who lose and ask for review. They are the ones who still believe in the integrity of judges. Until the judges clean up their acts, maybe these types are the second best hope for reform of courts. I don’t believe they are going to do it on their own, and believe legal consumer education is the first step to effecting organizational change.

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Your Honor, we’ve had over 400 motions in this case and she hasn’t won one, boasted my husband. It was true. He was keeping score and his team tally was 400 to zero. It was so bad, it was good because it proved to me that there was no way I could ever win any motion, much less win back my assets in this rigged divorce court. [Nor could any of five, my short-lived attorneys.370] I told the reporter the judge was fixed. The bar went ballistic in the press. That’s the point in my lawyer career when I discovered attorneys have no First Amendment right to criticize judges. The Washington Madam. The only other case I have found that identifies this particular opposition strategy (of choking the opponent with motions and slap suits) was that of the Washington Madam, Deborah Jean Palfrey, who was charged by the IRS and the U.S. Post office with 4 counts of racketeering and one count of money laundering over her fantasy fulfillment business. Her lawyer team generated “more than 50 [motions] in about a year’s time,” reported Joe Palazzolo.371 What a piker. She should have hired Chuck.

370 I started with a team of two. After appeal for re-trial, a team of three. 371 Courtroom Fireworks Predicted as D.C. Madam Trial Opens, April 7, 2008.

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This is probably as good a time as any to talk about slap suits — those legal bombs designed to pin down an opponent for the kill. In my divorce, there were about three dozen collateral legal actions and cases — including two dozen retaliatory Bar Association professional conduct complaints and actions. Most were stimulated and instigated behind the scenes by my husband during our divorce, although a couple came from former clients, (mostly trying dodge payment of outstanding legal bills) during and after the D&D firm breakup and hostile takeover.372 I didn’t know any of that was coming. That’s not counting the 400 divorce motions and four divorce appeals, plus my federal appeal to try to regain attorney First Amendment speech rights. Here’s a general list of slapp suits, (and their progeny) in addition to the underlying divorce case: 1. Private Investigators. Chuck filed a lawsuit against three of my four private investigators for invasion of his privacy when they collected his abandoned bags of trash. 2. Theft of trash — Chuck & his gang threatened our longtime handyman with civil and criminal prosecution for allegedly stealing trash off the desks of attorneys when he emptied trash cans in Chuck’s office. This was a special needs man who worked faithfully for four years at our home and offices. Chuck also falsely accused him of being my lover. Poor Henry — I’m sorry for all the grief you suffered. 3. DV & criminal charges. Chuck pressed assault charges against my brother Greg, on the occasion of his attempted break-in of my home. He also filed for a reciprocal domestic restraining order against me, although I wasn’t even there. (Don’t worry about the gory details — it’s the filings we are counting.) He also filed to confiscate all my guns. 4. Discovery subpoenas untimely served against each of my staff at their homes very late Sunday evening(s) for next day appearances. All had to be quashed, argued, etc. 5. U.S. Mail — surreptitious collection and taking my mail, as part of his case at the Post Office — to have all mail delivered to my house re-routed over to his office. 6. Newspaper libel — A lawsuit filed against June Cooper, the owner/editor of a small weekly newspaper (a former D&D client) for her reporting on the D&D divorce along with a funny cross-word puzzle. 7. Client lawsuit for trustee taking case. Being joined, then dropped, in a lawsuit by Bertha Chapman (an elderly reclusive D&D trust account client that Chuck refused to give up to a new lawyer) over Chuck’s depletion of her family assets and funds he managed in trust. 8. Associate Press intervention in my divorce case to unseal the court file. 9. Intervention in my divorce. Four of my husband’s new associates and his girlfriend were granted intervention status in my divorce (so every hearing for me was an encounter with a hostile tribe of avaricious inexperienced attorneys.)

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10. Intervention in my client’s divorce. My husband filed to intervene in my client’s divorce trial (claiming funds Mrs. Heimann was entitled to receive in her divorce should be awarded to him for Douglas & Douglas legal fees.) My client testified that in three years, he never worked a minute on her case.)373

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11. PCC complaint. My client filed a conduct complaint against my husband Chuck over his attempted intervention in her divorce and his attempts to take her divorce proceeds. 12. Reversed PCC complaint. Six months later, Chuck called my client to negotiate a switch — if she would drop her conduct complaint against him, he will help her (via one of his ‘free’ lawyers) to re-file against me in order to get a full refund and avoid paying the balance of her outstanding bill to me. She accepted his offer and all terms. 13. Various PCC conduct complaints written by my husband, but filed against me in the names of his girlfriend, his ‘business valuation expert’, and other associates. 14. Arrest and incarceration by swat teams in the armed invasion of my home, including three felony charges against me, reduced to misdemeanors, then dropped or ‘lost.’ 15. Publisher lawsuit. Chuck filed a lawsuit against Lexis legal publisher to reprint and re-issue my books (joint authorship but my writing) without my name. 16. Miscellaneous lawsuit/collection disputes about an old office lease and construction improvements on the house. Chuck settled with the plaintiff to be released, leaving me to answer the complaints.

372 Although not signed, I recognize the language, particular phrases, writing style and the micro-management consistent with my husband’s battle plan — he coined and taught the concept, waging a ‘nuclear winter divorce.’ I suspect for him, it was just releasing his inner child. 373 There was an indirect order in out divorce case prohibiting interference in each other’s cases and each other’s fees and trust fund, but it was ignored by JNad/Coffey.

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17. Two other bar complaints arising from Chuck’s unauthorized removal of funds from my client trust and escrow accounts — payments he took for himself for my outstanding legal bills. The fees were all earned by me, but not taken. I received no funds for my work in either case or transaction. 18. Client Bar complaint — the switch from husband to me, along with allegations I stole client trust funds and client jewelry. (These charges were later disproven.) 19. State Bar CPA Audit. The complaint stimulated a Bar CPA audit of all my office accounts and files. It lasted daily for three months. The audit determined all the charges were unfounded, but the Bar initiated vague new charges in substitution.) 20. Chuck threatened to sue a local bookstore owner for receiving stolen property after a $3 book they bought from me surfaced that had his name on the flyleaf. He terrorized the staff and owner with threats of criminal prosecution and civil lawsuit, and they closed the business. He then sent form letters to all the bookstores for 50 miles searching for stolen property I might have sold them. 21. Psychiatric mental exam — Chuck alleged to Bar staff that I was mentally unfit to practice law. I was forced by the court to submit to a psychiatric mental exam by a Harvard forensic expert/specialist, and a year later, those charges disappeared — sort of. 22. An ex parte attachment of all my bank accounts (about $35,000) — not released for three years, then all but $3,000 in funds were mysteriously dissipated. 23. Half a dozen more bar complaints for not paying dues, penalty assessments and costs of bar investigations and prosecution(s) of me. Two went to trial. One was a secret-docket case. 24. Total Bar bill for my bar prosecution over $4 million dollars. To put into perspective, the government spent $13 million prosecuting Microsoft in an anti-trust charge. Microsoft spent much more than that defending itself. Defense always costs more.374 25. Professional threats. Each of my attorneys and my CPA were threatened with professional complaints in retaliation for working for me. 26. Federal First Amendment attorney-speech lawsuit to recover freedom of speech for lawyers to criticize courts and judges (not technically a slap suit case, but it added to my legal burdens that year, and timing-wise, I had to bring it or lose it.) All in all, it was a rough year or so. As I defended each case (and almost always won or the charges were dropped) I began also getting deadly threats, was stalked, and followed. Eventually, I entered a victim witness protection program outof-state and went into hiding. Slap suits experienced by others are not usually this extensive or personally vindictive, nor are they stimulated by a private party to be carried out (prosecuted) for them for free by the state bar association. Chuck just got lucky that I was a lawyer and therefore subject to whatever regulation, audits, reviews, investigations, and mental exams they decided to require me to do. It was a real grind, not to mention the expense.

SLAPP ACTIONS ONCE REMOVED Chuck’s attacks on two local businesswomen, who at arms-length he thought somehow favored me, even unknowingly, caused them to closed their doors because of his lawsuits and threats. One was a favorite bookseller, where I often shopped — BlueSky Books. I sold them a box of used books for a handful of dollars, and donated the rest to Goodwill around the corner. Chuck entered the store like a storm trooper, with his attorney side-kick, looking for ‘stolen contraband’ and threatening the saleswoman with immediate arrest. The owner wasn’t there, so he continued to harass the salesclerk with potential theft charges for receiving stolen merchandise. The employee quit, the owner was intimidated. Chuck also sent letters to bookstores for 50 miles charging I was selling stolen books.375 The other woman376 was a editor/publisher of a legal news watch weekly paper. She ran a cross-word puzzle about Chuck’s antics. He had insider-lawyer private financial information about the editor because our old law office had 374 See James V. Grimaldi, “Microsoft Trial — Probe has cost government $13.3 million,” Seattle Times, October 6, 1999 at 1A. 375 One book had his name on the flyleaf and was priced at $3. 376 June Cooper

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handled her mother’s estate, and so he used that confidential client-information to go after the publisher’s assets in a lawsuit. Ugly attorney stuff, where my friends, relatives, staff, and even sympathetic people in the community were (rightfully) afraid of becoming his targets. No one felt strong enough to stand up to this Insider bully, and other bar Insiders joined in with his campaigns. Insiders seemed to think all this was a great joke. These collateral incidents are not included in the list of slapp suits I enumerated. They are examples of how law enforcement, judges, other attorneys (especially those others who became the hostile take-over owners of my old law firm) — all became witting accomplices (as opposed to unwitting) in his state-wide campaign to ruin and crush those he perceived as nobodies. People he perceived were “low rank — signifying their weakness, vulnerability and the absence of power.”377 Why do insiders join in? Author Robert Fuller calls it “A Disorder Without A Name.”378 His estimates are that 20% have suffered from racism and 50% from sexism. I believe his estimates are very low. Where we agree is that almost everyone get treated at some time and suffers from being considered ‘a no-body’ in terms of a protected “rank” signifying power. Fuller considers it a symptom of each of the other kinds of discrimination — and it is everywhere. I see it daily at court, and if people decide to go to court just to ‘watch’ (to view how justice treats people) you will see a constant flow of indignities that permeate every aspect of the legal system, which have nothing to do with justice, or keeping order, or public safety. It is rampant rankism. I call it a scrum — as in attorney-bar rugby matches. The second reason is a cultural one about a closed lawyer society wanting to be ‘somebody”— with financial rewards for “wanting to be.” Leadership implies protection and the spoils of war. “Challenge it and you’re likely to be diss’ed as a loser, charged with lacking respect for authority …. Support it and you’re a team player, “one of the boys,” an organization man.”379

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Westerners are addicted to celebrities, fame and the exaggerated aura of being somebody. But fame or notoriety doesn’t move people into leadership —and that also seems to be a social goal. Leadership is alternatively desirable because it implies protection — a status beyond ordinary. That’s why I included all these examples of the communitythreats and slapp suits created by just one law firm with a handful of newbie lawyers who were promised new cars and a corporate credit card. They serve as one example of how a new Rambo-style law firm was used as a weapon to do scorched-earth. Where ordinary people in the community become collateral damage.

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Was this all in the pursuit of that elusive role of leadership? Or recognition? Chuck got court and bar protection that is routinely provided to Insiders because he had at one time been a judge — a top tier one. But he never got the institutional role of popular leader that he so craved — either from the legal system or the public. We see this automatic judge protection daily in law — how judges protect other judges — past and present. They are protected because protection and wealth are part of the power of law leadership. Judges make that mistake — thinking that the protection they are afforded in court allows them to do the same imperial acting out in the rest of society. Chuck was calling in chits and flexing a lot of judge-muscle during our divorce. He used Insider trading privileges to avoid any conduct charges himself, while orchestrating an avalanche of charges and cases for me, and other people supporting or in relational proximity to me. The effort was more than a dirty political campaign, but in the same style. Chuck honed his grassroots strategies, opposition research and dirty-tricks tactics from National Chairman Lee Atwater — the 1980s GOP bad boy,380 who gloried in making any political race into a mud-match. Chuck loved Lee and considered

377 Robert W. Fuller, Somebodies and Nobodies, Overcoming the Abuse of Rank, is a groundbreaking book on the discrimination based on rank. New Society Publishers, (2003). 378 Fuller, supra at 1. 379 Id at 73. 380 John Brady, Bad Boy, The Life and Politics of Lee Atwater (1997).

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him a personal role-model. One of the three times I saw him cry over the 15 years I knew Chuck, was when Lee died. One of Lee’s axioms was, there’s no bad publicity — I don’t care what they say about me, as long as they spell my name right.381 Judges are generally not celebrities — nor are they heroes, geniuses, famous people, or extraordinarily successful people. But each judge holds an accumulation of institutional power on a personal level over the rest of us. They are subject to very little, if any, accountability, so they stand alone in our society as a group protected from the very laws they enforce against us. The number of case examples cited in this book are but the tip of a very big iceberg of cases about abusive judges, because my goal was to provide true-case examples only. And because judges have established unprecedented institutional barriers and blockades to public access of the information necessary (to uncover the abuses and to hold judges accountable.) The same as in the study of the New York probate court appointments by Judge Judith Kaye, nothing happens. The one-time outcome was a deterrent in name only. No muscle. No enforcement. No repayment of gross instances of collusion and fee gouging for any of those probate-rape cases.

TWO OTHER AREAS OF POTENTIAL SLAPP ACTION — WIRETAPPING AND WITNESS TAMPERING Once a target is established, the bar and judges can be relentless in their determination to pin down and punish a heretic. In another case, the target was the attorney-daughter of a prominent State Senator involved in investigating state judges. There were other Insider connections. The bar investigators use one of the two vague areas of law that they seem to like to use to threaten non-insiders from snooping around the judge system too much. These two potential offensive-attack arenas are “wiretapping” and “witness tampering.” In my observation, neither actually occurred. There was no criminal act that met the criminal definition. There was no criminal charge. Only a bar charge. No one noticed. The point is to scare a critic before they become a whistleblower. My husband attempted both threats against me, plus he threw verbal allegations of adultery and ‘$3 book theft’ at me, but nothing stuck and he couldn’t get traction. Maybe for him it was just to drive away people around me. I had to learn to let go of those I loved and cared about, in order to keep them safe from him. Part of his vindictiveness was to hurt me by attacking and hurting those I cared about. But, make no mistake, the accusations, valid or not, are intimidating and cause stress, so I write to warn others. The “wiretapping” was a charge touched upon in the previous chapter. I suspect the state bar targeted Senator Sheila Roberge by retaliating against her child as payback. Her daughter is a licensed lawyer, and categorically she fell into the web of judicial intrigue and retaliation. One Supreme Court Insider involved in a real estate transaction lawsuit get his way in a real estate deal involving property held in trust for the Roberge family. But the slight of hand charging, and the use of the PCC to run up a million dollar defense bill, also seems to be a deliberate, thought-out political move instituted as payback. The underlying real estate case was assigned to Judge Conboy and one party — Attorney Bussiere — asked the judge to refer Carolyn Roberge, the real estate trust attorney, to the Professional Conduct Committee for attorney discipline for wiretapping. J. Conboy accommodated Bussiere. Bussiere made the unreported $50,000 loan to Thayer for gambling debts, and Conboy is the Thayer case judge who groveled at his divorce trial. The same names come up over and over, all with ties to the top state court. Meanwhile Senator Sheila Roberge was powerful in the State Senate and astute on the Judiciary Committee. Both she and Representative Paul Mirski (her counterpart in the House) suffered acute political retaliation by judges. Mirski was later re-districted out of office when the Supreme Court took jurisdiction over and decided a re-districting case targeting Mirski. He has since regained office. Retaliatory political actions are interconnected. Judges execute payback against political enemies. Judges are in office for life, have elephant memories, plenty of free resources and generous salaries, and thrive on political intrigue. They also have bar sycophants at beck and call. One national pundit claims, “You can always tell which businesspeople are on the outs with the political elite by who gets charged with some crime … and by omission, who’s in their good books.”382 381 It’s the same thinking American Intellectual Daniel Boorstin wrote about — “the celebrity is a person who is known for his well-known-ness.” 382 Ted Bauman newsletter. America’s Fast Track to Banana Republic Status, August 26, 2014.

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There was no turning Senator Roberge, and it was expedient for the Court to distract and punish her.383 Her daughter was a young attorney, and seemed to turn into a wisp after charges of wiretapping384 were brought to discipline her (read disbar her). The charges stemmed from two lawyers sitting in a room using a speakerphone to listen to the attorney on the other end (the powerful supreme court-insider and real estate attorney Emile Bussiere) who was involved in a real estate dispute involving a Roberge-family-trust commercial building. Bussiere in retaliation for what he thought was unfair treatment by the trust, instigated the attorney-disciplinary charges of ‘wiretapping’. Although the speaker-phone circumstances didn’t fit the criminal definition or the statutory purpose of the state wiretapping law, (there was no wire) why let those pesky little details stop a retaliatory bar investigation? So trace the law including its purpose/intent. It’s also important to check the forum when unravel a case like this — a bar complaint meant a peer-attorney prosecutor and a retired judge. Questionable credentials and patently unfair process. This was not a constitutional court — (remember the bar is a glorified trade-union.) Why a bar court and not criminal court, where the complaint surely would not have been prosecuted? Or a criminal charge dismissed? Insiders monkey around with the forum — because the purpose isn’t to deal with crime — but to harass political opponents. It’s a real screwed-up system. But there is no one external to sort it out with more authority than the judges who set up this internal discipline system (badly on purpose.) The secret undefined process that this non-constitutional quasi-court authority established to discipline lawyers. After the bar is through with its disciplinary process, the retired judge writes a recommendation that skewers the lawyer, and then the Supreme Court either accepts it or doles out a harsher penalty, assuming the target is a critic or whistleblower. If the target is an Insider, some convoluted illogical reason is given for dismissing everything as quietly and as early as possible. Ostensibly, it’s the difference between a Star Chambers385 prosecution and a Bill of Rights protected courtroom.

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The discipline of attorneys lacks due process and in Roberge, appears to have been used for political harassment and Insider retaliation. Outcomes can be mush-soft or overly harsh, depending on the target. The Bussiere/Conboy/Brennan threat against the Roberge family was the same as other ol’boy threats — (William Brennan and Chuck did the same slapp threats and complaints against me.) Euphemistically, it’s top judges calling out the dogs.386

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It was a brutal investigation I thought, that ended up in exposing even more threads of corruption in the state lower and supreme courts. The Roberge case handling twisted into the Thayer divorce investigation, when it surfaced that Judge Thayer interfered in the Roberge daughter case even though he was disqualified. He was recused from the Roberge case, but he not only sat through the secret deliberations, but wrote in the margins of draft opinions — his recommendations for much harsher penalties and suspension for Roberge’s daughter.387 All the while Thayer had failed to disclose on his mandatory reporting forms and financial disclosures (for years) that he had a $50,000 personal “loan” (or gift) from Emile Bussiere — the other party in the so-called Roberge “wiretapping” case. The list of judicial ethics violations for all five judges in this particular case conference, the ethics violations of Judge Thayer in his secret borrowing, his failure to disclose for years, the lying on his disclosure form, and a secret financial 383 I find it despicable of attorneys/the bar/and judges to go after and involve an opponent’s children in these retaliatory character assassination cases. 384 The state statute Chapter 570-A Wiretapping and Eavesdropping deals with “intercepted” telecommunications or oral communications by law enforcement. It was even outdated then but its purpose was to limit secret phone tapping by police. Not speaker phone broadcast when two attorneys were known to be together on one end of a phone call. 385 A special English court in the 15th Century that conducted trial with no formal charges, no rules, no witness, no evidence. It was a political tool for punishing and controlling dissidents. Similar to a presidential executive order to assassinate citizens. 386 Remember also that attorney conduct complaint proceedings are a collateral tactic — a diversion in an underlying civil case. Don’t mistake an appetizer for the main course. 387 This “disqualified but participated” action is part of a secret judicial practice discussed in the Chapter Appeals — the Case Conference.

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and mentor relationship with Bussiere (one of the parties in the appeal) and, not the least — the manipulated case conference rational for disbarment and discipline of two attorneys — all were not apparent in the Roberge discipline case. They were secret judge agenda issues. New Hampshire is a small state, and at the time had about 130 judges and less than 5,000 attorneys. But it’s amazing how the same names kept popping up in these intrigue-of-court episodes. This group of Thayer/Bussiere/Conboy/ Brennan were like the four musketeers. JNad was often “a connector” —who switched around judges for specially assigned cases. Judge Groff was assigned September 18th, and JNad ordered a switch to Conboy the 29th.388 Brock had the same chief-judge privileges, did the same switching-out judge-function at the top level of court. Both chief judges appointed J. Gray for ‘special handling cases’. Quiet little fingers stuck into a wide variety of fruit pies. The same overlapping players for the divorce, the Senator-pay-raise, and the Roberge discipline cases. The disassembly of the abuses of rank389 writes Fuller. He writes simply “that holders of high rank should serve and protect people, not tyrannized or domineer them” — talks about how rank-holders need to be ‘periodically accountable to those under their control.”

It is a historic Germanic view that people are the servants of the State. It is a historic French and American view that the state is the servants of the people.390 Under the German idea, the state cannot be held accountable under conventional moral law because the state is a supra-individual entity. It is an Arab-Muslim historic view that devalues females and seeks to overturn Judeo-Christian values. That’s why the ethnicity of the Arab background in our Congressional leaders, our Judges, and our Governors, and their connections to judging and law are important to understand. It is the hidden cultural agendas at work, even in tiny Concord, New Hampshire, the city ina coma, that are important to understand.

“Oppression is the muse of rebellion. Revolutions are made by people in pain.” (Fuller)

LAWYERS AND SUICIDE Most people, assuming they are not professionally licensed, would not be exposed to this kind of scrum harassment, which for me lasted well over a decade. Most of the attorneys I knew in New Hampshire who had bar complaints said they were ready to commit suicide after just one or two complaints. They generally walked away from law and found new careers. Several lawyers killed themselves. This was a new time of volunteer lawyer activism391 — where influential law firms donated attorneys to be prosecutors and investigator of their peers — against other lawyers who got targeted. It was like inquisitional trials. Sometimes the person targeted was clearly retaliatory because the charges themselves didn’t make logical and legal sense. The ‘punishment’ was for some other outside reason — probably not toeing the standard of loyalty demanded by this new oversight of lawyers. Two clients reported the dead lawyers had indeed royally screwed up their cases and their lives (the client’s lives). Some clients can pull another life together over time. Others cannot. This stuff is lethal for decent ordinary people caught in judge abuse cases. 388 Hillsborough North Superior Court, Docket 98-M-1145, order of special assignment of JNad, September 29, 1998. 389 Robert W. Fuller, Somebodies and Nobodies, Overcoming the Abuse of Rank, Ch. 2 Uses and Abuses of Rank, New Society Publishers (2003). 390 Kren & Rappoport, supra, 24 391 In New Hampshire, as in all other states, the ABA national unification movement of the 1980s assumed control of lawyer licensing and regulation by means of a highly questionable “election” of practicing lawyers. Lawyer regulation former had been under state legislative control, as is the licensing and registration of all other professions in New Hampshire. The Supreme Court judges promptly instituted mandatory bar membership, dues, and regulations. Since 1988, if a attorney wanted to practice law, they had to apply to the court for ‘permission’ on a three year experimental basis. At the end of three years, the Supreme Court just extended it’s control indefinitely.

As a private organization (actually a trade union), the Bar Association assumed the new ‘court role’ of attorney discipline. Bar associations became quasigovernmental regulators, and their oppression in my state became oppressive and frightening in scope and intensity. It made its own rules, and applied them with the same favoritism that swept through judge case handling in court. Not even a majority of practicing attorneys approved this unification move. So the natural constitutional limitations on the growth and expansion of judicial abuse (power) in courts became muted and finally extinguished.

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One prominent cardiologist in Colorado spent a year trying to expose Medicare fraud at the Catholic Health Initiative. He found his patient records were ‘unavailable’ to him, and his computers destroyed. He alleged government funds wire-fraud by a hospital monopoly. It was fatal for this sensitive Yale educated physician, who took on a whistleblowing function as an extension of his compassionate care for his patients.392 After his death, his spouse, Athena Roe, experienced another form of court corruption in the probate court and attorney handling of her husband’s estate where she describes the secret wealth exchanges inherent in a predatory court probate system. She leads a national movement, as a consumer advocate to expose the greed and corruption in probate court and real estate markets. Legally trained, she works for court and judicial reform by changes in laws to control a predatory economic catastrophe affecting the collapse of the American economy. Her on-line video is a must-see for anyone going through the probate court process or in a bank foreclosure shell game. A law-school grad, she’s figured out the court-legalized stealing process as a scheme that re-distributes wealth and assets from owners to those within the legal system. She explains it simply in an online u-tube, and calls for individuals to watch-dog the court system for its overreaching against people at the lowest times in their lives. She teaches how to hold judges accountable in what are “public-private” partnership models that are so popular in these inheritance theft-wealth transfers. The National Coalition for Family Justice in Tarrytown New York in 2000 had a sad tally of nine clients who committed suicide in family law cases — each corrupted cases in divorce courts. The results, although anecdotal, are catastrophic. At a national level, I’ve been privileged to meet dozens lawyers who have blown the whistle on judge corruption across the country. And I find the same percentage outcome with them: death or suicide, or get a new life,393 and another category of those who stand and fight. For example, the National Whistleblowers Summit in Washington, D.C. is an outgrowth of this kind of attorney grit. The Judicial Disability Project, in Chicago is another.

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Slap suit litigation is also frivolous litigation leveled in class action cases, by wealthy corporations against poor defendants. The point of a slap suit not only The Double B, Triple C Play, but also to discredit and out-resource an opponent. Marginalizing a player as a form of not only humiliation, but establishing some finding at law to be able to discredit the whistleblower (as a liar.) All of those tactics are to remove the complaining party from interrupting the insider game as it occurs in court. All these tactics work to impoverish and neuter critics and adversaries, further keeping them from effectively exposing and stopping the judicial abuse. This is a big national system, and each tiny cog has to be controlled and minimized. Athena recommends filing a well-documented grievance for each player and event, and although it doesn’t get your assets returned, sometimes filing helps stop the pillage, and sometimes allows a litigant to extricate from the litigation cycle where clients lose control over litigation, and their assets.

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I saw this tactic used in the SEC stock scandal, which was largely un-prosecuted and unpunished — with the exception of Martha Stewart — who was found to be innocent of all underlying charges, but then convicted of lying to investigators. I sympathize greatly, although have no special knowledge and only a hunch as to the reliability of the alleged ‘facts’ in her case. Someone needed to serve as an example of prosecutor right/might. She was not especially well liked — (except for the millions of fans who did and still adore her) and a bright aggressive self-made woman millionaire was a perfect example for prosecutors to show they were protecting the American public. Expense of defense. What is critical in every defense is money for an adequate defense. While the State and Bar Association used ‘volunteer’ prosecutors, staff accountants, and used each other as so-called experts and advisors and auditors, and while they didn’t have to pay out-of-pocket for their own salaries or an office and staff — as a defendant in each of these actions, I had to foot my own bill for everything (both in house and out, including my defense attorneys, and experts.) As the target of a plug-the-springs divorce tactic (not to mention the armed home invasion that left me without a home and office) I found that several of my staff refused to leave even when I could no longer pay their salaries. They continued 392 See website, HARjustice.org, and u-tube of Athena Roe The Economic Rape of America Exposing America’s Secret Wealth Transfers. 393 Getting a new life often depends on family. Children appear not always to understand the ‘duty’ of whistle blowing, and it greatly affects children’s lives in negative ways and years of impact. But so does divorce overall. Spouses of whistleblowers sometimes are supportive and their second income helps avoid the loss of professional income. Or else it ends the marriage.

Going into a protection program cuts off many things that were socially important, but I found my values changed dramatically, and much of what was previously so important, no longer mattered at all.

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to provide every kind of backup service without pay for several years — even after I left the state. They prepared for the bar audits (which lasted months), countless hearings, accompanied me to every hearing and every day of ever trial, and even to the psychiatric evaluation (twice) in Cambridge. Jennifer and Karen managed my mail, accounts, correspondence and even media to help close out my practice and refocus on legislative education for court reform. There are good kind people with high morals everywhere. Karen Testerman testified calmly, brilliantly for two days of the last conduct trial, and suffered through the prosecutor’s attacks on her religion and Christian beliefs. The bar prosecutor shifted the focus of her cross-examination to try Karen’s Christian moral values in a futile attempt to prove Karen was lying. None of us were lying. What we were saying just wasn’t heard. Although the judge suffered his own hearing disability during trial,394 he allowed this collateral attack on Karen’s religion. The client who, assisted by my husband and one of the attorneys in his re-organized office, had allowed her bar complaint to be re-filed against me. I don’t know if she even read it, and she refused to return from Florida and refused appear to testify against me at trial. The Harvard psychiatrist who took my mental exam was called as an expert witness, but his glowing written pre-trial report about my mental condition was only slightly distorted by his trial testimony. Most of my written documentary evidence and my rebuttal witness testimony was excluded or ignored. I doubt that the cross-exam of my witness actually counted as impeachment for being a Christian. I thought the Judge’s bar prosecutor was grasping, but the truth didn’t seem important to anyone else in the courtroom. It was a play — a drama that I couldn’t win. The case against me was not only thin, but unique in American history of disciplining lawyers. There was no rule anywhere in any state barring what I had done, and no case precedent. So the prosecutor twisted a non-specific general axiom in the printed rules of attorney conduct — into a crime. Without notice, the case against me shifted — from theft of money, property and jewelry — to ‘failure to protect a client’s interest.’395 The prosecutor and later the judge glossed and manipulated over that there was no dispute that I was owed all the money and much more, and that there was no dispute as to the accounting provided and accepted by the client three weeks before I removed $49,000 in cash from my own lawyer trust account. Clearly it was undisputedly was owed to me by the client for services accounted for and overdue.396 Later, the volunteer prosecutor, Margaret Nelson, an attorney at a local law firm, added a charge of ‘lying to investigators’ and she and the judge both avoided the exculpatory evidence rebutting that charge (through billing documents and witness testimony.) Did I do anything wrong? Sure, but it was nothing immoral or unethical, and amounted to several staff billing/office closing mistakes, including a staff form letter sent to all my clients about the Chuck’s permanent freeze of all my bank accounts.

PREMONITIONS, HUNCHES, AND INTUITION Much was made of my ‘premonition’ to take $49,000 cash out of the bank just hours before my husband executed his move to take my bank funds. Still in place were standing orders in our divorce that he could not to contact or interact with my clients. His violations always were ignored by the judge. Once everyone recognized the privileged insider status in play, (being a judge is was gold-chip pass) we all recognized Chuck was receiving a free ride. Maybe he knew it even before that. I don’t know. His team was denied nothing by the court. And nothing taken by stealth or ambush or distortion or lying ever was returned to me. 394 See § on deaf and hard of hearing judges in this chapter. 395 What interest? A client’s interest in avoiding a valid and overdue bill at the end of her case? The State avoided articulating what interest specifically, but because they still alleged (but didn’t prosecute at trial) the theft charges, so the accusations remained a muddle. I’ve read about Anne Hutchinson and the Salem witch trials — same kind of illusory ‘crimes’ that leaves a defendant shadowboxing against an amorphous allegation. 396 My mistake was in not sending the client a final bill, showing how much she still owed (about $28,000 more). When my payroll account was frozen, that was a nail in my financial coffin, and I let staff go, struggling to pay them. Operating the billing software was beyond those who refused to leave — and volunteered. Several former employees stayed on full-time or more for another two years without pay. One wrote a form letter and I returned all my existing clients advance funds and found new lawyers to represent them. Marjorie Heimann didn’t have excess funds, and I didn’t charge her the rest of her outstanding bill. We provided an extensive accounting in August, when she stayed three days at my home, and she received a detailed explanation of every charge and she accepted the accounting; there were three small changes, and each time I had shortchanged the firm. I returned her jewelry that had been her collateral. Her bill was outstanding — some charges were over a year old. The incoming escrowed funds were a glint in Chuck’s eye ever since he intervened at the Heimann final divorce trial earlier that year in June. He didn’t get her money then, because the marital master denied his motion to intervene. But Judge Coffey was his ace in the hole and denied him nothing. During our divorce, the two judges granted over 400 motions — everything he asked for and then some. So it was a strong hunch that he would try to take the Heimann -payment from me, one way or another, even though doing so would violate standing orders not to interfere with my clients. My overwhelming premonition was that Chuck was going to make a move, so I went to the bank and took out most of my earned fees in cash.

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A misconception might arise in readers that all this happened because my husband was popular or well-liked by the other four judges involved in the manipulations of our case. I don’t think that is the case. Judicial favors were liberally bestowed because of his Insider status in the Court system. I also suspect he was more feared than liked. And Judge Coffey made it clear she liked neither of us — (me more so than my spouse). Yet she was so tangibly biased. Court favoritism goes to the office and relative position of the Insider, not by affection. ‘Course in the Thayer and the Rubin cases, I think personal affection was involved between judge and an attorney — or judge and the other judge — because I saw the Judge’s affect change noticeably at hearing. They signaled with their body language. Returning to the premonition. Six hours before Chuck froze my bank accounts, (the first day of my divorce trial) I was walking down the street to my office, planning to pick up some papers and drive over to Rockingham. Because I was the defendant, and the first day of trial would be filled with Chuck’s presentation of his case, (including a hearing on Tony Tarbell withdrawing as Chuck’s attorney on the eve of trial) there was no chance the judge would get to my case presentation part of the trial. Without permission from the court, Chuck fired his lawyer the day before. It is mandatory for any attorney wanting to withdraw after trial is set, to get the judge’s advance permission. This is standard policy/rule to avoid leaving a party without an attorney at trial. There had been no notice for a hearing on Tony Tarbell’s withdrawal, and in fact no written notice of the trial. It had been set six months earlier by JNad, when he said he would terminate my support if the trial date was continued for any reason.397 So, I expected Chuck’s first day (of what would probably be many days of presenting his case) would be a zoo, and the judge would deal with Tony wanting to be released at the last minute. Maybe Chuck fired him? Maybe he quit. My brother was in court representing me, and he had filed his appearance six weeks earlier at a hearing. He had been challenged by Chuck in august, as a non-lawyer, but Greg submitted to examination about his good character and the judge accepted him as my counsel. I trust Greg. He’s smarter and cooler than I am, and I appreciated the little cover Greg provided me from my husbands vicious personal attacks. Chuck twists words, in a clever and hurtful way. He does that confabulation finger of truth-trick, and I didn’t want the stress of him. I was glad I didn’t need to appear as it was emotionally stressful being the client, not the lawyer.

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The Court had not even mailed a notice of trial, much less issued a subpoena. We were appearing this date based on an oral setting of the prior judge (JNad) who picked this date out of thin air last April, when he made the order that if the trial were postponed for any reason, my so-called right to temporary support terminated automatically. So my attorney-my brother Greg and Karen Testerman from my office headed out that morning for trial, and I headed into the office.

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A voice inside my head was insistent, Go get the money. Get only cash. Go now.

It was talking about my client fees for the trial completed three months earlier. I veered across the street and entered the bank, filled out the withdrawal form for $49,000. I requested only cash, which upset the teller and everyone else she talked to, because the bank wanted me to take a bank or cashier’s check. Even a cashier’s check can be stopped for payment. I waited more than two hours for them to assemble the withdrawal. On the way out of the bank, I phoned the client and told her I had taken the money in cash out of trust because I had a premonition it was going to disappear. Then she would still owe me her bill, but I would have to fight Chuck to get it back, (and we both knew that would never happen with this judge.) She said ‘great’ and ‘I love you.’ (Note: We had been through a lot of personal stress in her divorce, and several times I had her stay at my house when she was without a place to stay.)

397 A bizarre and unusual ruling discretionary provision — to tie these two elements together. A right to support tied to an arbitrary and capricious trial date. In any rate, the trial date was rushed under conventional case handling — about 8 months after the petition was filed. Very short time — especially for such a contentious and stonewalled discovery process. All of this is extra-ordinary handling — way beyond any court rules or legislative processes established for divorce cases.

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Big mistakes on my part were — (1) not taking all the money out of all my bank accounts; and (2) letting a law client get personally close when I was her attorney — even when I really liked my clients (as I often did) and even when I worried about them personally as well as professionally.398 About four hours later, unknown to anyone on my trial team, my husband went back to court for a second afterhours ex parte hearing with Judge Coffey (whoa few hours earlier had manufactured my so-called trial default.) Coffey scribbled a sentence on Chuck’s handwritten ex-parte motion, authorizing a bank attachment ‘for the funds of Marjorie Heimann.’ Had this order been executed a few hours before — it would have meant that I would not have been paid my fees and they would have passed to Chuck. I deferred taking these fees because of the last minute discovery and intense trial preparation in my own final divorce trial. The client’s bill was overdue and she owed me about $77,000. We had been waiting for divorce-payment funds to arrive. In August, my billing staff had provided this client a full accounting and back-up documentation, and there was no unresolved dispute about any expenditure or accounting. I returned the jewelry the client has given on her first visit three years before (as security/collateral for her bill.) At her direction, I had sold several pieces of her jewelry (after independent expert appraisal), which she was provided and pre-approved before any sale. There was no ‘stealing’ client funds, or manipulation of jewelry, or unauthorized taking, or excessive fees and billing, as assorted enemies later trumpeted. But even being meticulous in my work and the client’s accounting didn’t matter when court bar enemies need to make charges to attack your reputation and profession. One rational flaw with Judge Coffey’s attachment order was she used vague and unenforceable language. Money is fungible, and the judge wrote to take only certain client funds — sloppy language — because a Bank had no way of knowing which account or which dollars contained funds from any specific client. Besides, the bulk of the funds attributable to Mrs. Heimann had been removed by me three hours before and the judge knew that because someone from Chuck’s office had been in the bank and overheard me and called the court. I don’t know why I didn’t just remove all my money. We don’t usually think about emptying bank accounts, but that’s probably what I should have done. So upon being handed this vague handwritten scrawl the bank froze all my accounts. That would be my business operating account, my payroll account, and my client trust. There was about $35,000 left, which I never was able to unfreeze or access. Three years later, a bank clerk I had come to know, quietly handed me back about $3,000 and said ’you are lucky to get even this…and by the way, if anyone asks, I don’t know you.” No accounting. Nothing else. Ever. The ex parte order of Judge Coffey put me out of the practice of law in a secret instant. Hours before she had awarded Chuck every asset from our marriage by manipulating my default. But my separate law office fees, after our separation, were not included in her default order. All the unusual videotaping of my trial strongly suggested JNad was in the closet, pulling strings behind the curtain. The freeze on my bank accounts later in the day was the final nail in my law-office coffin. When we talked about it afterwards, my brother thought it was inevitable and the absolute taking of everything that was mine was going to happen one way or anther. This way, he said, your transcript for appeal will cost less. This kind of nuclear winter result comes just like dropping a bomb. It has elements of rape, and fraud, and financial scamming, but all under the umbrella of judge power. I have since met others who suffered the same kind of judicial manipulation. Like any other sudden catastrophe, overnight, it changes all aspects of your life as you know it, and like any other catastrophe, will leave you especially vulnerable emotionally and physically. I’m lucky to have had my brother and his wife helping. A short time later, the NH Gadfly also showed up on my doorstep.

398 Family law is like that — it gets mucky and sometimes sentimental because as a lawyer, you provide not only legal but emotional and life advice at an emotionally challenging time. I gave every divorce client a book entitled “Crazy Time” by Abagail Trafford. I bought them by the case. If one of my clients got stuck in some emotional stage of divorce for more than six months, I’d insist they go to therapy.

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Sometimes I wonder if I could just be an anomaly? I have tested my theories about SJT’s all over the country and found some elements of judge abuse practice are universally present in almost every case I observe. I’m aware that people report cases to me because they are corrupted, so I get a sampling that may not be representative of all cases. I have become the cancer specialist of courts. I don’t get the healthy cases, only the horribly corrupted ones. I’ve tried to recognize good judges when I find them — but they are few, far from a majority, and the legal system has grown in a direction since the 1980s that forces good people out or prevents them from entering the profession in the first place. I don’t think the stories in this book are anomalies — nor are Americans increasingly criminal or amoral. We haven’t changed. Our leaders have. They have gotten greedy and authoritative, and the trusting American public has become ignorant lucrative targets in an enormous institutional scam. New Mexico Congressman Steve Pearce said recently that the tone in Washington is different now from 10 years ago — that regardless of political party affiliation — what Congress responds to and passes legislation about is a result of a growing anger that people of all parties are giving voice to. He said, as Americans politics aren’t what divides us. That I believe is so with this court cronyism. It’s an epidemic. Favoritism isn’t passed out by a political party, as much as it is extorted by groups of court players.

THINGS THAT ARE BROKEN IN OUR SYSTEM BECAUSE OF THE ARROGANCE OF LEADERS. Every since I put up those banners across my house saying two-tiered justice, I’ve been trying to deliver the message that we have a bifurcated legal system; bifurcated liberties; and the way to fix it is to take back our court system is in the legislature with oversight, and if necessary, one case, and one judge at a time. Before you make up your own mind, study this book — hopefully in a study group. Take a field trip to court and watch local judges in all your local courts. Talk to people who have used courts.

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ANOTHER ATTORNEY WROTE OF HIS AVALANCHE COURT EXPERIENCE.

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He still practices law and was kinder in his narration of the sneaky judge trick in a civil rights trial. Morris Dees described a similar experience in the Tarboro Three trial of three black men accused of raping a white woman: “[The prosecutor] objected to every question I asked [the alleged victim], and the judge sustained every objection. The judge then ruled against us on almost every motion: the use of tranquilizers was irrelevant to the court by [the victim’s] pharmacist, he said, refusing to give us the multi-page listing brought to court by the pharmacist; our psychologist could not examine her; established case law to the contrary, we did not have a right to examine the witness statements the prosecutor might have.” That’s my experience also. Judge bias in rulings can suppress or discredit all your evidence. Judges also allow prosecutors also hide critical witnesses to keep them from testifying for the defense. They suborn perjury of snitch witnesses. They use police officers known to lie. In a bar conduct case,399 a legal forum I have challenged as unconstitutional — if I prove my innocence on one count, then the prosecution is allowed to shift the ‘charges’ to another vague set of allegations, (picked out of a 18-page narrative/litany of presumed facts and non-specific alleged misconduct.) If that doesn’t work, and I don’t go away, bar prosecutors fall back to the “crazy” charge. They work to marginalize, retaliate and punish, and they don’t ever miss a paycheck or a nights sleep. 399 Which is a constitutionally illegal ‘court’ lacking in neutrality, fairness and due process. For example, the same untrained ‘investigator’ is also the prosecutor, and then becomes the judge. Only on “appeal” in this fairy-land of tribunals, might one get a ‘retired’, but it is by a specially-appointed retired insider to hold a trial on those nebulous, non-criminal allegations. But no one in the press or the public has figured out the illegitimacies and un-reliability of this forum and process. The public just gets the final outcome that sounds, well, legitimate. The appeals chapter delves into the various judge honor/ethics codes at play in this system. There is more than one. One is public, the other highly Insider secret.

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I believe the slapp cases tried by the Bar volunteer prosecutors400 largely represent retaliation for heresy — for my whistle blowing about cronyism and bias by particular judges, JNad, Coffey, and Brock being three.401 There were others. Did my former client want to avoid her outstanding $77,000 bill for divorce, estate and other services legal services? Yes. Sometimes client get greedy, especially after I won their cases. There is even an appreciation bell-curve chart402 demonstrating how fast clients lose their gratitude —from I love you and you are the world’s best lawyer at end of trial, to three months later saying I won big, and what did I need you for? I don’t apologize for getting paid for my years of hard work on her case, and yes, I did get her a great outcome in a long and difficult divorce. But the client was improperly stimulated and motivated to flip her conduct charges from Chuck to me. After our divorce, Chuck approached her, offered her a free attorney in his office, and told her this maneuver would be a cash windfall to her (it was not). She became a pawn in an already abusive game of slapp divorce. Teflon Chuck. I marvel still at his inside-player-skills in avoiding discipline or disbarment by deflecting blame elsewhere. The gold-card of judge favors. For several years before, I had co-hosted a political talk show that was broadcast weekly state wide, and occasionally appeared as a guest TV commentator in New Hampshire and Boston television. So my voice on air and in print was (nominally) noticeable. Legislator-attorneys privately agreed with my commentary about state judges but each was afraid of bar retaliation. Some attorneys encouraged me — but very privately, with the request I not disclose their support. Almost every attorney I approached to represent me said they were afraid to represent me in any case.403 Even the two who eventually helped were always afraid to stand up and speak out, afraid to challenge authority, afraid to assert fundamental claims and defenses; both claimed they were threatened and suffered professionally for years for representing me. Lawyers were afraid of Chuck for a reason. Because I slept with one of those judges for years, I wasn’t as impressed with judge power as other lawyers were. Eventually, at the first gathering of other ex-wives of judges, the other wives expressed similar sentiments. These truly are not extra-ordinary men — merely ambitious, manipulative white men with foibles and insecurities that constantly need shoring up by peers or the women they sleep with. But once they start wearing black robes, they noticeably change as human beings. Carolyn Sullivan complained that she and her judge husband used to buy marijuana from Brian, the Rockingham clerk of court, who grew it in a field behind the courthouse. After she married, she reflected sadly on the change in her husband’s change in demeanor. She put it succinctly, “Judges wives don’t wear jeans.” Carolyn claimed her husband hated to take off his robes, even at home. Some ex wives told about swinging sex and bodacious affairs, and pregnancies with multiple law secretaries. It was accepted practice at the State Supreme Court to let Judges provide jobs and office space for their extra-curricular girlfriends. Several of us knew first-hand about how appeal judges decide some cases based on personal dislike on one of the parties, and how they work the decision backwards. “We just didn’t like the bastard,” Chuck would explain at cocktail parties and intimate attorney ski vacations. Everyone in the room got the message. Other wives began to angrily speak out in public. One was murdered by her attorney-husband (the husband was a client in Chuck’s re-formed office.) Chuck hired a private eye to apply for work at my law office. I was followed and stalked

400 Some attorneys volunteer to prosecute bar complaints against other lawyers. That way, they can protect their own law firms from PCC complaints, and draw a salary from their own firm, while doing the bar’s business. The trick in attorney conduct complaints is the bar/courts charge defendants, for the costs of prosecution, even though those attorneys are on salary at their own firms. So these cases are tried in private courts, with private prosecutors, ‘specially appointed retired judges, on weekends and other times, and I got to pay for this ‘privilege’ of being prosecuted by my peers who may have an ax to grind, or a ladder to climb, or dues to pay for a bar promotion or later internal appointment. Yes, I admit to being cynical. But see the § on private retired judges. 401 This issue is still unexamined, as are whole body of so-called ‘rules’ used to discipline and silence attorneys. The rules are ‘orphans’ in American law and there is no accessible forum to examine them. 402 I love this bell chart that shows how impressed and grateful clients are from the first meeting through your final triumph win at the end of trial. Great chart from my first how-to-be-a-lawyer book — “How to Start & Build a Law Practice” by Jay G. Foonberg, ABA 2nd edition. 403 Dennis Bishop, the federal IRS special audit/CPA/expert said he was retaliated for years for his expert assistance to me in divorce. Judge Coffey consistently precluded his expert testimony and evidence by manipulating orders to avoid making a trial record of his analysis of under-reported taxable income. As it turns out, former Members of Congress are protected from most tax audits — Congressmen are only allowed to be IRS audited by a special Washington D.C. IRS audit team. That’s some work-perk.

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and threatened. Everyone else relayed little facts about how they were cheated and crushed in court. Most were made impoverished. But for a while, there was hope. Certain state legislators also caught hope. Representative Paul Mirski and Senator Sheila Roberge, each took leadership roles in the House and Senate to investigate and impeach judges. Afterwards, they were retaliated against — political payback from the judges. Critics get picked off one at a time. Representative Phyllis Woods and several others caught on to what about 70 disgruntled litigants had been publicly complaining (some for years.) Then it grew to about 300 state cases where people calculated how they were cheated in court. Then a landslide of voices began to question judges and look more closely at how the Supreme Court handled insider cases and how the judges had been dealing with their own corruption. Berlin Mayor Dick Bosa told JNad to never again to drive his Rolls Royce to the tiny economically strapped town of Berlin (where jobs and the economy died when the paper mill closed, and the resulting poverty was brutal.) Bosa filed a lawsuit over improprieties in the so-called 1984 Constitutional “amendment” manipulated by judges to give court rules “the force and effect of law.”404 One guess how independently the court handled that case? But the public was beginning to notice what individuals had been saying for a decade — judges are self-dealing and corrupted. But it was hard to trace, to explain simply, to disclose. It still is. There is no help for identifying it. Then in 1999, one of the sitting Supreme Court Judges, Stephen Thayer, launched his own secretly well-planned divorce action, including pulling puppet strings behind the scenes at court to get special judges assigned to hear his case. The Gadfly had already arrived on the state scene, and Theo worked incessantly to educate newspaper reporters and publishers with the legal knowledge and the understanding they lacked, so they could personally understand how legal dirty tricks work to cover up judge abuse. He offered help to some of the ex-wives and others. His services were generally free, although he was always strapped for money and the basics of life. We wives were largely without any lawyers — either having been dumped early in the case or unable to pay or hire anyone. Not that anyone wanted to take a divorce case against a powerful legal insider.405 Since we all had no money for lawyers, The Gadfly was a blessing. And he was smart — brilliant even, with the best legal research engine I have ever come across. The New Hampshire volcano finally erupted in 1999 because of the Thayer divorce trial. Judith Thayer lost spectacularly —she and her children were forcibly removed in a rainstorm, from their home by armed law enforcement. It was prominently printed in color on the front page shortly before trial. At trial Mrs. Thayer lost badly under Judge

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404 Putting judge court rules on equal footing with legislative statutes. That’s how they were able to fashion a special star-chamber court to discipline attorneys, and ‘enact’ the flexible bar conduct rules that have no teeth. 405 I once had a heated argument with my husband about my accepting a divorce case for the young trophy wife of an original founding partner of the state’s largest firm. Chuck forbid me to accept the case, and I, having been told by Mrs. Trophy Wife that 17 attorneys had refused her, took it anyway. 17 rejections should have been a clue, but I felt sorry for her. The case was a real lopsided battle, and wife won, but I lost overall when she objected to paying her bill. I let Chuck handle her complaint and subsequent lawsuit, as he took the payment funds secretly from trust almost as soon as they were deposited. I didn’t know and didn’t count that as one of the slapp suits because by then, I was embroiled in my own messy divorce and was out of the original law firm I founded.

Some clients want to win, and expect a lawyer to fight every battle, but sure hate to pay for it. I used to present the final bill as a % of the amount won — for example, “you paid 2 or 3 or 5% to win $3 million,” but most clients don’t want to see it that way. Attorneys are prohibited from taking divorces on contingency, so the Bar forces attorneys to bill on an hourly basis. The cost of fighting the husband of Sleeping Beauty meant that he has a free law top notch law firm and multiple free lawyers, while I was always outnumbered at every hearing and was stonewalled about the millions the partners distributed to each other as bonuses at the end of every year. The Ol’Boy Insider firms are as gender-biased as any KKK club is racist. They are routinely insulting and gender disparaging. Interesting the same pre-meditated advance planning by the husband, and the same abusive expert insider tricks were in play, that were routinely used in other ex-wives of judges cases.

This trophy wife was not an Ex-Wife of Judge member, and wanted to know nothing about her divorce proceedings — making specific instructions (orders actually) to send her no documents, don’t call her with updates. She was a kind of a Sleeping Beauty — just wake me when it’s over. [This makes for a bad client all around — Chuck was right but for the wrong reasons ] He knew (and I didn’t) that Ol’Boys have an unwritten rule that they don’t represent each other’s wives in divorce. That’s why he was angry enough to argue with me about it.

Sleeping Beauty’s husband had a stroke before trial. His partners blamed me for this dehabilitating medical condition — yet it was the husband and his lawyers that were playing the nuclear divorce shots. It didn’t take long for these same partners to forced husband out of the firm he founded, just before final trial. I was stunned at how callous and cheap his law firm was in paying up for him to leave. [Permanently paralyzed? You’re out. Too bad he had just filed for divorce from the one person who could have taken care of him for free. Instead, this racist man got a series of Jamaican Negros and other African-Americans living in his home, caring for his personal needs.] I got his wife and children a percentage of that disability buy-out, since hubby would no longer get a multi-million-dollar founding-partnership-share of the profit-distribution each year. When you’re in, you’re rich and powerful; and when you’re out — you’re in the cold. These guys are all business.

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Conboy rulings. By then I had even more judicial misconduct insider information that was suppressed at trial. Judge Thayer was supposed to ‘look clean’ in his divorce case by keeping out relevant but damaging evidence. The presiding judge assumed Judge Thayer would continue to sit on the state’s highest court, and his reputation was protected at the cost of the wife’s property award. But it was the trial judge’s personalized and vindictive disrespect toward Mrs. Thayer that was the instant tipoff that this case was also a set-up. This was a highly educated, classy wife, who we had socialized with — including a Washington presidential candidate private dinner. The candidate was a nationally prominent politician — in New Hampshire to test the Presidential waters. As a power couple, the Thayers were each witty, intelligent, and socially conscious in their own fields. The disrespectful in-court treatment was offensive, not to mention biased and illegal. At the start of the appeal, one Supreme Court clerk406 filed an AG complaint about Chief Brock’s special handling of Thayer, and after that, events moved quickly. The pump had been primed with my media-driven divorce, and when Thayer was charged with criminal conduct, the House caught fire for an investigation into the courts’ special treatment practices by state judges. The House Representatives voted almost unanimously to conduct an impeachment investigation of the court and its top judges for conspiring secretly to manipulate the rules and to appoint special judges to sit on the Thayer appeal case. Providing Stephen Thayer with extraordinary handling on appeal meant his case would not be overturned on appeal. Avoided completely, however, was an investigation of the judge switching that occurred in the Thayer case at the lower level. This was a very myopic investigation from its birth.

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406 A small highly political act that I call a miracle that changed the legal landscape. More about Howard Zibel in other sections.

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104 THE ATTORNEY SMACK DOWN

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In my case, I believe the goal was to discredit and marginalize me because I already had a defining public presence. The purpose is to marginalize a player. Another purpose besides punishment and humiliation is to establish a legal finding that will permanently discredit a whistleblower as a liar for any future statements made about judge corruption. It removed my livelihood — and bar-ticket to practice law. Most will not risk this. I recognized this tactic used by prosecutors in the SEC stock scandal, which was largely un-prosecuted and unpunished at the top tiers of management — with the exception of celebrity Martha Stewart — who was found to be innocent of all underlying charges, but then convicted of lying to investigators. I sympathize greatly, although have no special knowledge and only a hunch as to the reliability of the alleged ‘facts’ used against her in her case. Someone needed to serve as an example of prosecutor right/might. She was not especially well liked — (except for the millions of fans who did and still adore her.) As a bright aggressive self-made woman millionaire, she was a perfect target for prosecutors to show they were protecting the American public. It appears prosecutors spun a cheap shot to claim they sent a message to the whole industry — by targeting one person with an international brand they could feed on and enhance their socalled “win.” I suspect Martha was targeted because prosecutors could work less and claim more — she was already a household name. They wanted a national drama about ‘the appearance of justice’ — the same thing Judge Gray said to me. Meanwhile was the industry thoroughly investigated? Cleaned-up? Punished? Reformed? Martha Stewart appears to have been targeted as a convenient and easy diversion from rooting out the source of the real problem —

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I was eventually charged in a long rambling multipage narrative and three overbroad vague code infractions. None of the charges related to anything specific in the state criminal code. It sounded like some kind of unarticulated theft charge — but there wasn’t any theft.407 The client had a three-day accounting session with my billing lady six weeks after her divorce trial. The client had 3 questions about her account, which were all resolved. She had been undercharged. The bar audit reported the same thing — a few nominal accounting errors, each benefiting the client. After the client approved, I returned her security — a box of jewelry she brought in on her first office visit, three years earlier, that she offered as collateral to make sure I would be paid if I took her case. Everything was accounted for, even what she had instructed me to sell. All of that was fully documented, appraised, and she approved each separate transaction in advance. Bar prosecutors skipped all of that in their charging. She still owed me $77,000 for unpaid work for two weeks leading up to and including her trial.

6

This client did extremely well in the divorce, taking about 65% of the total value of the marital assets, representing millions of dollars in real estate. So paying my overdue fee a month later wasn’t theft, but I was first accused of theft. Years later the new charges were manipulated to suggest, without saying, that I was somehow immoral — in support of the side charge that along the way, I had lied to the bar volunteer investigator/prosecutor. In high profile insider cases,408 it becomes important to convict a defendant on something because prosecutors need to save face. Even if the target is innocent. Actual Innocence is irrelevant. The bill for prosecuting me through a dozen cases, with volunteer bar prosecutors (who later billed me for their services) ran millions of dollars. To do all that and not to win would be too obvious as what it was — professional retaliation for not being a good loyal bar member. I have a bias,

407 I was owed $77,000 in fees for years of work; the client’s divorce was very financially successful to her (her marital-share award after trial was three months earlier.) I took $49,000 from funds deposited into my trust account under a client agreement and my standard attorney practice. I also phoned my client when I took the payment. 408 This is not to suggest that my case was a high profile case — but it was closely related to my public charges and testimony that New Hampshire judges practiced crony insider preference regularly, causing unfair biased trial results. Those charges were internationally reported. This coincided and blended with the impeachment investigation of the state Supreme Court. For the New Hampshire Bar and Supreme Court, it was certainly a crisis in confidence in the courts, not overcome by the Senate trial in 2000.

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§104 The Attorney Smack Down

and it affects my writing, and I make little apology for it. It helps me understand better what others go through in court to have had these experiences. I hope my experiences help others. Play it forward. Legal leaders use an inauthentic form of leadership409 (much like experienced and powerful politicians sometimes do) and if there is high profile criticism of the court institution, judge will put out a quiet call to membership to overwhelm and destroy a disloyal member. Others within the organization pile on even if they were not previously directly involved. It may be pay-back or a matter of group loyalty and trading on past favors and future implied promises. That’s all part of the slapp process. The purpose of discrediting an attorney is to render their criticism of judges moot. Whose going to believe someone found guilty by a court of lying? That’s why that secondary charge is so critical. Judges also set up a rule that any attorney accused of malfeasance will have to pay all the costs of prosecution. That’s why, after two dozen charges, bar prosecutors and judges had to win something — anything — to justify their expenditure of bar resources. Not every attorney will condone or participate in savaging another attorney or the opposing party just to win the case or to demonstrate their loyalty to the bar and court. Those who do are of a nature to bear grudges. In dealing with this type of ol’boy regular, watch your back as the ol’boys have tallies that extend across club membership. The mentality and incestuous nature of the court represents a life-long ability for a lawyer to manipulate court authority proportional to his standing. This is part of the underlying reason court-made rules are so vague — they can be applied in either direction — to protect some; to silence and discredit others.

ATTORNEY SMACK-DOWN AND ATTORNEY WHACK-DOWN This judge/bar retaliation against whistle blowing lawyers, is the attorney smack-down, when court and bar entities collude to use the force of licensing/regulation to punish a licensed attorney — the price for the breach of loyalty of rule one (not to expose insider secrets) is excommunication. Attorney whack-down is what is alleged to have happened to Vince Foster. I feared that greatly, as did Attorney Linda Kennedy and others. We took many precautions to stay alive. By comparison, think of this phenomenon as a more educated version of territorial tribal feuding, religious purging, isolated mountain clans, or teenage street gangs. Each is isolated and self-regulating. That’s the current court mentality, in Gucci. So if one club member is defeated and humiliated by an outsider — even if the defeated members was old, feeble, corrupted and weak — some other member of the gang will wait in ambush to retaliate. If there are too many encounters, then the enemy must be overcome and eliminated by someone from the group. Doesn’t even have to be assigned to do the act. It just gets done. Another area where attorneys and clients retaliate with conduct complaint slapp suits is in child abuse cases. It is a form of legal battering when an abuser can’t physically batter. A good reference can be found by Katherine Hine, J.D. on retaliation against professions who report child abuse.410 Morris Dees describes it well and too often in his story about taking on the KKK over several decades.411 The KKK was an authoritative group of mostly white men, who based on superiority of race, (with the bar, it’s class, education, and social standing) and a secret honor code, established a private internal style justice. The examples culled for this book also follow a parallel mindset of privilege and entitlement other group, that operate through tribal secrecy, manipulation, and institutional power. The modified court system enabled territorial tribal loyalties to usurp the primary duty to administer justice under the Constitution. By arming judges and their bar enforcers with the ability to retaliate professionally — the court has traveled a five-hundred year old circle in religious justice — to excommunicate and purge. By controlling lawyer regulation, the system avoids exposure, criticism, and perpetuates injustice which is rampant it is execution. Ironic that those that eschew religion in law, pluck its worst practices to control modern members.

409 For authentic and inauthentic forms of leadership, see Robert W. Terry, Authentic Leadership, Courage in Action, Josse-Bass Publishers, (1993). 410 http://www.thelizlibrary.org/liz/retaliation.html 411 Morris Dees, supra.

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Chapter Six — Tricks During Trial

105 A WASHINGTON WORD OF ENCOURAGEMENT

§

“A breeze is in the country to fix things.” I hear a talk by Congressman Steve Pearce, who offered his Washington view about overreaching government and mounting citizen frustration — “They will continue to expand until we stand up and say no more.”

He was talking about a number of Presidential Executive Orders that violated the Constitution, in reference to the following — Western ranchers federal land disputes that stop ranchers from grazing, based on a variety of federal orders and laws, including the Clean Waters Act, and the “monument” designation which closed off 500,000 acres of New Mexico land on the Mexico border, (no citizen or law enforcement access permitted)412 and — New research on the spotted owl that 20-years later — research demonstrates spotted owls have left the federal ‘virgin’ forests and hugely migrated over to lands that were timbered. Oops, got that one wrong, said the government agency, after shutting down the American timber industry. He also spoke about Reed, New Mexico, where a rancher twice has won in court, confirming his right to take his cattle across federal lands to water them. Still the federal government won’t allow that, so a second court said that since he had the right to water and the federal government wouldn’t let him access it, he could pipe water to his cattle if the U.S. government continued to not let him cross federal land. The federal government responded this week by putting up an electric fence.

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There are also Constitutional Free Zones along New Mexico’s border where the government claimed no constitutional rights are allowed. And he spoke about the taking of the Monument — a new national area announced by the President. It’s called a monument, (although at 500,000 acres, it should be a national park.) However no President can make a national park by executive order — that requires an act of Congress. But he can make a monument. No one can travel on this 500,000 square mile monument. It’s in southern New Mexico along the Mexican border and represents a significant corridor for the Mexican drug cartel.

6

What resonated the most was when he said — “There’s no joy in being an American anymore.” I have been worried about that, as I’ve assembled this book. Worried that reading it would be such a downer — as one of my first readers once inferred. Joan P. said, the first third I though you were a liar; the second-third I believed you; and by the third-third, I was angry. I wake up in the middle of the night, and I’ve never even been in a courtroom my whole life. I haven’t been able to sleep because of your book. What are you going to do to fix it? I put my career into law — to find in my enlightened self. The practice of law is a disappointment. Not clients or the problem solving. Those are rewarding. It’s the court system — the inefficient unfair process and outcomes. The judges and professionals in law are, to a large degree, a disappointment. I know three U.S. Supreme Court judges personally, and many more at lower levels. And never dreamed there was such a large group of educated intelligent privileged people who cheat or who stand by and let others in the profession cheat. Judges have so many social gifts — greater than other citizens — so why do they make and apply rules to make themselves even more powerful? Justice Bork calls it the First Principles of the Social Contract in a chapter about judge encroachments of the apple of our Constitutional freedoms.413 They will continue to expand until we stand up and say no more.

412 The trick of the land-taking as a federal “monument” is that a President has no authority to create a national park without the approval of Congress. By designating a “monument” he circumvented Congress. 413 Judge Robert H. Bork, The Tempting of America, The Political Seduction of the Law. Collier McMillan, The Free Press, 1990

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CHAPTER SEVEN: T  ABLE OF CONTENTS

CHAPTER SEVEN — TRICKS AFTER TRIAL §106 WRITING THE DECISION §107 PROTECTING AND ABUSING THE LAWYERS §108 SENTENCING TRICKS §109 THE DEATH PENALTY & LWOP §110 THE NUTSHELL EVOLUTION OF U.S. CRIME POLICY §111 GROSSLY DISPROPORTIONAL SENTENCING AS FAILED PUBLIC POLICY

TABLE OF CONTENTS

§112 MISTRIAL AND VACATING A JURY VERDICT

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Chapter Seven — Tricks after Trial

106 WRITING THE DECISION

§

HERE’S THE LIST OF WHAT WE’LL COVER IN CHAPTER 7. THE FIRST SIX ARE IN THIS SECTION. 1. One word decisions - denied 2. Empty formalistic decisions 3. Intellectually dishonesty 4. Ignoring precedent 5. Not for publication rulings 6. Outcome determinative decisions 7. Improper judicial manipulation of sentencing facts 8. Judicial Discretion Judge Coffey wrote in a two-year old zoning case (Nuns) that the outcome wasn’t worth the pen and ink it took to write the decision. As a last minute special assignment-favor for a New Hampshire Executive Counselor, Coffey demonstrated her usual rude but compliant Insider role that she did in other cases where she was specially assigned to implement something other than a rule-of-law case outcome. She also included language implying that she might consider the nun’s zoning case filing criminal (a zoning change to enable them to sell the convent to raise money.) Scary wording and all was extraneous dicta. Think of it as a peacock, making a display to impress. Inserting scary language was Coffey’s way of warning the nuns not to appeal. It took two decades to remove this water-carrying judge from office, but her paper and ink economy language reflects only a slightly stronger judicial arrogance than we see too often in other case outcomes. That arrogance sometimes is reflected as one-word decisions.

(1) ONE WORD DECISIONS — DENIED This treatment is disrespectful, and of course, designed not to give the defendant any reason to cure or any reason to keep appealing. It hides sins, gives no clues. It’s that same elite thinking that I’m valuable and you’re not that has subsumed the court system. I have spent considerable time trying to locate the number of backlogged cases in New Hampshire that were dismissed after the 2000 Impeachment trials, backed up for a year. All dismissed overnight with one word decisions. It’s a lot. The appearance is the same as the New Mexico judge who left for vacation in Las Vegas — use my rubber stamp on a hundred decisions, he said in a phone call to his clerk. I can’t return to even sign my name, much less read the prosecutor agreements. I’m really busy doing whatever it is that people do on vacation in Las Vegas. Incidentally, that’s what’s occurring in state courts — clerks sign, or key in, an electronic minute entry. When appeal rules require a defendant to attach a copy of the appeal decision, there isn’t one. A prisoner gets whip-sawed between the appeal court rule that requires a piece of paper signed by the judge and the actual court practice that has no paper. Which are inconsistent. Not worth my valuable time is the message to the parties.

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ON BEING ELITE

7

I can remember an old lithograph of a U.S. Supreme Court judge being served his luncheon meal on a tray in chambers, and I thought — you don’t even go get your own lunch? You are so valuable and so isolated that the rest of society has to cater to your precious thinking processes? Make your own lunch. Do your own dishes. I’d also recommend raising chickens. Chickens don’t know how important you are, and it will help in the humblepie lessons. If you don’t have an opportunity to be humble in your work, then try another avenue. These are important lessons for those charged with high leadership authority. If you really want to be humble, try geese. I recommend the Toulouse (French) variety. They don’t fly, and that helps when rounding them up, and for those tough practical lessons about how important you are, as well as opportunities to practice humility and kindness. Geese bond with you (to some extent.) And trust you. I once had a goose stand up, turn around on the nest, and lay an egg right in front of me — standing. After that, I named her. I called her Lucy Goose. 578

§106 Writing the Decision

No one is that valuable in America. Now that I’ve been married to one of these guys — along with the other Ex Wives of Judges, we can all say, Come off your cloud, and go get your own lunch. Now I can appreciate the wealth that comes from quiet solitude in our over-stimulated society. It is a gift — time to think — but not the kind of thought process that comes across because lunch is served on a tray by a maid or a clerk or one of the other lesser nobodies in the presence of great thinking. Chuck used to do that crap — he would brag to people that he hadn’t been shopping in a grocery store in decades. The little woman always did it for him. The fungible little woman. Once, when our wedding anniversary rolled around, he wanted to give himself a party — for his 25th Wedding Anniversary. We had only been married a handful of years, and I questioned his thinking. He was adding together all the years he had been married to four women! And he wasn’t really joking — he wanted a big lavish party. I gave him an extravagant birthday party instead and Heidi Arnold showed up in gold lamé curve-hugging dress to sing Marilyn Monroe’s breathy off-key birthday song to JFK. He appeared appeased. Heidi was a smash-hit.

(2) EMPTY FORMALISTIC DECISIONS The ability of a court to coin high-sounding legal phrases apparently justifying a case outcome, although in fact, the articulated reasoning is devoid of meaning. This phrase empty formalistic decisions was coined (or maybe appropriated) by a U.S. Supreme Court judge in his earlier years on the state Supreme bench. It is indicative of the court process where judges feel compelled to provide a written decision with language that suggests ‘thoughtful considered justice’ despite handling and actual practices that evade even-handed fairness and valid justice. But in actuality, the convoluted or nebulous thinking process and outcome are neither logical nor valid. (Earlier exercises have deconstructed common judge abuses and language shortcuts in logic and reasoning.) Group decisions can end up this way because of the need to negotiate consensus between opposing parties, or because the author of the decision lacks the writing or intellectual capacity or effort or standing to make the decision valid and consistent. According to Chuck, this happened frequently at the State Supreme Court review during his term during the 1980s. Judges get appointed who lack clear thinking and writing skills, so law clerks or others have to fill in, or else the case waits a long time for a single judge who doesn’t write quickly or well to get his work completed. The public never realizes this, and assigns a less competent judge undue respect and competence, based on judicial persona, not actual competence. A case also may be wrongly influenced by a predetermination or bias as to the outcome — and therefore ends up at the end decision, but for the wrong reasons. The judge writing the decision will have to step backwards to define some public justification for the outcome. In these cases, the reasoning sciences are walked backwards, causing a greater probability for error. It’s a matter of public appearances — private influences tend to distort outcomes, but in those cases, the need for high-sounding legal phrase may be more important than if the case makes simple logical sense and provides a logical flow to justice. Like applying expensive perfume after a sweaty athletic workout, (lipstick on a pig) the effect is often blatantly incongruous, but it’s hard to figure out exactly why.

Whether written by the trial court judge or on appeal, this type of written decision creates a new expensive beginning for a law-victim, who must attempt to untangle the judge’s convoluted reasoning to persuade the same court to reconsider, or a higher court to review and reverse. If the case is remanded (as mine was) back to the same illogical-thinking judge, (who is even more vengeful at the second or third trial on remand,) the outcome may be the same or even worse, because there is not mechanism for dealing with a corrupted process by a corrupted judge. So the cycle is an expensive, frustrating oppressive process, where the burden to disprove an empty formalistic decision is often an expensive and futile uphill effort. Sisyphus all over again. 579

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If the case end-result is determined by any force other than the fair presentation and impartial weighing of bona-fide evidence presented and admitted at court, then the legal process was corrupted. Sometimes, the greater the leap in fact or logic in the outcome, the greater is the requirement that the order ‘sound’ formal, logical, and judicial. This rationalizing cover-over language then becomes highly stylized, and may incorporate legal concepts drawn from other (inapplicable) areas of law.

EXAMPLE ONE AND TWO The judge may write that he is excluding evidence because it is the ‘fruit of the poisonous tree,’ but this case is divorce court, where this criminal defense is not applicable and there is no evil-doing prosecutor. But it sure sounds legal and nefarious — causing the victim to shirk at challenging a judge who appears to be accusing the victim of a crime of poison. The language is totally inappropriate, even as an analogy, but by mixing rotten-sounding apples together with oranges, the victim of such legal sounding poppycock is often highly intimidated and will not act further or dig deeper behind the judge’s ruling. Or the judge may write that a party has unclean hands, although it is entirely inappropriate with no allegation or bona-fide evidence to support such a conclusion, much less the judicial ruling. But it’s intimidating, nevertheless. An empty decision is one that arrives at the insider- approved outcome, by incorrect reasoning incorrectly, usually from the wrong end. In other cases, the judge will simply stretch a court rule to some new extraordinary quantum place, to appear to have a legal basis for doing an act he wants to do, but he has no bona-fide legal authority to do. Improper, illogical, and an inconsistent finding of jurisdictional and discretionary authority, this can provide outcomes consistent with judges’ whims or prejudice — reasons not couched in legal principles fairly applied.

EXAMPLE THREE In a series of cases1 regarding “purposeful discrimination” by prosecutors against potential jurors, where judges’ made discretionary rulings allowing (prosecutor) reasons for striking prospective jurors to stand although, although the reasons were later labeled, include the following — “implausible” “self-serving” “pretextual” “fantastic” “lenient” “forgiving” “absurd” “nonsensical reasons” “silly”

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“one which leaves vast room for discretion on the part of the trial court ruling on…objections”

7 1

Bennett L. Gershman, Prosecutorial Misconduct, 2nd Ed. Thompson/West (2007) at §9.9.

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§106 Writing the Decision

(3) INTELLECTUAL DISHONESTY The Intellectually Dishonest Decision: We all know the Supreme Court’s decision in the Claremont Case2 was intellectually dishonest.3 One high-ranking state attorney blurted this out with uncharacteristic honesty on a radio talk show. She was referring to the New Hampshire Supreme Court decision on the school funding case, and she called it “intellectually dishonest.” And it was.4 Judy Reardon was the Governor’s counsel. This phrase is an outgrowth of empty formalistic decisions language testified about by Supreme Court judges at the legislative impeachment hearings. Are intellectually dishonest decisions the same as outcome determinative decisions? As empty formalistic decisions? Is it a matter of semantics chosen by a well-oiled loose-lipped lawyer or a gentlemanly Supreme Court judge as to just how honest a phrase is — that each utilized when a case outcome wasn’t up to snuff ethically? It’s hard to tell because the ethics rules are so non-existent and non-applied. In the tradition of the Ol’boy legal club, this issue rarely gets acknowledged publicly and then it is treated as a family laundry problem — best kept inside the family.

CLAN PROTECTION SYSTEM This same idea that dirty family laundry created by immoral, selfish, sexually absorbed and other illegal antics of a socially-high-ranking person should to be automatically handled and covered-up by someone else within the family — is a concept I recently stumbled across in my reading. The description was about the JFK presidency,5 the close relationships between Kennedy males over three generations, and their pathological cheating in the family, in public office, and in society in general. The traits seemed to cross over all aspects of their powerful lives — politically, sexually, personally. I recognized the symptoms instantly, within three pages of starting of the book, but until this well-cited revelation, I was not aware that the disease being described had a name or was identified so completely — but within the court system. “The Kennedy’s belief that they were extraordinary people who could make their own rules began long before Jack was born. It started with his grandfather.”6 … “That this grand man, this man of energy and intelligence and glamour and power was to a certain extent was dehumanized by the privileges that made him who and what he was. He allowed us to think that there are people who have it all. And that’s a very dangerous illusion…”7 Dehumanized, by a dangerous illusion.

2

The Claremont case in New Hampshire was one of a national lobbying effort to change school funding to a state mandated tax base. The trick was to have some “expert” (here it was a state attorney general) admit that the state had a “duty” to provide education to all students. There is no constitutional duty in the state constitution, but New Hampshire State AG Leslie Ludtke testified in her oral argument there was — so a whole new spending program got mandated by the judges. It’s focus was taking local tax revenues from wealthier communities, to give funds to poorer communities (i.e. Claremont.) Kind of a state Robin Hood tax for education. This brilliant winning strategy — a true coup in the language of gaming — went on in state after state all over the country — the sudden search for a Constitutional right to education happened in many states about the same time — instituted one way or another by state judges. It became the basis of a new taxation system, imposed (directly or indirectly) by third branch judges (in violation of every Constitution separation of powers provision, state and federal.) This kind of judge-coup happens frequently. But it is hard to deconstruct the illegitimacy of it while you are in the court-vortex.

3

Statement by Attorney Judy Reardon, Legal Advisor to Governor Jeannie Shaheen in a radio interview.

4

The judges tried to crucify Attorney Judy Reardon for failing to uphold the integrity of the court for her honest, albeit improvident public statement. Judy had enough protection in the Governor’s office, and she elected to fall down lightly on her own sword to avoid the pointy end of theirs.

5

Award winning investigative reporter, Seymour M. Hersh, The Dark Side of Camelot, Little Brown & Company, (1997) see p. 14.

6

Seymour M. Hersch, The Dark Side of Camelot, Little Brown & Company, (1997) at 14.

7

Id. Of interest to readers, is that Seymour Hersh is an American investigative journalist, in particular in military and security matters (My Lai Massacre cover-up and Abu Ghraib prisoner mistreatment are two.) He is currently writing about ISIS. He is a former report for UPI, AP, and his notable awards include a Pulitzer Price for international reporting, 2 National Magazine awards, five Polk awards, and the George Orwell Award for Distinguished Contribution to Honesty and Clarity in Public Language. I can’t believe I didn’t read his book on JFK until 2014. It is a lynch-pin to understanding the ‘type’ of men responsible for creating the bad behavior underlying the reports in this book. Do not be confused by the white/male model. I found it also in the Arab heritage clans in New Hampshire as well. It is a function of tightly closed group thinking and protection.

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Similar to Hersh’s book about another category of powerful men with secret personal weaknesses — how they socialclimb and prosper, manipulate and cheat the country (largely in secret) over generations. How they are able to fool themselves, and live in a world that honors and grants them undue license to rule with impunity. Letting certain status or clans of people operate under this kind of illusion means — there is an elite class of insiders, who cheat and do not have to take responsibility. The common idea that privileged insiders — living under a private set of social values and rules — are unaffected and immune to the same rules they apply against the ‘poor bastards’ all over the rest of the country. Those common folk (the rest of us) who have to live a daily grind outside this elite circle — is an un-American concept. This lack of connection to what the meaning of democracy is for the rest of us — runs through the examples of imperial mistreatment I have been writing about in courts for almost two decades. How imperial judge treatments escape public notice, censure, correction, and punishment — why these elite men don’t get caught, corrected or punished. And if they do get caught — they don’t get punished the same as anyone else. They don’t get caught because repeatedly someone else within the system comes along and (on appeal or on review, or by discretion) covers over the dirty-laundry problems. The Camelot book is interesting for its parallels with Executive privileges and power in the White House, and the same overall privileged attitudes seen in the third branch. But it is chilling to come to the realization that those elite types — living inside their own illusions of power and grandeur in our society — are allowed to live outside the rules and law that they apply to the rest of us. The cultural arrogance. The haughty attitude of disregard for the rights of others. How judges are routinely allowed to get away with manipulating to advance their own sad and immoral group benefit by taking advantage of others, including the people who work for them. Sycophant men. The same gender disregard for women. How it is okay to screw with people considered ‘lesser’, because — “poor bastards”… “the pain of poor people is different from ‘our’ pain.”8

It occurs daily because judges do not have to be accountable — practically ever. Quietly fawning, other insiders jump in and do the clean-up these privileged types require in their private and professional lives. Both my ex husband and JNad come to mind, as for two decades, they gave and received special favors as a matter of ‘right.’ I recalled how Mrs. JNad tried to order me removed from her husband’s public hearing on his Supreme Court nomination. The false accusation, the elitism of self-perceived royalty. In case after case, JNad ‘forgot’ to inform parties he was conflicted and unable to sit. When caught, he assigned the case to someone he could direct or control. Like a mini-me. It’s the Kennedy system. Jack never had to ask Bobby for clean up. He just knew and did it. I asked earlier why the State Supremes did not disclose and correct what was a judge-pattern and frequent practice of judge abuse? Why hide it? Was it a part of their reverence to the man? (JNad wasn’t that charismatic or liked on the higher court.) Or was it an unspoken duty, loyalty, and the need to protect the secret insider? If the Supremes had accurately clarified the conflict-of-interest rule earlier, then they would have lost the use of that same trick in their own conflict of interest cases. The rules? “We wrote them and they just don’t apply to us.”9

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What judges forgot in this special system is the incentive for reform. Nobody has to face their mistakes; they just get handed over by the next judge. There is no confession, no acknowledgment of personal weakness, no opportunity for spiritual lessons, no failure. So the system doen’t ever get to move up to the next level — opportunity for personal or institutional growth, correction and meaningful change. There is no betterment. This is as good as it gets. And that’s scary. I’m uniquely qualified to say that because of my background, law training, law experience, and marriage to a representative sampling of one of these guys up close and personal.

7 8

President Jack Kennedy, Id. at 33.

9

Paraphrase of Judge Sherman Horton’s testimony at the legislative impeachment hearings, 2000.

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I once traveled with a high school classmate — a foreign exchange student my senior year at Oakwood High School. We went to the U.S. Secretary of State’s office in Washington to present 10,000 signatures she collected from Japanese citizens,10 urging the President of the United States to sign the Ottawa Anti-Land Mine Treaty. They wanted the American President to agree that the U.S. would join over 130 other countries committed to stopping the use of land mines around the world. Landmines currently exist decades after the war ended — whichever war the U.S. was waging then. Vietnam for example. I was assured by the Secretary of State Weapons Abatement Officer that treaty signing would never occur because if America was invaded then we could not plant land mines within our states’ borders.11 Wow. That’s fine with me. No land mines here and I live amongst thousands of acres of mile-high desert so barren even cactus don’t grow. He talked about alternative ‘humanitarian’ land-mines — with chemicals or germs or colored dyes. I envisioned sleepy-time sickness. If an invading enemy steps on a landmine, he would fall asleep for 48 hours. We could then just go to our borders and pick up the sleeping invader bodies like harvesting corn with a John Deere tractor.12 Anyway, State Department rejected my friend’s treaty signing idea, but took most of the 10,000 postcards. I saved some back to send directly to the White House. Two years later, I read in Al-Jazerra that the President Obama signed the Ottawa treaty. That was a pretty high life moment when I read that. It’s literary license to clam any credit, but what hit me hard about the democratic process is that — As Americans, we can. We can have impact. It’s implied in our rules — stemming from the U.S. Constitution. And the same process extends to 10,000 Japanese citizens, who also believed in our American democratic process.

So this secret court insider system rankles me now all the more — where we little people are not allowed to win, because we are heretics in thought — so fairness gets manipulated out of the system. We are not give the opportunity to assert fundamental rights and have it heard. Our evidence and witnesses are improperly excluded at trial, and we cannot get a fair judge to hear the case in court. We only get to participate in the system because the attorneys want to take our money. It’s a game, and we feed them. Alright. To be fair, as a divorce lawyer, I realized that the trial process gives people a place to go to get divorced without killing each other. But that’s pretty basic, and there are much better methods to achieve that end without subjecting yourself to this corrupted court/judge process. Judges know it’s not a fair process by design or function or practice. It’s not the odds or a lack of hard work or lack of intelligence — it’s that the system is rigged from the inside so you aren’t allowed to win. And the judges that are good? They don’t speak up. They don’t clean out the bad judges, and they sit back and allow a corrupted appeal and disciplinary system just run amuck. So even if you get a good judge assigned to your case, and your case gets handled fairly, those good guys aren’t doing anything about the other bad guys. If a judge is ‘caught’ or exposed making these private self-serving decision/laws — for example, if a litigant with a big mouth calls a reporter who responds with questions, or maybe a legislator submits a bill to undo the legal abuse, the court will engage in first damage control, then media control. The court’s ability to stand on their bogus argument — that ‘judges are the end-of-the line’ as final arbiter of all decisions regarding laws — makes the stakes for defending ‘empty legalistic decisions’ an institutional all-or-nothing game (for them). Virginia experienced a Pitchfork Rebellion in 2009, where judges are appointed by legislators — who screen and horse trade judge candidates between Democrats and Republicans — in meetings they hide to avoid public input. (South Carolina is the only other state in the union that picks judges like this, although New Hampshire, with the Executive

10

Kumamoto Landmine Clearance Campaign (KLCC), Kunamoto Japan, Hiroko Yamashita Saisho, Director.

11

Which seems to be the current political scare-tactic about why Americans must continue bombing, staffing and funding the Middle East and 99 other global wars — to contain the threat of an ISIS invasion of the U.S. and to fan the flames of the war-industry indefinitely.

12

Don’t laugh. Turns out there is an entire landmine-harvesting industry, with a glossy color magazine — a venerable catalogue for global sales of American landmine equipment and services. I left the Secretary of State office with a handful.

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Councilor approval of the Governor’s pick for judge — is probably a more corrupted system.) In Virginia, the legislators hid their judge-picking sessions from the public. Virginia appoints judges for terms (not forever), so bad judges have to get re-appointed and voted on in the general session. This Virginia rebellion hearing was about Fairfax County Judge Gaylord L. Finch Jr., who made a lifetime career on two courts. He has a 44% reversal rate,13 and citizens hated him enough that 100 showed up at the secret committee meeting along with 46 attorneys who praised him publicly, but some privately said they opposed him.14 Some secret meeting? But it sounds from Tom Jackman’s story, that the legislators were very surprised to find any citizens there. Even the numbers were so similar to the J. Nadeau Executive Council hearing in 2000 in New Hampshire. “We talk all the time in this delegation about how important it is for people to leave the courtroom having felt like, whether they won or not, they were fully heard. And you don’t that when you don’t have some explanation of why a decision is made,” said Senator Ken Currinelli from Fairfax.15 As did the New Hampshire Governor’s Council, the Virginia decision makers for Judge Finch’s re-appointment ignored the public input and voted long-serving Judge Finch to another term, making him 38 years as a juvenile and family court judge despite his abysmal record and numerous specific complaints. Some complaints centered on how Judge Finch would not give reasons for his decisions — either in court or in writing. The lack of any indication of any thoughtful, logical reasoning process (as opposed to an Insider outcome or other incompetent or flawed process), and problems with his truthfulness. I suspect those two are related. One word decisions — denied — avoid exposing the lack of analysis and review because the case is destine to an outcome determinative result. Writing too much — or anything at all — exposes the corrupted process. With a 44% reversal rate (and that’s only the cases that were appealed) — there is arguably a bona fide question about Judge Finch’s competence in law. Notable in the Finch-complaints was the Judge’s arrogance and pattern of making decisions with “virtually no explanation,” especially a ruling on a school district boundary change. Parents felt that Finch just ruled for the political Insiders and disrespected not only their efforts (stacks of legal briefs, $120,000 in legal fees, and his comment at trial that he had only 10 minutes preparation, despite being assigned the case three weeks before.) It appeared he did shoddy work. Parents apparently felt, as the lawyer for the Belle Isle Nuns did, that this ill-prepared judge was a political appointee for Insider interests. Finch’s re-appointment materials to the Committee included a letter from his clerk of court, who wrote why she opposed his re-appointment. Finch subsequently sued his clerk of court for libel.16 Although approved for re-appointment, because of the Pitchfork Rebellion pressures Finch resigned. For this genre of cases, the Court Branch tries to squash all criticism of judges. They are protecting their unified power and authority to make law (not necessarily the individual judge under attack.) So even if criticism is improvidently said by the Governor’s own attorney, the State court system must retaliate against the critic. It’s easier to retaliate if the critic is an attorney. Just call out the PCC, file an attorney conduct complaint, and threaten the attorney’s license to practice law. Their argument is generally — that the authority of the court ultimately comes from a public belief that courts are inherently fair and unbiased. Therefore, all criticism, which potentially exposes unfair and biased court handling, could shake the public’s belief in the judicial process.

CHAPTER

Do you see the illegitimate logic here? The greater the public challenge to a court order — even an empty formalistic decision — or an intellectually dishonest decision — the greater will be the court’s effort to uphold it as law of the land. This has already been exposed as a bogus, self-serving, and non-persuasive argument (not widely acknowledged by

7

13

16 to 21% reversal rate was common for Virginia judges. J. Nadeau refused to list his cases, and the New Hampshire courts don’t make that information public, so we had no idea, and could not check ourselves at the time he was appointed to the State Supreme Court in 2000 He declined to produce a list of career cases.

14

Tom Jackman, Va. Judge Selection Process Criticized, Group Challenges Lack of Public Input, Washington Post, March 2, 2009, page B01.

15

Id.

16

Insiders sue because they can — usually for free. It doesn’t mean the suit has a whit of merit. It can be retaliatory or punishment for displeasing a judge or other insider.

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judges.)17 Fairy tales call this the emperor is wearing no clothes. It’s the oldest abuse of authority. You can’t criticize me/us/ them because someone might believe you and that would shake public faith in the system. Duh. Courts which resort to upholding decisions through raw power and might, should not have the same public respect that flows from decisions which are not empty and formalistic. In the end, law has to be relevant to the people to whom it applies, plus laws have to be based in good faith. Non-reliable law risks not only public criticism, but it stimulates other non-bonafide judge uses of power. That leads to a self-perpetuating cycle of abuse: judges personally punish those who question intellectually dishonest rulings, and they continue to question illegitimate rulings. Judges punish more; litigants continue to question. Years of internal power-building by the courts through bar and court takings — which have installed several internal protective mechanisms designed to eliminate public criticism — now bolsters the court reliance on the self-serving concept that only the court can rule on the propriety of laws. It was never intended to be thus. Whether empty formalistic decisions stand as law or will be exposed and corrected as empty functions of court power still remains to be seen. Change may involve challenges to the judge-power-system, perhaps at state constitutional convention, (which in New Hampshire has evaded holding a con-con for a half-century now.)18

(4) NOT FOR PUBLICATION RULINGS Increasingly, these case outcomes where there are judge problems — do not get reported in official case reports — by order of the judge. They stand as ‘private laws’ in particular cases where the need for a one-shot ruling may work to cover up or protect court-individual or group interests. We will have two different discussions later about my Constitutional Law Professor’s lecture on stare decisis.19 The lecture about how cases are supposed to apply earlier outcomes and existing case precedent, in order to have legitimacy, validity and trustworthiness.20 The legal system currently but not always, permits “the courts” — (which are actually just individual judges acting in office) — to be the final arbiters of all law/legislative disputes about what is legal — including overturning acts of Congress. It assumes control of other political and social issues and agendas by making up and deciding its own ‘law’ disputes in court, so it can rule on its own agendas — even those where individual judges (or collectively the court) have a personal or institutional interest in protecting themselves from allegations of abuse of office and other misconduct. One of the tools “the intangible court” has for guarding the constitutional hen house is to allow a fox to be the judge.21

(5) IGNORING PRECEDENT Stare decisis is a bedrock principle in American law. This is a sensitive issue for me. I had a falling out in class with my law professor that lasted months. On Wednesdays when Judge Anthony Kennedy’s new appellate case decisions were released in the law library, I would try to go read

17

Alfini, Lubet, Shaman, Geth, Judicial Conduct and Ethics, 4th Ed., LexisNexis at 13-49, discussing the Gadfly case and others involving Judicial Conduct complaint secrecy rules, which were found to be similarly self-serving and not-bona-fide compelling state interests. [cited as “Kamasinski, 797 F. Supp. at 1097.”]

But see also Kamasinski v. the Judicial Review Council, 97 Fed. Supp. 1083, Docket No, 2:91:127, April 21, 1992, and 843 F. Supp 811 (D. Conn. 1994) and 44 F.23d 10 106 (2nd Cir. 1994). Also found online at Justia U.S. Law at — http://law.justia.com/cases/federal/districtcourts/FSupp/797/1083/1447681/

18

There is a state constitutional provision for an election vote on a citizen review/constitutional convention every decade.

19

“A fundamental doctrine that when a court has once laid down a principle of law as applicable to a certain set of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same.” Blacks Law Dictionary, 5th ed. Blacks also calls it “a deliberate or solemn decision” … of binding precedent in the same or lower ranking courts.”

20

This concept is revisited in the Appeals chapter.

21

For a quick summary of the lack of institutional ethics rules and a general failure of courts to enforce/act regarding judge misconduct in the 20th to 21st Centuries, see Alfini, id at ix.

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them before class. He taught stare decisis by describing the law as a field of rocks. All sizes and shapes. Each rock represents an earlier court decision. That decision is stabile — like a rock. To uncover the existing law, he taught, we lawyers were to go turn over the rocks to find the applicable holding, then to apply the holding to our case. That’s his analogy. It’s an important court principle. In fact, I think the integrity of our law system is based on this building one case consistently on top of earlier court decisions. It’s an extension of the Chapter 1 homework section on super blocks in a case. It keeps judges from going off willy-nilly under their own biases. At law, that’s called going off on a lark of their own. After that first Constitutional Law case with my brother Greg, I sat in the front row, center seat. Always. One Wednesday Judge Kennedy’s 9th Circuit decision on affirmative action came out. But it wasn’t consistent with the cases we had just reviewed in class a week earlier. I used to make little yellow sticky notes — one for each case, with a name and a summary, and stick them inside the front book cover. I got the idea that the Wednesday decision didn’t follow stare decisis. So I raised my hand and asked. It’s one of those times in life — like wetting your pants in school — or not having a hula hoop when 200 other kids brought theirs to school for hula-hoop day. Memorable, but in a bad way. Kennedy got angry. Very angry. He was quiet. He refused to discuss it or answer my question. But the whole class had made a sound — a collective intake of air when I asked the question, and I realized that somehow, I did something that one wasn’t supposed to do in polite society. What does it mean to throw out or evade stare decisis? Is it a political act? Is it bad?

The New York Times June 26, 2007 had an op-ed about the Roberts’ Court pattern of ignoring stare decisis in three rulings. They related to — 1. Campaign Spending Loopholes 2. First Amendment 3. Church/State challenges The thrust was that the court is making “mincemeat” out of preceding rulings (stare decisis) already established by less conservative courts, by distinguishing them into little bitty pieces to avoid stare decisis — or the established rule of law. Now ignoring precedent is something the court has done (occasionally) for hundreds of years. But this tiny trivia differentiation, used to defeat a clear intent and policy because it is politically out-of-fashion? Not expedient? Inconvenient? Is the court playing around with intellectual nuances? That seems disingenuous and outcome determinative. Is the Court acting in defiance of Congress? Do they really know better? Or do they just assume that power?

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(6) OUTCOME DETERMINATIVE DECISIONS

7

Outcome determinative decisions are case results predetermined by some criteria other than the fair process of law. These cases are improperly influenced by judge factors involving some kind of personal or institutional self-interest. Constitutional due process rights demand that cases be decided by a neutral judge based on properly admissible facts and evidence presented at a fair trial. However, these cases have a secret agenda. At question is not whether cases get determined based on judge bias, favoritism, insider-influences, prejudice, retaliatory motives, incompetence, political expediency or corruption. The question is how often? At the time of the legislative hearings investigating ordinary, routine, but secret actions of top court judges, the House Investigation Sub-Committee was looking at judge acts done privately in chambers to evade the law. I remarked to Mrs. Thayer that my ex-husband often told a cocktail party story about an estate case on appeal where the Supreme Court

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judges decided the outcome purely on their dislike of the husband. Chuck said they made the decision at conference to stiff him in the appeal. No matter who or what they wrote in the decision, this guy was going to lose because they didn’t like him personally. Although I had never read the case, did not know its name or citation, I remembered those facts. The husband and wife were in divorce. The wife died the day the divorce was granted. Did the husband receive a marital share of her estate because she died before the decision was released? That’s all. I mentioned this phenomenon, calling it an outcome determinative decision, and Judith Thayer instantly recognized the pattern, and said that her husband, also had often come home complaining that the judges engaged in that kind of conduct. Stephen Thayer apparently did not find it amusing, (as Chuck did) but was disgusted. I suggested to her that we each write out affidavits of our knowledge — about top state judges making outcome determinative decisions and independently submit them to the Chairman of the House Investigatory Committee. I wrote a letter and swore to it under oath, and for the first time researched state case law to determine the exact name of the case referenced in the cocktail party story. I was later told Mrs. Thayer also submitted a letter to the investigatory committee, about her knowledge how the judges acted capriciously in secret to alter the bonafide outcome of particular cases. After months of investigation and hearings, the Chairman of the House Judiciary Committee finally announced he received letters from two wives, which the committee would NOT hear. There would be no testimony, no investigation, no information. As ever, the committee chairman’s public tone and private explanation were that the letters represented only the whiny complaints of emotional and unreliable women who lost in divorce court. The implication was that what we had to say was unreliable because the affidavits came from females who ‘had a bone to pick with the court.’22 The letters written were rejected without being presented to the committee. The chairman explained they were an underhanded attempt to substitute a public complaint for an appeal. This is classic gobble-de-gook. The language which judges routinely say to brush off and dismiss secret judge abuses — about how top judges routinely operate in an underhanded and unethical manner to cheat litigants. In outcome determinative cases, the arguments, pleadings, exhibits that are allowed (or disqualified); the selection of experts (allowed or not); the legal precedent cited and the accuracy of that citation; — and any other tools of influence — are never as important as the judge’s bias. Judicial bias based on the insider system acts as a trump card in any case before the court. The public show of a trial still occurs, but the case outcome is pre-established for reasons not readily apparent on the surface. Look for the trial holes. When the judge’s pattern of ruling is outcome determinative, there will be holes in the trial — the absence of facts and evidence — that would allow jurors a complete picture before deciding a criminal outcome. Or the record is missing the evidence (offered and suppressed, or hidden before trial) necessary to prove some important element in a civil case. “The need to give intelligible content to the fundamental constitutional rights of a jury trial”23 means the process of exercising judge discretion over various factors — to keep in or out of trial. It means the bias of judicial activism that impacts the trial process in an unfair incomplete pattern — is patently unconstitutional. Many cases in this book are examples of the outcome determinative process where insider practices prevail over law, rules, and procedures. It impacts case outcomes. The case loser is left to ponder, review and unravel the case inconsistencies for years afterwards, but absent some exceptional expose, the court process itself provides protection and cover-up for this kind of insider exploitation and abuse of the law. The most practical obvious demonstrations occur in cases where judges are divorcing their spouses. These are a venerable Achilles Heel. A cornucopia of ol’ boy corruptive practices because judges almost always extend deep professional courtesies to other judges. These outcomes flow from a pile of quirky and illogical rulings, multiple legal and factual errors, and employ the largest number of tricks and abuses.

22

This is similar to the language the Concord AG/FBI used in the Concord Bomber case, where they picked up or arrested men who had testified in legislative hearings because each “had a beef with judges.” By now, I hope readers see how invalid and discriminatory this kind of sexist, in-group language is. Of course, Chairman Henry Mock was an elderly white privileged male, who largely played along and was lenient and sympathetic about establishing rules of operation that protected the other elderly white privileged males under investigation. While he couldn’t stop the investigation, he appeared highly sympathetic. New Hampshire is a small politically close state.

23

From Blakely v. Washington, 542 U.S. 296 (2004), about the involatable right of juries to decide at trial the facts upon which a defendant is sentenced.

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There really wasn’t any reason to go one way or the other. There was no case law. We just didn’t like the guy and wanted him to lose.

ATTORNEY WHISTLE BLOWERS The second broad avenue for examination is the handling of cases involving attorney whistle blowers — attorneys and others who go into court after they have publicly criticized judges or the legal process for misconduct. Those case outcomes are often another pile of quirky and illogical rulings, multiple legal and factual errors, and employ a large number of sneaky judge tricks. I took a lot of time deconstructing my own disbarment case, as an example for others to understand how this comes down. My discipline and court records were all supposedly opened (unsealed) at my request, and reporters from the Concord Monitor and Dateline combed through them looking for dirt.? More scandal? But they ‘missed’ the real story, because they, like the JFK story, didn’t want to report on Insider corruption. Maybe it’s dangerous to report it? I found that to be so. But isn’t there a public duty in there somewhere? Is reporting just about media-entertainment, high ratings, Pame Smart-sensationalized reporting? Bias based on the internal ol’ boy system of merit and demerit, the PCC and JCC rulings — are the trump cards of judge activism. This represents the tricks judges may do in any other case, but it will be harder to pick out which category of cases get this special treatment once investigators stray from the divorce cases of judges. The Douglas case. To this point, there are dozens of examples of both separate and combinations from the Douglas case — all which evaded correction. I’m sure there are more ‘worthy’ cases of much greater injustice — but the Douglas example is familiar for me and over time, the enlightenment of the abortive legal process, circular logic, and manipulated processes unfolded. Sometimes painfully. Sometimes just as enlightenment. It takes time. Each judge trick acts is a building block. Bias works like an architect’s drawing — the final result that fits all the little tricks backwards to make a picture of what happened in the months and years before and after trial. But like constructing a building from the penthouse down, it is…impractical and illegitimate. The bottom line is not whether a case was determined by means of one or two or a dozen or a hundred illegitimate acts, but whether the outcome was pre-judged by bias, favoritism, insider influences, prejudice, retaliatory motives, or incompetence. Each is a form of corruption done by an individual acting from a position of authority and power. Each is uncorrectable.

After Trial Do-Overs

CHAPTER

So even when the appeals court orders a do-over, the trial judge doesn’t care what the appellate court orders, because the trial judge will only walk through the steps of a do-over trial — knowing with discretion the second outcome is going to be the same as the first (or worse.) The losing party will lose again — double, because they have to pay all over a second time. I think my own divorce case is proof of this three-hour trial versus three-weeks. In each one I was awarded nothing. The second trial I ended up with zero dollars, various liabilities, and Coffey ruled that Chuck got business, house, everything, yadayada, and (bottom line) I owed Chuck $166.71 for “offsets.” Both times he took everything of positive value — tangible and intangible. The court ducked the 4th Amendment search and destroy trash order. And turned inside out, JNad’s intellectually dishonest ruling on the power of Chieftians. I won’t go into the steps — we are all bored with the Douglas case by now, but I encourage readers learn out-of-box analysis — of what a judge does in and out of court. Then the little contrary ideas will blossom into a field of flowers for picking. That’s both the beauty and the curse of law.

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107 PROTECTING OR ABUSING THE LAWYERS

§

(1) INEFFECTIVE ASSISTANCE OF COUNSEL (IAC) The Constitution provides a right to free counsel for criminal defendants at trial. Judges have invented a doctrine that presumes the lawyer is competent. If there was reason to think that the lawyer’s incompetence affected the trial outcome and verdict, then the defendant did not receive the presumption of the Constitutional trial right at the hands of the State.24 This was provoked because by 1932, judges reacted to the structural prosecutor bias embedded in criminal law trials. See fn 24. Overall, public defenders and others practicing at this level are less likely to have the elite ol’boys traits and ambitions and resources, and there is no common law right to effective counsel. So the concept was developed by state court judges25 to overturn verdicts in cases where the defendant did not receive a fair trial because of egregious ineptitude or incompetence. The U.S. Supreme Court identified the doctrine of IAC in 1932.26

EXAMPLE ONE: MY BROTHER ERIC (“E-R-I-C” ARE THE 4 MIDDLE LETTERS OF THE WORD AMERICAN. HE IS STRONGLY THAT, DESPITE ALL THE ABUSE HEAPED ON HIM BY JUDGES AND PROSECUTORS. HE THINKS THEY ARE AN ANOMOLE. THAT OF COURSE, FITS THE CLASSIC PATTERN OF ‘INNOCENT THINKING’.) Eric was assigned a state attorney after his conviction. That attorney did nothing until after the deadline for filing an appeal (Rule 32 — Arizona state post-conviction relief.) When the family finally tracked the lawyer down (he wouldn’t answer his phone), he claimed he was depressed and unable to work from a mental condition of clinical depression caused by his change of sex condition. (Or alcoholism, we could never really determine exactly why he couldn’t function for court. My parents went to court, got a filing extension, and hired a private firm that also did nothing, causing the need for a last minute scramble by family members to meet the second appeal filing deadline, and for later amendments to the first appeal filed.

EXAMPLE TWO: TOMMY D. CASE On its own initiative the court systematically expunged the name of the defendant’s attorney from an appeal based on ineffective assistance of counsel. The judge refused to release the attorneys name publicly, and made threats so no one wanted to say the lawyer’s name. We will call him Attorney Screw-up. The court’s concern over the reputation of this attorney appears misplaced and indicates some pre-determination of the appeal outcome. Any acts of favoritism original with the court, which have no precedent in rule or at law and which serve the interests of one side over the interests of the other, smack of bias. Whether the court was just protecting a friend, or making a judgment call that the defendant’s appeal was without merit (i.e., ‘not meritorious’) the name and professional reputation of the defendant’s former attorney was relevant to his appeal. The discretionary action, unique and otherwise not commonly done in other cases where ineffective assistance of counsel is the defense, smacks of unnecessary protectionism. The implication to an objective disinterested outsider is that the court must have found the brief to be slanderous or libelous to Attorney Screw-up, and therefore the defendant was likely lying or misrepresenting his case on appeal. To have to protect Attorney Screw-up by expunging and sealing his name, even in the face of later motions to disclose 24

Sara Mayeux, “Ineffective Assistance of Counsel Before Powell v. Alabama: Lessons from History for the Future of the Right to Counsel” (September 25, 2014) http://www.legalethicsforum.com/blog/2014/09/sara-mayeux-ineffective-assistance-of-counsel-before-powell-v-alabama-lessons-fromhistory-for-the-f.html, http://www.legalethicsforum.com/blog/2014/09/sara-mayeux-ineffective-assistance-of-counsel-before-powell-v-alabamalessons-from-history-for-the-f.html

25

The doctrine was first articulated in Powell v. Alabama in 1932. By the U.S. Supreme court.

26

Mayeux, supra.

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the name publicly, strongly suggests the defendant’s brief was pre-judged by the court in some aspects before it was considered for ruling on appeal. It’s a systemic problem: The persistence of similar complaints of unfair trials across very different time periods, and despite much ostensible doctrinal change, suggests that the inequities of the American criminal justice system are structurally embedded in the adversary process more than they are a function of the specifics of the current iteration of right-to-counsel doctrine. As such, this history lends support to arguments for criminal justice reform that emphasize the need for systemic legislative and policy change rather than merely doctrinal tinkering.27 (emphasis added) Examples of egregious attorney ineptitude include, inexperienced lawyers, those who spent little time preparing, those who were appointed because they made campaign contributions to a judge’s election, those who presented flawed and inadequate arguments, those who slept in court, drank heavily, used illegal drugs.28 In other words, ineligible or incompetent. A remarkable defense lawyer in Boston, Attorney Scapicchio noted “defense lawyers are not widely held in high esteem.”29 Yet her success is touted even at U.S. Supreme Court levels where she successfully orally argued “to strike federal sentencing guidelines that required judges to lengthen sentences not presented to juries.” Scapicchio offered a few insights into her criminal defense successes, including the advice to attack the police investigation, including reports and processes of investigation that the prosecutor and police are willing to stipulate to. They cover over mistakes by agreeing early in the case that the police process is not an issue. She has been able to challenge eyewitness who were not there, and police challenge false police reports, such as the one filed by Detective Sergeant Daniel Keeler who claimed he videotaped the crime scene with a detective — all false and not there. That resulted in the acquittal of James Bush, accused of shooting a 3 year old in a home invasion. Scapicchio starts at the bottom — challenging the police investigation — which is so often slipshod and results in false reporting. Attack what they concede to, is her advice.30

(2) PROSECUTOR MISCONDUCT How prosecutors came to dominate the criminal justice system, from an excerpt from The Economist:31 Most prosecutors are hard-working, honest and modestly paid. But they have accumulated so much power that abuse is inevitable. As [Justice] Jackson put it all those years ago: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts with malice or other base motives, he is one of the worst.”32 To this post, Munroe Freedman added: Most prosecutors are white upper class and have no contact with African Americans.

CHAPTER

Two theories often used to evade widespread prosecutor misconduct on appeal are harmless error and plain error. The blog lawyer discussion forums present feasible rule/changes for correcting one part of what is a widespread systemic problem, and it goes to how prosecutor misconduct is covered-over and actually facilitated by reviewing judges, predicated on ambiguous law, and generally tolerated wink-wink by judges and the legal system. How defense attorneys

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27

Mayeux, supra. see also Mary Bowman, “Mitigating Foul Blows”http://www.legalethicsforum.com/blog/2014/09/mary-bowman-mitigating-foulblows.html

28

This list is compiled from findings in the 200 page Texas Defender Service report — a non-profit organization of lawyers who represent death-row inmates in appellate court.

29

Boston Globe Article, Defense Lawyer successfully takes aim at police, system, May 10, 2005 at B5.

30

Id.

31

The Economist, Criminal Justice, The Kings of the Courtroom, How Prosecutors Came to Dominate the Criminal-justice System, October 4, 2014. Online and print editions.

32

http://www.legalethicsforum.com/

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fail to timely address the prosecutor abuses, how the reviewing judges fail to reverse these kinds of cases — has created a travesty in justice — is a systemic problem with no foreseeable change. If you are defendant, this is a travesty in justice. Helpless Piety33 Mary Bowman writes: For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel’s failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts’ attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary. Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases. [emphasis added]

(3) PUBLIC DEFENDERS Overall, public defenders and others at this level are less likely to be ol’boys in the classic sense. Judicial bias almost always flows to prosecutor and law enforcement in criminal case handling and sentencing. It seems to be part of an authoritarian court culture. On the other side is the public defender — who are underpaid, overworked, and at the bottom of the professional social spectrum in terms of ol’boy insider power. Although paid by the state, their salaries are not commensurate with those of prosecutors, and the funding for offices, staff and resources are nowhere commensurate. The represent alleged criminals. We saw how the social policy/sentencing code shifts judicial power from judges to prosecutors. And how prosecutors have a disproportionate amount of power over both charging and sentencing. They also hold the first early and ongoing evidence collected by law enforcement, and prosecutors control whether or not it is provided to defense — and when. We have also heard from Gershman’s book on Prosecutorial Misconduct, why it is a natural human phenomenon for judges and prosecutors to emotionally bond with each other due to ongoing contacts, background, common goals. On top of that, prosecutors lie and facilitate others lying in trial. Think of it as Friday Night Lights in a tiny Texas town — football jocks versus the school nerds and outcasts. They all belong at school — some just belong more than others.

HIDING THE PUBLIC DEFENDER In Tommy D’s case the judge, on his own initiative, systematically expunged the name Attorney Screw-up from an appeal based on ineffective assistance of counsel. Then the judge refused to release the attorneys name publicly. Remember, this is the attorney who mid-trial, said his client was guilty? And he never told or discussed it with his client? Deaf Tommy couldn’t read lips when the attorney was sitting beside him? The court’s concern over the reputation of this attorney appears misplaced and indicates some of the erroneous judge-testimony in denying the first two appeals. I call it fixing the outcome. Any acts of favoritism original with the court, which have no precedent in rule or at law, and which serve the interests of one side over the interests of the other, sound like bias to me. Whether the judge was just protecting a friend, or disliked the defendant, or was making a judgment call that the defendant’s appeal was without merit, (i.e., ‘not meritorious’) still the name and professional reputation of the defendant’s former attorney was relevant to his appeal. It looks blatantly protectionist, to hide the name of the public defender because this is not normally done in other cases where ineffective assistance of counsel is the defense.

33

“http://www.legalethicsforum.com/blog/2014/09/mary-bowman-mitigating-foul-blows.html

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To an objective disinterested outsider, the implication is that the court must have found the brief to be slanderous or libelous to the former attorney, and therefore the defendant was likely lying or misrepresenting his case on appeal. To have to protect the former attorney by expunging and sealing his name, even in the face of later motions to disclose the name publicly, strongly suggests the defendant’s brief was pre-judged by the court in some aspects before it was considered for ruling on appeal.

ABUSING PUBLIC DEFENDERS On the other hand, one judge took it upon herself to start locking up public defenders who appeared in her court. On the spot in trial, five separate cases, she locked up the public defenders.34 This has been reported in California (multiple cases), also in Massachusetts, Michigan, Nevada, and Florida.35 This abuse of contempt power has resulted in a variety of judicial conduct complaints, ending with the removal or suspension of the judge from the bench. But the question of how it impacts on a defendant’s rights does not always get addressed. Appeal courts are separate from the insider courts. One looks at whether it could be a ‘mere mistake’ or ‘mistake in law’ or abuse of discretion — rather than bad faith and willful misconduct. Successful review courts have focused on whether the judge followed proper procedures for direct contempt in the presence of the judge,36 and whether there was evidence of vindictiveness, hostility, and “vulgarity” in the contempt proceeding.

REMOVING THE DEFENSE ATTORNEY — A LACK OF CONSTITUTIONAL AUTHORITY Another trick is to replace a successful public defender with a substitute counsel of the judge’s choosing, often not giving the replacement adequate time to prepare. This trick is it denies a defendant the right to effective counsel — another constitutional right, plus it begs the question of whether a judge has the authority constitutionally to remove a defendant’s counsel at trial at all? Judges have to competently apply the law — especially contempt law — where they are allowed to remove someone’s freedom and affect their constitutional rights to a fair trial. This competence is presumed in Canon 3 of the judicial rules of conduct. So a review would include (1) the judge’s justification; and (2) whether or not proper procedures were followed?37 Remember the Texas judge in the John Paul Pentry case we covered earlier? There were three do-over orders from the U.S. Supreme Court. This judge wasn’t taking any of that Supremes telling-me-what-to-do-stuff, and on the fourth trial (three do-overs) she ordered his defense counsel off the case. (Her reason was a hypothetical — (unlikely) future possible conflict of interest. Then she replaced the defense attorney with one of the original prosecutor team-attorneys to represent John Paul for the next trial. John Paul refused this replacement and asked for his old lawyer back. The judge insisted and refused/denied. She stopped a little short of saying John Paul was incompetent as a defendant, as the reason for rejecting his insistence on the attorney of his choice. If she found John Paul was incompetent, as a defendant he couldn’t be executed. In Texas, it is cruel and unusual punishment to execute a mentally deficient person. She just hinted that, and denied, denied, denied.

CHAPTER

(4.) LAURIE’S LIST

7

New Hampshire had yet still another dirty little secret — the secret list of names of law enforcement officers who prosecutors are not call to trial to testify because they have been found to be liars in internal review. The secret list is maintained by the Attorney General’s office and various police departments for almost two decades. It lists 60 or so officers with “credibility issues” who are not credible enough for trial. “The have lied under oath, committed theft or fraud

34

Cannon v. Commission on Judicial Qualifications, 14 Cal. 3d 678 (1975).

35

See Shaman, Lubet, Alfini, Judicial Conduct and Ethics, supra, at § 2:03 and 2:04.

36

Canon, supra at n. 53.

37

Id. at §2:04, ¶2 at 39.

592

§107 Protecting or Abusing the Lawyers

or other conduct that could affect their truthfulness, according to former Attorney General Peter Heed’s 2004 policy”38 But in print, it is generally claimed that there is no such list. One of the first written references was the resignation of the Weare Police Chief — who, like Stephen Thayer, was to resign instead of being prosecuted for sexual harassment of staff and other criminal misdeeds. Recently the state Supreme Court acknowledged the list, in a case brought by an officer on the list in Strafford County who complained the list hindered his ability to do his job and lacked due process. The court upheld the process and found the pre-list administrative procedures were adequate to provide Rochester Officer John Gantert due process. He regained his job, but is still on the credibility-questioned list.

(5.) THE TEXAS DEFENDER SERVICE A 200 page report by the Texas Defender Service in 2000 was prepared to analyze the integrity and reliability of the process that has sentenced 857 capital punishment cases in Texas, which made Texas the national leader in executions. It found that “Texas police and prosecutors intentionally distorted the truth-seeking process by engaging in practices that resulted in the presentation, or serious risk of presentation, of false or misleading evidence.”39 In simpler words, they cheat. 41 cases involved presenting false or misleading evidence, 43 cases “relied upon the inherently unreliable testimony of jailhouse informants, despite the obvious risk that inmates may fabricate testimony to curry favor with authorities.” The report has many stories of how innocent people were railroaded into jury convictions. Police threatened to take away witnesses children if they did not change their story to convict. One was held hostage and tortured until he signed a confession. Expert witnesses lied about fingerprints and evidence. Texas has executed more than any other state at the time of this report, despite shoddy investigations, coerced confessions, and review courts that often find egregious prosecutor abuses to be “harmless error.”

(6) MEDIATION PROCESS REPORT CARD In mediation in family court, the parties are required to fill out a ‘report card’ on the process and the particular mediator involved. I assure parties that I also am required to fill out a ‘report card’ on them, to let the judge know if they cooperated or not. Because mediation is mandatory, yet voluntary, some participants may be inclined to act less than grown up, and all the drama and antics of domestic violence and manipulative bullying spousal behaviors can show up. It’s stressful to negotiate a solution agreeable to everyone. I have found that this report card system can act as an inducement or an implied threat, to help a participant control their own behavior. I also ask the court bailiffs or sheriffs to walk through the mediation room, to remind everyone this is a serious law process. Too bad every citizen party in a case — any case — doesn’t have the ability to file a meaningful ‘report card’ on the behavior of all the professionals, including the judge, with some oversight entity.

§

107 38

http://www.unionleader.com/article/20121007/NEWS07/710079927

39

John Aloysius Farrell, Boston Globe, Report slams death penalty process in Texas, October 16, 2000/

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Chapter Seven — Tricks after Trial

108 SENTENCING TRICKS

§

International Rates of Incarceration per 100,00040 United States

698

Rwanda

492

Russia

446

Brazil

301

Australia

151

Spain

139

United Kingdom41

132

China

119

Canada

106

France

100

Austria

96

Germany

78

Denmark

61

Sweden

60

India

30

After criminal trial, a sentence is imposed. Eleven generic categories of tricks are presented here, along with multiple examples. The post-trial sentencing stage may involve both prosecutor and judge, working together or separately to further manipulate an improper and overly harsh outcome. Rarely, if ever, do these two manipulate process to cause a more lenient sentence.

CHAPTER

One federal social policy, (which appears not valid as to obtaining desired social goals desired) was to limit the power of judges to impose criminal court sentences. Previously that was done by guidelines, grids, state mandates (like ThreeStrikes laws). These are special exceptions to enhance state standardized mitigation and enhancement factors, and special extra-limits on judicial leniency. Many of these experiments have not resulted in the anticipated social goals, and as a national public policy, they backfire, making Americans the most-incarcerated citizens on the planet. It is hardly admirable that we outdistance Rwanda by almost one-third — a country not noted internationally for social fairness. I once attended a Harvard lecture by award-winning filmmaker Errol Morris, (The Fog of War) where he introduced a budding young documentarian — for her work documenting the genocide and limb-chopping justice of conscripted (abducted) young boys into the military. Since then, I had a chance to view Hotel Rwanda. Unequivocally, we are in bad company on this one.

7

Does that statistic mean Americans are the most criminal or corrupt on the civilized planet? Of course not. It means policymakers and courts have some kind of hidden incentives to lock up citizens. Briefly there are four obvious factors: (a) private corporations are making a lot of money off the prison industry; (b) the (failed) war on drugs policy of the 1980 and 90s added lots of new opportunities to incarcerate that never existed before (notwithstanding the alcohol prohibition era); (c) prosecutors are given an unparalleled power and authority that makes criminal trials unfeasible to win — therefore there are more innocent people pleading guilty probably in the history of the world; (d) judges conduct criminal trials (and court-rooms) as co-prosecutors, using the new judge-system of extreme use of personal discretion

40

Source: World Prison Brief | The Guardian June 16, 2016. Https”//www/theguardian.com/us-news-2016/jun/16/us-prisons-jail-private-healthcarecompanies-profit

41

England, Wales, Northern Ireland & Scotland

594

§108 Sentencing Tricks

to avoid the rule of law, the Constitution, Brady rights, and minimum due process at trial. It’s an institutionally stacked deck, hard for anyone, innocent or not, to survive. Not on the list, but probably a factor, is (e) the increased militarization and authoritative nature of American political power that has many common elements to the German build-up of national military power in the 1930s in Europe. That is beyond the scope of this book, so I mention it in passing because it is part of the big picture of how justice is decided and punished in American courts. It goes directly to the un-availability of appeal, error-correction, and the lack of leniency and clemency by judges and national leaders. The classic human elements of justice are all missing. America is in a harsh sentencing policy period, and prison occupancy is at an all-time high in the history of the country and the history of the world.42 Historically, America has been through periods of both harsh and more humane sentencing policies periods. The U.S. has about 5% of the worlds’ population, but 25% of the world’s prisoners. The U.S. leads the world in the number of its citizens locked behind bars. We incarcerate 716 people for each 100,000, with 2.3 million current prisoners, at a cost of $24,000 to $48,000 or more, each, per year.43 In America, incarceration is a $48.5 billion dollar annual business,44 (not counting new construction, which almost equals operations costs). The prison industry is privatizing every aspect — from construction, housing, operations, feeding, visitation, phone and video contact with families, and even probation. The trend is increasingly to isolate prisoners and charge them for everything, including housing, food, visits, calls, and education. This is big business in America.

“Question: The goals of criminal punishment include retribution (giving people what they deserve); deterrence (discouraging future crimes); and rehabilitation (improving behavior). Should one of these purposes be emphasized more?”45 Author’s note: Where does and where should LWOP46 fit into this national goal?

SENTENCING TRICK 1: GROSSLY DISPROPORTIONAL SENTENCING Grossly disproportional sentencing is unconstitutional When the factors are at stake in the judge’s sentencing or ruling behavior are other than those in law, judges can retaliate and act disproportionately in ordering punitive punishments or overly harsh orders for those that the judge perceives to be ‘state enemies’ who challenge legal or bureaucratic systems. This goes to the winner-take-all trick in the financial chapter, where state statutes and public policy require equitable distribution (or community property 50/50 division) but the individual trial judge arranges the evidence and circumstances (the building blocks) to avoid the state mandate. Sometimes, they give with one hand, and take back with another. My case involved “offsets” for my expenses before and during divorce, and devaluation of assets taken. Other times, the Bonser contempt-fine offset is used to avoid public policy and legislative mandates. Or the probate and trust handling, where assets are routinely depleted by indiscriminate and unregulated attorney fees and attorney self-dealing. The outcomes in these cases defy practical 42

Reporting published by NYU-Brennan Center for Justice, Criminal Justice Debt: A Barrier to Reentry,” and ACLU In for a Penny: The Rise of America’s New Debtors’ Prisons, as reported by Nadia Prupis, in Truthout, October 6, 2010, documenting debtor prisons in 13 of the 15 states with the largest prison populations, including California, Arizona, Michigan and Alabama.

43

U.S. Bureau of Justice Statistics, 2014.

44

States in 2010 spent from $24,000 to $48,000 or more per prisoner. Statistics and numbers from the U.S. Bureau of Justice Statistics, http://www.bjs. gov/index.cfm?ty=pbdetail&iid=4556

45

From a masters degree paper in criminal justice, written by Pamela Smart, Bedford Hills Correction Facility, Bedford Hill, New York.

46

LWOP is life sentence in prison without possibility of parole.

595

§

108

Chapter Seven — Tricks after Trial

common sense, yet the judges over and over arrange for transfer of the assets to insiders — lopsided cases where the judge handling and discretionary decisions evade correction on appeal. Removal of children from parental custody and termination of parental rights are other areas where the ‘sentence’ is disproportionately severe in relation to the allegation. Any case where the power of the judge is disproportionately dispensed and strong personal feelings to unfairly punish those before the judge. These people are often at the opposite end of the social, economic and political spectrum from the judge’s view of how society is to function. For example, if the judge believes the defendant or party doesn’t demonstrate enough respect or acceptance of his authority, he may issue orders which are primarily designed to teach the defendant ‘respect’ for the court’s power. That is too often done, but is not a proper function of the court process. It puts dispensing justice secondary to the judge’s own ego. I see this pattern categorically in Patriot cases, Constitutional-rights cases, and states-rights cases. The types of cases where variations in sentencing regularly occur fall into two categories of special sentencing treatment:

A. Cases where this prosecutorial/law enforcement prejudice routinely occurs, by classification. Look for especially harsh sentencing outcomes by judges in these categories: 1. Non-custodial parent in termination of parental rights. One parent is neglectful, but there is no charge or finding of abuse or neglect by the other parent 2. Patriots, gun-owners, gun and Second Amendment groups and others arguing Constitutional rights 3. Home schooled families with children 4. Religious groups, especially fundamentalist or non-Christian 5. Where race is a factor, expecially non-white race of a defendant 6. Especially if a crime victim is white, (for example, black male defendant and white female victim) 7. Low socio-economic, poor 8. Female gender 9. Drugs 10. Mental illness 11. Very wealthy minority

B. Cases where leniency in judge sentencing is routinely practiced (largely based on class): 1. Judges, prosecutors, law enforcement 2. Court insiders, (lawyers, judges and their families) 3. White collar corporate leaders, CEOs and top ranking officers and shareholders. 4. Corporations, especially large multi-national and global (insider dealing, securities fraud, and other corporate misdealing where individual actions are clocked and difficult to discern, unless they are ethnic) 5. Hollywood types, national royalty and celebrities 6. Politicians (most, but not all) liberal over conservative, established party over ‘independent’ parties, progressive over conservative, everyone else over religious fundamentalist.

CHAPTER

7. Sometimes, the very wealthy, although they tend to be able to avoid the court legal process at early stage. Very wealthy but minority may also be excluded.

7

SENTENCING TRICK 2: COERCING DISPOSITION — A JUDGE/ PROSECUTOR TRICK This can cover three different types of pressure to end a case unfairly: 1. Guilty pleas by criminal defendants through fear or intimidation. 2. Settlement of a civil case by intimidation or coercion. 3. Coercing a party to drop a case, particularly a criminal charge.47 47

Model Code Rule 2.6(B).

596

§108 Sentencing Tricks

Every party has a right to be heard in court according to the law,48 so tricks to close cases without allowing a fair trial process have been found to be an abuse of judicial office. This includes when a judge refuses to try a case; or if a judge dismisses a case after unsuccessfully trying to get a party to drop charges. Whenever a judge refuses to move ahead. I haven’t seen a case that just delays the trial for years, but that might be covered by abuse of office. Other judge tricks are to strongly pressure parties to settle civil suits. Some judges have threatened to file attorney conduct complaints, or otherwise retaliate against parties, including insurance companies, who have declined to settle. One judge threatened to “keep book” on a company that he felt was not acting “in good faith” to settle at the value he felt was fair. In a civil case, one judge just refused, on the morning of a full day trial, to hold a trial. Get out of here, she said to the parties in chambers, I don’t care what you do. You’re not getting a trial.49 Judges may not agree to dismiss charges if a wrongfully jailed defendant agrees not to press charges.50 This is has the same flavor as parental neglect cases, where the state consent form incorporates a waiver of the right to sue for wrongful taking of a child. The non-abuser parent is regularly denied custody of an abused child if they do not sign the form.

SENTENCING TRICK 3: CREATIVE CRIMINAL FINES What’s in your wallet? I’ve seen a judge do this for setting bail. What the heck — that’s how they took my 35¢ from the ashtray. But a judge in a criminal sentencing case who set the fine at the amount in the defendant’s billfold, later received a sanction.51 Sometimes the judge fines those who are innocent — this will be in the form of court fees, or constable fees, or other costs. Some judges have taken money in one court to pay the fine in a different court; or offered to let defendants avoid court appearances by just paying double the statutory fine.52 Others have waived fines in exchange for donations to the prosecutor’s favorite charity.53 Some judges try to get their friends and relatives cases assigned specifically to their courtrooms, and to avoid neutral assignment of cases in the court system. The legal charge for this manipulation is interfering with case rotation.54

HALF-OFF SALE Judge Gonzalez triggered a charge of misuse of power when he conducted a “bargain day” in sentencing for all defendants that plead guilty that day would get half-off their sentences.55 Each case has to be decided on its own individual merits, found the State supreme court, and this could be construed as coercing guilty pleas.

48

Model Code, Canon 3B(7); Model Code, Rule 2.6(A).

49

Judge Theresa Baca, Bernalillo N.M. District Court,

§

50 See In re Gonzalez, 33 Cal.3d at 375, 657 P.2d at 381 51

In re Daniels, 340 So.2d 301.

52

In re DeFoor, 494 So.2d 1121 (1986).

53

Public warning of McDougal (Tx. Comm’n on Judicial Conduct, 1999)

54

Mississippi Comm’n on Judicial Performance v. Chinn, 611 So.2d 849 (1992).

108

55 Id.

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Chapter Seven — Tricks after Trial

SENTENCING TRICK 4: DEBTOR’S PRISON UNABLE TO AFFORD A TRAFFIC FINE There are several variations on the practice of judges assessing speeding and other traffic violation fines which they are unable to pay. Good Judge In Alabama — Justice Hub Harrington issued a preliminary injunction in a class action suit, where one court was binding over defendants who couldn’t pay to a private probation company. He ordered the release from incarceration of all such prisoners in Harpersville Municipal Court with the orders that they each be given 30 days to pay without further fines or fees. Judge Harrington said he was appalled at the town-scheme that imposed even more fees for jail when defendants couldn’t pay on the spot. He called it “a judicially sanctioned extortion racket.”56 This kind of fines/jail charges are a rising trend in unconstitutional practices of states and towns in financial crunches looking for new ways to wrest additional court revenues from defendants.57 New Orleans, for example, raises two-thirds of its criminal court’s operating budgets from criminal defendants. The studies cover 15 states, and found overly harsh penalties on the poor — such as suspending driving privileges for missing court-debt payments, not being able to vote in elections, and imprisoning people for years because they cannot pay for court costs, including costs of public defenders (under the constitution, this is free under the 6th Amendment Right to Counsel.) Florida, North Carolina and Virginia try to circumvent the Constitutional right by calling it “Public Defender Fees. There is no waiver available. So defendants sometimes waive their right to counsel — in order to avoid the attorney fees. A survey in Michigan by the National Legal Aid and Defender Association found that misdemeanor defendants routinely waive counsel because of the fees, resulting in a 95% increase in one county alone. In Virginia, the cost per count, of free counsel is $1,235 for some felonies. Some Truthout reporting58 examples from the same two reports include: Five times jailing a 25 year old mother who did community service to pay her fine, but did it in a non-profit organization not on the list (Kawana Young); A man arrested for begging, who plead guilty and had to pay an immediate fine of $200 or 20 days in jail. He has epilepsy, schizophrenia and bipolar disorders. Since he was arrested for begging, he didn’t have the money to pay. (Percy Dear) A homeless man who stole $39 in food from a grocer store. He was fined $339 in fees and spent 189 days in jail. It cost the city $3,500. (Gregory White) A Georgia resident was past due on a $705 fine, and was jailed eight months. (Ora Lee Hurley) Georgia resident on probation had his probation revoked and he went back to prison for two years because he could not afford to pay $550 in fees.59 (Danny Bearden) His case appeal found that imprisoning probationers was unconstitutional.

CHAPTER

TIME TO PAY DOCKET

7

In Wichita Kansas, lawyers of former 7,351 former prisoners filed a class action lawsuit against the municipality over what judges there called ‘the time-to-pay docket,’ where people with outstanding fines were called to court and ordered to pay on the spot or go to jail. The total illegal lockup time was 148,537 days over three years. Judges never held a

56

Ethan Bronner, Judge in Alabama Halts Private Probation, NYTimes, July 13, 2012.

57

From two reports published by NYU-Brennan Center for Justice (Criminal Justice Debt: A Barrier to Reentry,” and ACLU (“In for a Penny: The Rise of America’s New Debtors’ Prisons”, as reported by Nadia Prupis, in Truthout, October 6, 2010, documenting debtor prisons in 13 of the 15 states with the largest prison populations, including California, Arizona, Michigan and Alabama.

58

Truthout is a very good on-line watchdog reporting group. They also offer political opinions, so as ever, do your own follow-up and thinking. http:// www.truth-out.org/

59

Bearden v. Georgia, 461 U.S. 660 (1983).

598

§108 Sentencing Tricks

hearing to determine if any could pay. In June 1998, one good but unnamed judge found the practice abhorrent and released 70 prisoners in one day, and the State Supreme Court found that he acted beyond his judicial authority. The class action was settled with the city foregoing all the court debts (about $3.5 million or more), plus the plaintiffs got $2.7 million, the attorneys got $1 million.60 Distribution of the payout was by the length of time each defendant was jailed. On the issue of failure to make restitution payments, several state courts have found that imprisonment/revocation of probation is unreasonable if the judge at the trial court did not make inquiry as to the reason for non-payment, inability, and whether it was willful or not. Notwithstanding the Constitution, it appears states are simply focused on increasing revenues in tight times, and increasingly are acting openly and improperly to fine and incarcerate poor defendants who cannot afford to pay. The Brennan Center advocates “elimination of public defender fees, implementing community service programs that build job skills,” while the ACLU “recommends a [comprehensive ] judicial assessment of a convicted defendant’s ability to pay fines.”61

SENTENCING TRICK FIVE: RUBBER-STAMPING VERDICTS (BY A JUDGE WHO LIES) A New Mexico metro judge has had years of reprimands beginning when he was on vacation in Las Vegas and wouldn’t get back in time to rule on 100 pleas arranged by the prosecutor. He called his court secretary in Albuquerque and told her to use his rubber-stamp signature to sign off on the 100 plea deals. Two years later, Judge J. Wayne Griego was tried again in the judicial standards committee for 18 different charges that he fixed traffic tickets for “family, friends, close personal colleagues, court staff members and court staff families” He appeared to have the go-to reputation at Metro Court for influencing traffic cases. The Commission heard from 26 witnesses and found misconduct in 14 of the 19 counts, and they found that he was “not completely forthcoming in his testimony” and that he “blamed court staff” for his transgressions and was “not deemed credible.”62 [When it comes to Insiders, they just hate saying the word lie — telling a knowing intentional untruth as evidence in court. So we see dozens of evasive variations. I guess if you rack in $300/hour for your mental impressions, you should use fancy-schmancy words?] Judge Griego was suspended 90-days without pay, and had to pay $12,000 for his cost of prosecution, and write 1,000 times “I will not lie to the judicial conduct committee.” That last one I made up. He had to write out his policy about conflict of interest and supervising his staff. Really? That’s it? Did they recall those traffic cases he fixed for his friends? Nope. Did they take his license to practice law? Nope. Did they put him back on the bench? Yep. Why was he not charged criminally? Why was this in-house discipline? It sounds like what the Cardinals did for years with the Roman Catholic priests accused of sex crimes. When you get sworn in as a judge, do they hand you the Monopoly get-out-of-jail-free card, too? How many free-cards does each Judge get?

SENTENCING TRICK 6: LENIENT ON RAPE One judge ordered a man guilty of rape to write 5,000 times, Boys do not hit girls. Montana District Judge G. Todd Baughs has a repeated history of leniency when it comes to rape and battering children and young women. When a 14 year old student was raped, he sentenced the teacher-rapist down from 20 years to 30 days because the judge said the student ‘looked older that her chronological age.” The student subsequently committed suicide. For Pacer Ferguson, who broke his girlfriend’s face in three places, Judge Baugh ordered the writing, plus 6

60

Reported in J.A.I.L. NewsJournal, May 17, 2007, as reported by the Associated Press, Wichita Settles Lawsuit vs. Judges. Online at http://news.findlaw. com/ap_stories/other/1110/5-9-2002/2002509`020934811_5-7.html

61

Supra, Truthout at n. 23.

62

Scott Sandlin, Metro Judge May Face Suspension, Albuquerque Journal, (2008).

599

§

108

Chapter Seven — Tricks after Trial

months jail time for misdemeanor assault, and he ordered young Ferguson to pay the victim’s medical bills.63 Judge Baughs, in his sixth 6-year term as a judge, when brought up on conduct complaints over his handling of rape sentences, argued that his comments may have been inappropriate, but the sentencing was not. He said he would ‘accept’ a public reprimand. Leniency in rape sentencing occurs all over the country. The judges who do it, (and the judges who review them) almost never identify it as institutional gender bias. They are simply blind to the self-analysis required of judges to see what they are doing is wrong because of latent personal bias that devalues females, by making promale projections.

WHAT IS WORSE IS THIS SAME GENDER BIAS EXISTS IN SENTENCING FOR MURDER OF A WIFE. I’m pretty shocked at the State of Maryland that has a gender pattern in judging that is almost Neanderthal — that seems to run across the spectrum of criminal to marital and family law. Where is Maryland getting these guys? Like Judge Robert E. Cahill, who sentenced Mr. Peacock to a 3-year sentence with 1.5 years suspended and a recommendation of immediate work release — for the premeditated cold-blooded murder of his wife, Sandra Peacock. She was having an adulterous affair, and a couple hours after he found out, he murdered her. Hours later! This didn’t even qualify as a heatof-passion crime. This was 1994 — not 1694! At sentencing Judge Cahill seemed to have internalized the defendant’s problem. Cahill said the following: To be betrayed in your personal life when you are out working to support the spouse under the heightened circumstances of this case are almost unmanageable. I seriously wonder how many married men…would have the strength to walk away…without inflicting some corporal punishment, whatever that punishment might be.” I shudder to think what I would do. He called the husband a ‘non-criminal’ multiple times. He apologized for having to sentence the husband at all. Okay, we get it. Judge Cahill though cheating on a spouse deserves death. Apparently ol’ Bob here missed the memo. Does anyone else recognize the Sharia-based code of law in operation here? That’s why as citizens, we should be unequivocal that we are sticking with good ol’ Constitutionally-based, Bill of Rights, Declaration of Independence style of American law. Anything else requires a Constitutional Amendment.

SO, WIVES DON’T HAVE MUCH VALUE IN MARYLAND. WHAT ABOUT YOUNG FEMALE EMPLOYEES? A year earlier, another Maryland judge gave probation only — to a male employer who at a party at his home, served enough alcohol for his18-year old employee to pass out in the bathroom. Lawrence Gillette claimed someone else put the unconscious employee onto his bed. So he felt entitled to rape her. At trial, Judge Thomas Bollinger offered —

CHAPTER

so you found yourself “in the dream of a lot of males”

Judge Bollinger sounds like a brother caveman. He sentenced Gillette to the minimum and probation only. Caveman Bollinger, after his judicial disability ethics hearing, was issued a reprimand — watch the wording here: [Bollinger’s] His statements were “so improvidently phrased as to create a general impression that he was … insensitive to women’s rights and the obligation of the judicial system to afford women the protection of the law by punishing men who commit sexual offenses against them.”64

7 63

Rebecca Leber, Judge who once called rape victim ‘in control’ sentences abusive boyfriend to write, December 25, 2013, ThinkProgress (online).

64

Id.

600

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Huh? Say again? Again, in disciplining their own, they use that high-falutin’ judge-word “improvident.” Judges love that word because they don’t have to say what is “provident” or not about Bollinger dereliction of duty and unconstitutional gender bias. The word improvident means not sensible, which is so gross an understatement that it appears the judicial disability committee missed the problem here. Bollinger aka Mr. Sensitivity also missed entirely his own sanction and claimed he “had been exonerated by the Committee on Judicial Disability of any misconduct.” 65

THE IMPACT OF THE INTERNET After the lenient sentencing in the California rape case of a drunken young woman, a petition went viral to remove the judge. I suspect because it happened at a Stanford frat house, and because the sentence was during graduation time, over 100,000 signatures were collected quickly and turned into the Judicial Council Conduct Board to remove Judge Aaron Persky. CNN reported another petition to remove the judge had over a million signatures. Does this kind of public outcry work? Should it be the criteria for whether or not a judge is removed? Is it bad judicial behavior? In a letter of support submitted to the court on behalf of the victim, Ms. Dauber, (an agent of the victim) said that a recent university survey found that 48 % of senior female undergraduates said they had experienced nonconsensual sexual assault or misconduct prior to graduation. Ms. Dauber is friends with the victim and said she is helping her to obtain a book contract. Compare this with the transvestite sentencing in Judge Maria Lopez matter in Boston, where prosecutors removed the judge for similar charges of leniency in sentencing as judicial misconduct. That analysis should have revolved around — did the judge act within the confines of sentencing law? That is the standard. So this 1.1 million online mob-shaming petition to the judicial conduct committee has nothing to do with the law, or legal standards, or ethical standards. Shaming implies morality, but this is not a real morality or act of conscience. It is mob-shaming, And it works as a political campaign, but not as justice in a court of law. Law is not a beauty pageant or a reality show or a popularity contest. Rape Estimates Stanford petitioners estimated 48% of coeds would be raped while at their college. My personal estimates are much higher, including law school rape. My rapist, a law school classmate, ended up years later in prison for similar personal injury crimes against yet another law school classmate. My professional estimate is that probably 90% or more of coeds experience rape at college. Because college administrators don’t acknowledge and deal with it. And society doesn’t acknowledge and deal with it. So the question in court, and about the 1.1 million online signatures to remove this judge — represents a national outcry. For the Stanford athlete this case, the victim had four shots of whiskey with her mother at home at dinner before she departed for the frat party, where she consumed much more. So was alcohol a factor? Obviously. For both the victim and the perp. Social media isn’t concerned with comparative fault. This is a blowup of a longsimmering overdue national moral crisis. It is a heated civil rights issue. Are all women, awake or comatose, merely sexual containers? So, as Americans, where do we go to make change? I hope the young Stanford rape victim runs for office or maybe her ‘agent’, Ms. Dauber, who seems to be politically savvy. My logical analysis clearly is in the minority here — the California legislature is not the focus of this long-simmering national crisis in morality, deterrent and punishment of rape. But it should be. The internet is a new tool for social reform, and it’s fast-response unfocused targeting represents a voice for small individual people that I suspect could be a forever game changer for policy and law makers — in and out of court.

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Id. The Women’s Law Center, 305 West Chesapeake Avenue, Towson, MD 21204.

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SENTENCING TRICK 7: DEFENDANT DISABILITIES IN SENTENCING ONE OF THE GREATEST THINGS ABOUT AMERICA IS THE PREMISE OF OUR EQUALITY I also think compassion is an integral part of justice, although I find it is mostly missing in court. There are exceptions, and I try to note them when I find compassion or other moral virtues in court. Remember the Las Cruses district court judge? He was elected chief of his division and I witnessed an extraordinary respect for all parties in his in-court handling, including criminal defendants. Trouble is, there are classes of our society that need ‘extra’ help in law — because of inherent disabilities.66 To have equality in process, they need some help. It is easy to abuse and take advantage of several classes of disabled people in court. They are out-of-their element, in a foreign country so to speak, that is pre-conditioned to take advantage of defendants. Part of the mark of a civilized society is to provide that extra — compassion or assistance — to insure practical access to their equality under the law.

7-A. LOWER MENTAL CAPACITY Several states have laws that prevent the death sentence being imposed or carried out on people with low mental functioning. One case, the trial judge ruled on remand after appeal, that the defendant was not mentally impaired (therefore able to be executed), but at the same hearing, the she disqualified his 25 year attorney and refused to let the prisoner have his counsel of choice. The bizarre reasoning probably relates to the fact the case has been remanded back to the Texas judge twice already, and the judge wanted to stack the players for the third remand (by the U.S. Supreme Court) back for new trial in her court. See Chapter on appeals. 60 mentally ill and retarded people already have been executed; approximately 283,000 people (5 to 10%) of prisoners were mentally ill in 1984,67 but since the national change in in-patient mental-illness treatment policies in 1987, that percentage has risen to at least 16%.68 [Some say much much more.] Of people diagnosed with serious mental illness, 40% have spent some time in prison.

7-B. PRISONS ARE MODERN MENTAL HOSPITALS “There are now more than three times more seriously mentally ill persons in jails and prison than in hospitals.”69 Arizona and Nevada have ten times the number of seriously mentally ill people in prison than in hospitals; North Dakota is roughly 50-50.

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“In historical perspective, we have returned to the early nineteenth century, when mentally ill persons filled our jails and prisons. At that time, a reform movement, sparked by Dorothea Dix, led to a more humane treatment of mentally ill persons. For over a hundred years, mentally ill individuals were treated in hospitals. We have now returned to the conditions of the 1840s by putting large numbers of mentally ill persons back into jails and prisons.”

7

To put this in perspective, remember Mrs. Packard, whose husband was the Reverend Theophilus Packard? He had his wife committed for years for religious hearsay and not obeying him? She wanted to be a Methodist — and I can’t blame her. Hands down, the Methodist have the best potluck dinners anywhere. (My mother was a Methodist, so as a child, I had a double dose — Methodist day camp in the summer, and Catholic catechism class every Saturday.) Mrs. Packard worked for reform for the mentally ill. That was the mid-1800s. Now, we are slightly less than that stage of social evolution — we commit mentally ill into prisons, not hospitals. The only current evolution is that 66

New training on justice for persons with non-apparent disabilities in court proceedings, see the John Jay College of Criminal Justice ADA advocate certification program. www.equalaccessadvocates.com

67

U.S. Department of Justice Statistics, quoted at http://www.deathpenalty.org/article.php?id=53

68 “More Mentally Ill Persons are in Jails or Prisons than Hospitals: A survey of the States, by the Treatment Advocacy Center, May 2010. See online study at http://www.treatmentadvocacycenter.org/storage/documents/final_jails_v_hospitals_study.pdf 69 Id.

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now the U.S. Supreme Court has finally ordered states cannot execute them. Isn’t it time to deal with humane commitment of adults — yes involuntarily — to mental hospitals, and not prisons?

The mass shooting phenomenon Although murder per se is way down (the 2014 rate is approximately the same murder rate in 1962),70 social scientist and policy-wonks have not yet come to consensus about the phenomenon of mass shooting occurring across America. My way of analyzing this kind of social problem is to try to get a bird’s eye view. This book has identified several of the variables already. 1. Mental illness — lack of commitment capacity by families to put an ill and dangerous adult into a safe mental facility on an involuntary basis to protect society 2. Media sensationalizing and the desire for instant fame — that probably plays into the mental dysfunction of wanting to be recognized as someone special — quickly (Narcissism?) 3. Social network and media bullying, especially in teens and young adults causes great pain of social rejection that exponentially increases the harm of bullying. Although evil, criminal laws have not caught up with this exploded nature of social bullying and violence by internet 4. The transitory/disconnect factor — physical mobility around the country, which adds to the social isolation of mentally ill and socially excluded people. 5. Three generations of war/military ops mentality creating a whole class of disenfranchised men with mental images of Rambo-style revenge, enhanced by television, movies, and social media. 6. The pharmaceutical drug factor. What percentage of these shooters are taking these dangerous psychotropic and other drugs? The information available seems to be insider-generated to protect this enormous and powerful profit industry. What I do not believe is that this problem fits into narrow political group thinking that tries to fit the problem into convenient political holes — like shoving a round peg into a square “gun” hole, for example. Treatment of mental illness is not fundamentally a Second Amendment problem, and political solutions that are narrowly focused to prove a political agenda may miss the causes and solutions for this American social epidemic. My solutions for being able to take social rejection and turn it into a “purposeful losing opportunity” would of course begin with children’s church summer camp and Saturday religion class.71 There are countries where every citizen is required to be armed, shoot and incarceration statistics show they are not experiencing this mass shooting phenomenon. The acting-out against school children is particularly disturbing. The component of dissociation with the rest of society by mentally ill is not being addressed effectively by policy makers. Meanwhile, policy directs hundreds of billions of dollars in federal funding into new private prison construction each year. Privatization translates into profiteering. Why are we privatizing social services to make money off the most needy and dependent part of our population? It seems medieval or at least back to the earliest time of our country — shameful treatment whether for prisoners or mentally ill. Why not direct that those new prison construction spending into humane rehabilitation and mental health facilities? “It took America 160 years to incarcerate its first million people, but just twelve years to incarcerate the second million.” Justice Policy Institute72

70

A Harvard/Northeastern study released in 2014, reported at Mother Jones, Amy P. Cohen, Deborah Azrael, and Matthew Miller “Rate of Mass Shootings Has Tripled Since 2011, Harvard Research Shows And Why claims in the media that mass shootings aren’t increasing are wrong.” Oct. 15, 2014

71

There’s an apparently optimistic organization in Green Bay Wisconsin that loves Vince Lombardi and is teaching commoners how to transform the politically homeless in American politics by running for office. Any office. Any party. They coined this phrase and advocate ‘when you lose, lose with purpose.’ They also seem to operate with a lot of grassroots potluck dinners. Blue Jean Nation, online at http://www.bluejeannation.com/the-art-oflosing -purposefully/

72

From NoNewPrisons.org

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Deinstitutionalization, the emptying of state mental hospitals, has been another of those well-meaning but poorly planned baby-boomer social changes in the United States. It was an outgrowth of (1) overcrowding and deterioration in mental health hospitals, (2) new medications that significantly improved the symptoms of about half of patients, (3) and a failure to understand that many of the sickest patients were not able to make informed decisions about their own need for medication.73 I remember the day that the new mental illness treatment policy went into effect nationally. I remember because it was 1987, and I was studying for the bar. All of a sudden, there were homeless people everywhere. They would line up at a church in downtown Concord, New Hampshire for a free meal. They ate meals at the church and then walked three blocks back up Pleasant Street hill to the state mental hospital day-care (across from what previously was the State Bar mansion.) They had been suddenly released (under the new national policy) en mass from the State hospital. They were allowed day-care at the old state hospital, but had to get free meals from the church, so the parade of people went on back and forth for three blocks. As these formerly state cared-for-adults tried to figure out what to do with their new ‘freedom,’ they regularly got picked up and locked up as a new class of criminal. That national social policy change was another mistake. It’s time to re-think and act on mental illness treatment policy in America, and stop using prisons as de facto involuntary lock-up mental hospitals.

7-C. SENTENCING JUVENILES AS AN ADULT The twelve year old that killed his grandparents under extenuating circumstances, was tried as an adult, convicted and sentenced to 30 years without possibility of parole (the shortest possible sentence in South Carolina.) The U.S. Supreme Court wrestled with the question of whether, for children, along sentence without possibility of parole is unconstitutional and found it was not.74 It took the Supremes a long time to decide juveniles couldn’t be executed. But they still have not looked at the propriety of sentencing a child for life. That’s about 2,500 people — most are former juveniles still incarcerated.

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In Pittman’s case, this young child may have been given an illegitimate punishment to cover over the effects of the drugs he was taking over a long-period of time (drugs that statistically cause psychotic breaks in a known percentage of users.) If the so-called scientific industry-research is tainted with self-interest, and the industry manipulates the evidence to protect their enormous financial interest. That means Chris, a child without family, had no way of asserting his rights to get a fair trial. If the judge failed to act to protect the due-process interests to a fair trial, (and the selection of forum indicates the possibility of a prosecutorial favoritism in Chris’s case) then Chris’s trial process and verdict, not to mention his 30 year sentencing without possibility of parole — would also be fatally tainted. So what protection is available for a 12 year old, who murders the people he loves most in the world, while on a prescription drug that is known to sometimes cause psychotic breaks in adults, and is NOT prescribed for children? Who helps the shooters, (the children) in our current legal/corporate/mental health justice system?

7

Mercy and rehabilitation. Some parole boards are allowing these child-criminals to go home after 20 or 30 years. In 2012, the Supreme Court in Miller v. Alabama found that a mandatory life sentence for a juvenile is unconstitutional, but it did not specifically apply the ruling retroactively, and states are splitting on whether or not it is. Sentencing judges must have discretion to consider mercy, said the Supreme Court. The cases are being considered for sentencing, and it is time for the country to reconsider “the idea, abandoned a generation ago — that criminals can be rehabilitated.” And that “some people, based on their capacity to mature and change, deserve a second chance.”75 Some of the convicted were accessories, drivers, or bystanders to the crime — young people caught in their association with the actual perpetrators, but not acting themselves. For anyone who has parented a teen, their stories are tragic.

73 Id. 74

The case of Christopher Pittman was reported earlier.

75

The Slate group, The law, lawyers and the court, “Where do you think that Rage Came From”, June 11, 2014 online, reporting on the Joe Donovan Project.

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Each of the releases seems to entail a prison program of re-entry, including GED, steady work in prison, behavior modification prison programs, a year of minimum security prison. Judges, parole boards, prosecutors and prison systems are highly resistant, and have other financial incentives to keep these people in prison.

7-D. LOWER SOCIAL STANDING My concern is the external appearances — law professionals are categorically a different class than the people they serve. The hourly billing system developed and promoted by the unified bar incorporates not only the mentality of disparate social and economic worth — but the economic reality of providing insiders with an income and payments —far removed from practical social worth of the product produced in court (if any.) Removed also from the relative social value of what attorneys and judges do for people.76 There has developed a mind-set of entitlement and elitism (or maybe elitists are drawn to the profession), where judicial decisions include this unspoken disproportionate and invalid value trait, which the legal system works hard to maintain but not mention.

SENTENCING TRICK 8. HATE, THOUGHT, AND OBSTRUCTION CRIMES The advent of hate crimes, which now automatically enhance criminal sentences up to death — is punishment based on the defendant’s motivation. It is a foray into enhancing sentences up to the death, based on what people think when they commit a crime. It was a response to several heinous crimes, including the death of James Byrd in Jasper Texas, who was black who died being dragged to death behind a truck driven by three white men. There were a couple of homosexual murders, and a novel written by Annie Proulx, memorialized in the movie Brokeback Mountain that also inflamed lawmakers, who moved to make a strong politically correct statement about homosexuality by passing enhancement laws. Homosexual activity for centuries was a death-penalty crime that was decriminalized in the 1980s and ’90s. So legislators moved to enhance criminal penalties based on the defendant’s mental biases — hate crimes. Now the social pendulum has swung the other extreme — those who didn’t get the memo on homosexual full-acceptance, are being targeted for court-harassment and criminal process, based on what’s in their thinking. The City of Houston has issued subpoenas demanding a group of pastors turn over any sermons dealing with homosexuality, gender identity or Annise Parker, the city’s first openly lesbian mayor, under penalty of contempt of court. Houston has a new group of “crimes” under an anti-discrimination ordinance that make restrooms nongender specific, which was approved by the city council. A petition of 50,000 names to change the law followed, which the city council invalided for “irregularities.” None of the pastors receiving sermon-subpoenas were parties in the resulting lawsuit, and the new Mayor declined to say why she was collecting the sermons, but the pastors were each in a Coalition of about 400 pastors. Senior Pastor of Grace Community Church Steve Riggle was ordered to produce all speeches and sermons.77

WHAT’S IN THEIR THINKING That’s an awkward-sounding phrase, but I used it intentionally. It reflects awkward thinking — like reasoning with a potential for “infinite expansion.” Under logical reasoning, a punishment with potential for infinite expansion would be illegitimate under the 8th and 14th Amendments. This kind of lawmaking tries to establish a harsher sentence (of death) for what a person thinks or believes — than for what the person does. (The crime of murder in this case receives LWOP as a sentence.)78 Murder is murder, and I see no rational reason to sentence some murder differently than other murder. Those three men murdered James Byrd and deserve life in prison. 76

The Rand Institute for Civil Justice contemplated calculating the costs of current judge practices under rules, but concluded that the research would be “virtually meaningless” because of the inability to assign validity to the variables — and empirical research required too much speculation.

77

Todd Starnes, author, God Less American, and host Fox News & Commentary radio/newsletter, and Family Research Council, “What Role Should Religion Play in Politics?”, October 15, 2014.

78

Thanks to James Geibel for the idea in his column “From Where I Sit, Laws on hate crimes threaten freedom,” The Oakwood Register, date unknown.

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THOUGHT CRIME A defendant’s hatred or racial bias or any other kind of internal mental thinking, as heinous as it is, is the wrong category of act for punishment. It is not a proper standard to increase their sentence up to death. In logic, this kind of mixing apples and oranges results in illogical outcomes. It can be visualized by drawing pictures — called Venn diagrams, which are used to clarify even linguistics. Crimes are one circle. Thought is another circle. Seeing if we as a free society want to overlap them — and start punishing thought, it begets punishment for thought alone — and demonstrates the fallacy of this policy. It is important not to just mush ideas together, as a response to political agendas and social changes. Thought crimes generally fall onto that other mushy area of thinking — obstruction crimes — thinking as opposed to acting. Or planning, but without action. One time in our history, Americans established that some thought can be punishable by death — but it was over the issue of spying, plotting and treason. Each time we have gone to war, (WWI and WWII) government officials have wrestled with the idea of locking up those that criticize their war policy. In WWI, Woodrow Wilson launched a broad campaign (and the Espionage Act of 1917) to criminalize those who opposed his policy — sometimes even for trivial acts of dissent. This included people who signed petitions or passed out leaflets urging men not to sign up for the draft.79 Holmes and the Supreme Court wrestled with making free speech and thought into criminal acts. Current social movements have progressed from urging a social position — to trying to force “politically correct” thinking into law, then using criminal law and/or contempt of court as an enforcement mechanism for the new ‘thought’ crime violations. The U.S. Supreme Court abandoned the first Free Speech case urged by the President, and Justice Holmes ended up sometimes on both sides of the argument in later cases. We have seen other Presidents who want to control dissent — President Nixon was so vexed with the Vietnam War protestors outside his office that he authorized a series of illegal secret response teams to arrest protestors and turn his critics into criminals. Many presidents since Eisenhower have struggled with how to control citizen criticism of war or other dissention. They authorized various illegal practices. Whether it is socialists, communist, American students, or Muslims, the power of the Presidency seems to demand that judges find that American dissenters get criminalized. While the McCarthy era used psychological terror of a Congressional investigation against so called “reds’ to marginalize communist supporters in our society, most of the other political attacks have attempted to use the criminal justice system and the courts to silence critics, to frighten off contrarian thinkers, and to punish and imprison anti-war dissidents. As a professional dyed-in-the-wool contrarian thinker, I take umbrage at this as a legal mandate/development that makes thinking a violation of thought-crime-law.

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The courts and the federal government struggled with the thought-as-a-crime argument after WWII during in the Cold War era. Do we kill or lock people up (or just arrest or merely harass people) for what they think? How about for what they value? For their minority political ideas? For their lack of political correctness? But what about the American way? The First Amendment? Are our social and national ‘leaders’ now so fragile and intolerant that they cannot allow traditional criticism and free speech?

7

It was eventually determined in a series of cases either authored or dropped or dissented to by Justice Oliver Wendell Holmes, that the only reason Americans could be arrested and charged with a crime for what they were thinking is, if what they were thinking was part of an imminent deadly course of action that created a clear and present danger for the country. Holmes fussed with this idea (and how other judges kept getting off course and overbroad) for most of his lifetime.

The Goonda Act Here’s a contemporary example of where this kind of mistake can lead. In India — (also a democracy — in fact, the world’s largest youngest democracy) where the government in 2014 passed a new law. 79

Schenck. v. U.S. 249 U.S. 47; see also Baltzer v. U.S.; Frohwerk v. U.S.; and Eebs v. U.S.; Abrams v. U.S., all which demonstrate the shifting platform of what can constitute criminal behavior based on dissenting ideas and speech. The courts still struggles.

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The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-Grabbers and Video or Audio Pirates (Amendment) Bill of 2014. For short, it’s called the Goonda Act. It allows the government to take people into custody based on thought alone. Including their likes and dislikes on social media networking if it appears they are potential digital offenders who are planning to share something that is digitally copyrighted. It provides a year in jail without possibility of bail. It is classic constitutional violation under the argument against prior restraint of thought or act that has not come to fruition as a crime.

SENTENCING TRICK 9: STATUTORY EXCESSES BY INCONSISTENT DRAFTING The Goonda Act demonstrates what can happen in the birthing stages of a new law, and how it can go terribly wrong and need correction. As a former bill drafter, I know it is important to think like a chess player and plan ahead for as many vagrancies and contingencies (as many as there are people) when writing draft laws. It’s similar to a lawyer who does estate planning — when done well, it involves far more than pulling out a standardized boiler-plate form and filling in the blanks. There are just to many human variables waiting decades out, to consider and plan for. That said, it’s better to use the Nolo forms than have no estate plan at all. Watching the HAR Justice documentary on probate court wealth-transfer judge scams was more than enough to convince me that something is better than going to court when someone you love dies because they had nothing by way of estate planning. Author’s Note: Good estate planning is like good dentistry — you never know how good it really is until many decades later. I used to ask dentists who they go to for their own dental work. Sadly, one said he did his own. I found that dentists all use the same quiet dentist with great hands — but not much in the way of extraverted personality. (Dr. Tanaka) You just can’t tell a good book from its cover. Going back to the though prosecution, I want to compare the relative length of the LWOP sentence Pamela Smart received for her thought crime with the sentences given to the cold-blooded actual murderers. 1. Smart was charged and convicted of conspiracy as an accompllice, conspiracy and witness-tampering. Her guilty verdict resulted in a mandatory life imprison without possibility of parole. She was 21 years old — just over the age of majority. She was not a grieving widow, and may even have been happy to be released from a shortterm marriage where both husband and wife cheated on each other. 2. Billy Flynn, a juvenile, admitted shooting Gregg Smart in a premeditated cold-blooded way. He got and brought the gun to the scene, and with two friends planned and followed through by executing Greg Smart with a bullet to the head. As a juvenile, his lighter sentence also reflected a plea deal where Maggiatto charged him only with second degree murder, and a further reduction (leniency) in sentencing for cooperating to convict Smart at trial. He had a sentencing motive to cry and look sympathetic on national television and to cooperate with Maggiatto by shifting his culpability over to the defendant. Pame was sentenced to life LWOP — highly disproportionate sentence when compared to other three people sentenced for the actual act of murder. Her crime was a different kind of crime of thought (conspiracy before and after the fact) — not for the act itself that happened earlier. Her guilty finding was a muddled part of a larger charge of conspiracy, and the in-trial drama of another defendant placing his blame solely on her as part of a plea deal with Prosecutor Maggiatto. By muddling together the thought-crime — with deliberate murder action, the result can lead to sentencing imbalance and injustice. Another law orphan. Like the Woodrow Wilson thought-crime — signing a dissenting draft petition can be successfully prosecuted as obstruction of recruitment for the draft. I am critical of mushy convictions that roll hate or criticism and other unpopular thinking into after-the-fact thinking, criticism of judges, and other unpopular and even reprehensible thinking, into the same standard as ‘giving aid and comfort to the enemy’ in times of national war. It doesn’t compute fairly, and I am personally wary of government punishments for contrarian opinions, dissenting thought, or thought-alone being called and prosecuted as a crime. 607

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Justice Holmes wrote cautioning the presidency and the court that their desire to win the war “should not be allowed to put the power of the court into intolerance of opinions and speech that could not be imagined to do harm, although opposite to our own. It is better for those that have unquestioned and almost unlimited power in their hands, to err on the side of freedom.”80

These ideas range far beyond the scope of mere legislative bill-drafters (such as I was when I was drafting laws for the state legislature), but the mistakes written into these kinds of criminal sentencing laws — like the new India Goonda law, and the hate-crimes sentence enhancement law and even the federal mandatory sentencing guidelines (that we will review next) are the responsibility of the legislature, the governor, and the Supreme Court to correct the inequities and make the laws respectful and consistent with the fundamental rights of free speech provided by the Constitution. As improvident as that might be politically. Here, the conflict of a law against thinking or believing — represents a conflict with our Constitutional right to think and express contrary and unpopular ideas under the First Amendment. Even when those ideas are socially repugnant, offensive, racist, or blasphemous.

SENTENCING TRICK 10. PRIVATE SEXUAL PUNISHMENT This is one of those hard to categorize abuses. Mobile County Circuit Judge Herman Thomas had a sentencing trick. He, like Judge Fairbanks in New Hampshire, sometimes administered private punishments in his chambers with no one else present. The defense attorneys, the clerks of court, all knew what was occurring, but no one said anything. Judge Thomas not only ‘administered’ oral sex punishments, but he also conducted sodomy and paddling. Even when defendants got lighter sentences — Judge Thomas would sometimes go to the jail and checked out young men. He was charged with 57 counts of kidnapping, sodomy, sex abuse, extortion, and ethics violations and was found not guilty. He claimed to be innocent but the committee found he administered paddling for his own sexual gratification, not for any punishment reasons. However he resigned and later lost his license.81 Note: So where’s the criminal part of it? Joke’s on us. This was in the private bar/judge conduct court. That private judge ethics court fashioned to keep judges out of the real criminal docket. One court for real criminals, and this other one for handling judge-criminals. A number of judges who targeted women for reduced sentencing and sexual encounter “follow-up” at home are also reported in the chapters on sex with judges. I once helped a woman whose attorney raped her multiple times, including at the courthouse in an attorney conference room, and at a boy scout camp. She was terrified both to be in court without a lawyer, and by him.

SENTENCING TRICK 11 — CORPORAL PUNISHMENT

CHAPTER

Corporal punishment has not been administered since the 1900’s — except a few of reported cases — mostly of sexual perversion in judges. See also Judge Fairbanks in New Hampshire in the ethics Chapter 2.

7

a. Chemical castration.82 I was shocked to read about the chemical castration in England of a brilliant homosexual scientist during what was correspondingly one of America’s most shameful hours based on the same social fears — the McCarthy Red scare, where fear of sexual blackmail of important national figures ended up essentially criminalizing citizens for non-criminal behaviors and acts and thoughts. The British government apologized post-humously to the family of Alan Turing for the court’s chemical castration sentence.

80

Sheldon Novick, “The Unrevised Holmes and Freedom of Expression,” 1991 Supreme Court Review, 303 389 (1992).

81

The AP for the New York Lawyer, April 22, 2009, The Nort Country Gazette, April 22, 2009, and CNN.com at www.cnn.com/2009/CRIME/10/26/alabama. judge.inmate.sex/

82

This is not an American case.

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b. Banishment. This is one of those old-fashioned sentences that are still in existence in Mississippi. It is categorized as a punitive measure, but the state supreme court recently found that a “’narrowly crafted sentence’ ‘for a small geographic area’ may serve ‘very well’ as a ‘substantial and legitimate concern.”83 It has been rarely used — ordered eight times and upheld on appeal, three. The cases involve local banishment issues during a period of probation — the mall and a department store, a 100-mile radius from the courthouse; or staying away from the family home. It restricts the right of free movement, and ties the restriction to a specific protection. It seems to function like modern a protective order. As quaint as this sentence sounds, it is also modernly used under different terms — covered in the next chapter in the honor code history §.

SENTENCING TRICK 12 — JUDICIAL MANIPULATION AND ERROR — (11 EXAMPLES) A. JUDGE PREJUDICE IN SENTENCING This case is unusual because reviewing state courts have routinely evaded correcting overly harsh state sentencing in excess of the maximum sentence. The Judge Edward Colt, in a Colorado trial, sentenced a woman to twice the statutory maximum under state law. At sentencing, he testified personally about how affected he and his clerk of court were because of the crime required him to evacuate his home (along with 8,000 other people who were evacuated because the resulting forest fire.) The defendant had already pled and was sentenced in federal court for the same crime — starting a forest fire. This was an additional state court sentence. Terry Lynn Barton was a U.S. Forest Service employee, who inadvertently started a massive forest fire when she ‘improvidently’ burned up a letter from her ex-husband and started the fire. Okay, she was acting stupidly and probably emotionally, but it wasn’t deliberate or intentional. It was an accident. She was serving both sentences (federal and state) concurrently. She was fined $42.2 million dollars, sentenced to six years by the federal court, and 12 years by Judge Colt. As part of her plea deal, Barton waived her right to jury trial, but the state appeals court said that didn’t matter — a jury had to find all of the ‘extraordinarily aggravating circumstances’ affecting her sentencing,84 and they vacated the extra six year enhanced sentence.

B. RETALIATION AND JUDGE EMOTION When factors are at stake in the judge’s sentencing or ruling behavior are factors other than those at law, judge can retaliate and act disproportionately in ordering punitive punishments or overly harsh orders. It may be for personal feeling or political beliefs, or because the judge perceives the defendant to be a ‘state enemy’ challenging his authority or another legal or bureaucratic system. I believe that is what Judge Sterling manipulated to do to my brother, who she apparently thought at trial that my parents were dangerous militants or patriots — perhaps after my brother run for the Arizona House of Representatives as a Libertarian.

C. REMOVAL OF CHILDREN FROM PARENTAL CUSTODY And termination of parental rights are other areas where the ‘sentence’ is disproportionately severe in relation to the allegation. Any case where the power of the judge is disproportionately dispensed with strong personal feeling to unfairly punish those before the judge who are often at the opposite end of the social, economic and political spectrum from the judge’s view of how society is to function. For example, if the judge believes the defendant or party doesn’t demonstrate enough respect or acceptance of his authority, he may issue orders which are primarily designed to teach the defendant ‘respect’ for the court’s power. That is too often done, but is not a proper function of the court process. It puts dispensing justice secondary to the judge’s own ego.

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Judge James D. Maxwell II, And Stay Out! A Look at Judicial Banishment in Mississippi, Mississippi Court of Appeals appointment, 2009.

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Steven K. Paulson, for Associated Press, “Sentence tossed in wildfire case,” December 17, 2004.

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Chapter Seven — Tricks after Trial

D. ABUSE OF THE ROLE OF THE JURY85 The role of the jury in justice cannot be overestimated in my opinion. The barrage of injustice occurring in courts because defendants waive jury rights is epidemic and shameful. Americans should trust each other — more than putting their trust in the prosecutor-biased system of sentencing without trial. That is truly a fixed deck, weighed against criminal defendants. But even when there has been a jury trial — the state game isn’t over — What happens after the judge says thank you very much ladies and gentlemen. Your work here is completed and you many go home? Your work is completed is the operative phrase, introducing the two judge tricks that follow after the jury is gone. That’s when judges start to act like juries, finding and manipulating so-called ‘facts’ that should have been presented and tried by a jury, but which the judges somehow or another reserved for themselves to decide at sentencing. It’s a pattern of holding back or doubling-up (two different tricks) on critical elements of the alleged crime, then using judicial discretion wrongfully, to make harsher sentences after the jury has been dismissed. Some states (Arizona, for example) have a huge ongoing decades- long problem with judges who dismiss jurors then, after conviction, assume the juror role for themselves. They do this by extending the fact-finding process into sentencing. It is so manipulative and dishonest — that Congress has tried to stem this abuse. Unfortunately, Congress passed legislation that made the unfairness worse, and shifted some judge powers over to prosecutors at sentencing (see § below on Federal Sentencing Guidelines). A variety of niches where judges try this include dishing out an enhanced sentence — either within the maximum sentencing range — or beyond. Arizona has had a number of cases reversed by the U.S. Supreme Court for this kind of judicial activism, plus there are many more that do not get reversed in federal court on appeal. There is an audio of the oral argument of former Arizona Governor Janice Napolitano in the Ring death sentence appeal,86 where U.S. Attorney General Napolitano87 unconvincingly insisted that judges were better at fact-finding than jurors in Arizona — and judges were the best people for determining to extend harsher sentences based on this after-trial fact-finding ‘judicial power’. She lost, from the questioning of the bench, she was hugely unconvincing (despite her arrogance) and Arizona judges were held to limit enhancing sentences within the statutory range. Napolitano argued that the Arizona judge’s right to weigh mitigating and aggravating factors when contemplating the death penalty is backed by the Eighth Amendment, which protects against cruel and unusual punishment, so that means a ‘death penalty’ is not an “extra” punishment like those outlined in New Jersey’s hate crimes law but is within the scope of punishments available for murder in Arizona, Napolitano said.

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The other side said that judges are not as impartial as juries and are more likely to hand down death sentences. “Judges are elected by the voters and are not immune to local political pressure,” said David Elliot, spokesman for the National Coalition to Abolish the Death Penalty. “Justice is supposed to be blind, but when your job is at stake, impartiality sometimes falls by the wayside.”

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Napolitano was counting on nibble, nibbles in each of her arguments — which in from a broader viewpoint can be seen as pushing always for broader authority for state court judges to act without oversight. In Arizona, this attitude — judges against jurors, has lead to systemic abuse of federal rights — for example, Arizona state government pretends to ‘recognize’ habeas corpus — the right of falsely or wrongly imprisoned people to petition for release. Habeas corpus means give us the body, but Arizona citizens are not allowed any state forum or access to file for their own release from 85