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.

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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

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TABLE OF CONTENTS

CHAPTER ONE: TABLE OF CONTENTS

CHAPTER

Chapter One — The Culture of Modern Judges

1 THE COURT IS LIKE A COUNTRY CLUB

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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).

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§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.

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§ 1

CHAPTER



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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

§21

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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§20 Drunk, Stoned, Incapacitated, Ill-Tempered, and Burned Out

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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§20 Drunk, Stoned, Incapacitated, Ill-Tempered, and Burned Out

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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Chapter Two — Bad Behavior and Ethics Tricks

CHAPTER

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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§30 Staffing the Courthouse — Insider Patronage

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).

155

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Chapter Three — Clerk of court and administrative tricks

CHAPTER

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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§30 Staffing the Courthouse — Insider Patronage

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

§

30

Chapter Three — Clerk of court and administrative tricks

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.

206

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

207

TABLE OF CONTENTS

§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.

208

§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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41

CHAPTER



4

286

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

§

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.

288

§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.

289

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54

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

386

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

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.

CHAPTER

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

576

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

577

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.

CHAPTER

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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Chapter Seven — Tricks after Trial

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.

581

§

106

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

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108

Chapter Seven — Tricks after Trial

EXAMPLE TWO: DANIEL ELLSBERG Do you remember Daniel Ellsberg’s trial for espionage of the Pentagon Papers? How the presiding judge asked Ellsberg if he wanted the judge’s decision on mistrial or wanted to wait for the pending jury verdict? That folks, is the classy way to handle a ruling on mistrial. Not every judge can act classy.

EXAMPLE THREE: TARDY MISTRIAL Another abusive mistrial ruling occurred in Florida where a man charged with DWI (drunk driving) had a three-day trial and the jurors acquitted Laurence B. Reid, a Panama City lawyer, who was represented by super-star defense lawyer Fred Haddad. Haddad, before the matter was submitted to the jury, repeatedly asked for a mistrial. The judge didn’t rule. After the jurors returned and pronounced Reid innocent, the judge, Peggy Gehl waited for the jurors to leave, then she reconvened and said she was going to rule on Haddad’s motions for mistrial. Haddah: You can’t It’s moot now. Gehl:

I’m granting them. Yes, I am granting your motion for mistrial.

Haddad: It’s already been moot. The verdict was not guilty. Gehl:

Your mistrial is granted because they [sic] were very egregious errors and I knew it.

Haddad: Well, he’s already been found not guilty. Gehl:

I t doesn’t make a difference because I have not adjudged him not guilty, but the jury came back not guilty. You asked for a mistrial and you’re going to get one.168

The prosecutor refused to retry the case; the judge later vacated her mistrial order. She claimed she made the mistake not out of bias, but because of the defense attorney committed ‘noxious badgering.’ Remember that trick about blame the victim? Or the threat to me from the Yavapai County Sheriff’s department that I was going to get myself hurt, (if I didn’t stop trying to locate witness Ramon Rivera for Eric’s trial?) Same kind of thinking here. You made me do it, sounds like a whine to me. Gehl got a judicial conduct complaint and she threatened the attorney back that she might file a complaint against him, “he shouldn’t be surprised if he ends up before the [Bar’s] rules committee” she said.

CHAPTER

This is everyday stuff, folks. In this hands of people like Judge Gehl, the attorney conduct complaint process is merely a weapon against the enemies of the System.

7 168 From Transcript of trial, reported by Dan Christensen, Pushed by lawyer, judge digs in, Broward Daily Business Review, June 3, 1999.

640

CHAPTER EIGHT: TABLE OF CONTENTS

CHAPTER EIGHT — TRICKS ON APPEAL CHAPTER EIGHT INTRODUCTION BY RICHARD ROHR §113 THE CULTURE OF THE COURT §114 STRATEGIES FOR MINIMIZING THE NUMBER OF APPEALS §115 JUDGES’ WORK HOURS §116 DOCTRINES THAT AVOID APPELLATE REVIEW §117 JUDGE ASSIGNMENTS, PANELS AND RECUSALS §118 THE HISTORY AND EVOLUTION OF APPEAL DECISIONS §119 THE WRITTEN APPEAL DECISION §120 HOW TO READ AN APPEAL DECISION §121 DO-OVERS AFTER THE FIRST APPEAL §122 EVASION AND OTHER JUDGE TACTICS §123 THE ROLE OF TRUST IN APPEAL DECISIONS §124 EVADING THE RULES — AN HONOR CODE §125 DATA ABOUT JUDGES IS HARD TO COME BY §126 TWO ESSAYS §127 CONFLICTS OF INTEREST AND DISQUALIFIED JUDGES §128 SUBSTITUTE PANELS FOR APPEALS HEARINGS §129 NOT FOR PUBLICATION — UNPUBLISHED OPINIONS §130 EXTRAORDINARY CORRECTIONS — CLEMENCY, REDUCTION OF SENTENCE AND PARDON §131 ACTUAL INNOCENCE APPEAL §132 THE MORAL PREMISE

§134 THE INVISIBLE HAND, THE HAND OF GOVERNMENT, AND THE THIRD HAND 641

TABLE OF CONTENTS

§133 THE COST OF LAWS IN THE U.S

Chapter Eight — Tricks on Appeal

CHAPTER EIGHT INTRODUCTION — TRUE CONVERSION

“For much of my life, I’ve been trying to facilitate transformation — conversion, change of consciousness, change of mind—with various strategies and formats. The transformed mind let’s you see how you process what’s coming at you. It allows you to step back from your own personal processor so you can be more honest about what it really happening to you. If you do not detach, you are too attached to yourself. It’s not so much about what comes at you; it’s what you do with it. The Achilles heel of organized religion might be that we tend to tell people what to see instead of teaching them how to see. The contemplative way of looking at something is letting it be what it is in itself as itself, without any meddling from me by needing to describe, fix, consume, sell understand, or use it in any self-serving way. Transformation is not merely a change of morals, group affiliation, or belief system — thought it might lead to that — but a change at the very heart of the way you receive, hear, and pass on each moment. Do you use the moment to strengthen your own ego position or do you use the moment to enter into a much broader seeing and connecting? Those are two very different ways of seeing. From a religious perspective, a conversion experience is an experience of an Absolute. And once you’ve experienced a True Absolute, everything else is relativized, including yourself! Once you’ve experienced fullness, you don’t need to keep seeking “that which does not satisfy” (Isaiah 55:2). Authentic God experience always leads you toward service, toward the depths, the edge, the outsider, the lower, the suffering, and the simple. What you once thought was “the center” has shown itself not to be the center of anything. If there is not such an earthquake in both your heart and mind, I do not think you can rightly speak of spiritual conversion. Transformation begins with a new experience of a new Absolute, and, as a result, your social positioning gradually changes on almost all levels. Little by little you will allow your politics, economics, classism, sexism, racism, … and all superiority games to lose their one-time rationale. You just “think” and “feel” differently about most things. If this does not happen in very specific ways, I have no reason to believe you have converted. Your motivation foundationally changes from security, status, and sabotage to generosity, humility, and cooperation. If you do not want to go there, you’d better stay away from the Holy One.”

CHAPTER

Richard Rohr, Sunday, June 26, 20161

8

1

Quotation was adapted from Richard Rohr, Authentic Transformation (CAC: 2016) CD, Center for Action and Contemplation, Albuquerque, NM

642

§113 The Culture of the Court

113 THE CULTURE OF THE COURT

§

A. THE CULTURE OF THE COURT The culture of the court is highly congenial. As members of an elite club, the high court judges pride themselves on their homogenous makeup and functioning. They take their identity from the appearance of a court role, which must be maintained at all costs.

“A COURT ALOOF FROM ITS NATION” “Under the strictest definition the court consisted of the monarchs’ immediate entourage and those institutions of the royal household responsible for their personal and ceremonial needs.” In actuality, that definition only served to identify the members of the ruler’s inner circle, since the King of England’s court also consisted of a large number of subordinates. During the time of the Renaissance, from the 14th through the 16th centuries, English court culture evolved and expanded due to the influence of other European countries, resulting in a court aloof from its nation. Shakespeare’s 1 Henry IV displays excellent examples of the nature, military traditions, social rituals, and marriage system of the Renaissance English court. (internal citations omitted)2 This phrase, culture of the court, is a term of art, fashioned by American courts of justice as a gentlemanly mantle of rank that individual judges clothe themselves when necessary for protection or to assert privilege. If they are challenged, this is one of two trump cards in their defense.3 This court rank defines “ever facet of a court-member’s being.”4 The role modern judges play reflects their ego-image as modern English gentry. The phrase ‘culture of the court’ was used hundreds of times during the judge impeachment proceedings in New Hampshire. As a short-cut summary explanation for individual and institutional behavior that was secretive and unethical. Ol’Boy Insiders used two madeup phrases as a free pass not to answer prosecutor questions about their behavior. Often, the judges wouldn’t explain, but just said — it was culture of the court. “Culture of the court” was a euphemism for “judicial privilege.”5

The culture of the court was clearly implied to be that of special rank and privilege — above the din of common case handling and common people. The judge’s self-perception was that as a collective body and as individual members, their acts were covered with secret inherent rights and powers because of the rarified atmosphere of their office. This feeling of entitlement is the outcome of decades of expanding and applying legal and social authority without interference or oversight. Judges maintain they have the capacity to stamp approval for their own acts. They claim to hold the power of creating legitimacy — regardless of whether or not that is true, or fair, or within the grant of authority provided for the Court branch of government. American law is man-made. Judges since 1803 (Marbury v. Madison) have asserted supremacy of their decisions — as non-questionable, non-review-able laws, not derived from any moral authority outside of man (such as God or Natural Law.) Their authority is established by the Constitution — federal and state, which is one reason judges frequently minimize, denigrate and evade the Constitution. It represents limits on judge authority. 2

Except from a play by Melissa Showalter, “A Play Mirroring the Culture of a Court, (2010), who quotes from R. Malcolm Smuts, Court Culture and the Origins of a Royalist Tradition in Early Stuart England. Philadelphia: U of Pennsylvania P, 1999. 2-4. Online at www2.cedarcrest.edu/academic/eng/ lfletcher/hernry4/papers/mshowalt.htm

3

Note, cheating at cards is a gentleman’s violation of honor, not a criminal code crime.

4 Id. 5

Think of Presidential “executive privilege” — the exemption claimed by U.S. Presidents for not testifying to Congress. This is something like that, and is presented later.

643

§

113

A searing exposÊ and report card on the condition of the American court system, a halfcentury after a secret revolution and national take-over by judges. This wide-ranging sociological and legal study looks at the history and politics behind a new court monopoly where judges assumed the power to declare ultimate law. This dangerous development went largely unnoticed. The new judge system represents a seismic change in institutional character, leading to a profound, hidden and detrimental impact on the thinking and behavior of those who judge as a profession. The change brought about widespread corruption, hidden links, and slippage in the fundamental nature of trials, fair process, and equality for everyone. Whether in civil or criminal court or newly created special forums, judges routinely evade the Bill of Rights and the Rule of Law, with impunity. The author is an experienced Family Law legal writer, former lawyer, and founder of the Ex-Wives of Judges Club. She identifies and weaves experiences from her own and hundreds of other cases to demonstrate 120 special handling techniques used by modern judges to secretly and unfairly alter case outcomes. Everyday at every level of the court system, American judges systematically avoid civil rights and equal fairness, under a private system that operates on patronage and cronyism. This is a reader-guide for lay-people to learn how to recognize wrongs in the new system. It is also a long overdue analytical commentary and look at the hidden motivators of judges, who misuse judicial authority and abandon ethics. It is a call to reform, but also a scholarly argument about personal ethics and the role of God and traditional morality in court—why the work of judging others involves putting one’s own spiritual and moral house in order.

For years, I assumed the word prophet meant forecaster or fortune-teller, but discovered recently it has an alternative meaning as critic, teacher, and one who warns and instructs. We who carry the modern message of the need for judge reform are in an unpopular position of being teachers and critics bearing information the ruling establishment does not want heard or reported. However, my goal is to write not for the ruling class, but to the 99.997% of the 322,267,564 Americans who are not judges or lawyers.

ISBN 978-0-9796964-4-2