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Tuesday, August 31, 2010

Attorneys Scratch Backs of Judge Wannabes

Att'ys $cratch backs of judge wannabes
The New York Post by Chuck Bennett - August 30, 2010

This season's crop of aspiring jurists is raking in thousands of bucks in campaign contributions from the very same attorneys who argue cases before them -- despite facing uncontested elections, a Post analysis found. The 14 candidates this year -- all seeking 10-year terms in municipal Civil Court -- even held fund-raisers in the boardrooms of law firms and in the homes of the firms' founding partners. Two weeks ago, for example, attorney Harriet Thompson, who is running unopposed in Brooklyn, held a $1,000-a-plate fund-raiser in the home of Meryl Wenig, the founding partner of real-estate law firm Wenig Saltiel. That dinner, which raised $8,000, was co-sponsored by state Sen. John Sampson, a Brooklyn Democratic powerhouse under investigation for mingling his public office with his private law practice. Thompson raised $20,635 as of Aug. 18 -- including $11,965 from law firms or real-estate firms -- and at least $1,850 from practicing attorneys. She didn't return a call for comment. "I think it's reasonable you would have questions when the umpire calling the strikes is being paid by one of the teams," said Adam Skaggs, a scholar with NYU's Brennan Center for Justice. Civil Court judges earn $125,600 a year and preside over lawsuits seeking less than $25,000 in compensation -- including many slip-and-fall cases and property disputes. The campaign cash is typically spent on goodwill donations to local Democratic clubs, fees to freelance petitioners, fliers and meals.

Technically, judges aren't supposed to peek at their own contributor list, but they are allowed to attend their fund-raisers, according to the Office of Court Administration's ethical guidelines. "When they have events, what they do is always invite a few people as guests, so in theory, the [candidate] wouldn't know if someone paid or is maybe just a guest," said veteran political consultant Jerry Skurnik. "But in truth, they know it's a rule they can't enforce." His own client, Housing Court Judge Gerald Lebovits, who is running for Manhattan Civil Court, accepted 60 donations totaling $13,825 from individuals over the past two months, all but two of them attorneys. He also collected donations ranging from $50 to $1,250 from 25 law firms for a total of $8,650. Lebovits told The Post he wanted a big war chest to scare away potential opponents -- he even lent himself an extra $100,000. The strategy worked. Lebovits is running unopposed. Skurnik added that Lebovits is kept at arms-length from the fundraising numbers, although he attended his own $150-a-head fund-raiser at The Palm-Tribeca restaurant last month. Another Manhattan Civil Court candidate, Leticia Ramirez, held her July 22 fund-raiser in the law offices of Raphaelson & Levine, a firm specializing in personal-injury lawsuits. Ramirez also accepted a $5,000 loan from real-estate attorney Martin Meltzer, a partner at Belkin Burden Wenig & Goldman. That firm also gave her an outright donation of $1,000. Her campaign didn't return a call for comment. Additional reporting by Douglas Montero - chuck.bennett@nypost.com

Monday, August 30, 2010

Amid Active Federal Criminal Inquiries, 2nd Circuit Again Considers Carvel


MOTION TO PROCEDURALLY REASSIGN REMANDED CASE TO ANOTHER JUDGE AND TO REFER APPARENT FELONIES TO THE U.S. ATTORNEY

I. GROUNDS & RELIEF

1. Plaintiff Pamela Carvel respectfully requests that this Court, following its remand of this case on appeal, order reassignment of the case to a different district court judge because by actions and words reflected in the attached hearing transcript. The district court has left Plaintiff with no meaningful alternative to secure the First, Fifth, and Fourteenth Amendment rights guaranteed by the U.S. Constitution and enforced by U.S. laws.

2. Judge Scheindlin’s bias resulting from “the Second Circuit's very limited remand” (Tr. 2:3-2:4) and unusual circumstances resulting from the judge’s attitude against pro se litigants, and against allegations of corruption by lawyers and judges. This bias is demonstrated by the tone of a hearing convened by the district court’s calling lawyers who did not file Notices of Appearance, to coach the lawyers in a speedy dismissal of Plaintiff’s remanded case by lack of “plausible” claims. “THE COURT: If she can plead a conspiracy against these people that's viable in federal court under the pleading standards, that's that. But it hasn't been tested yet. Do you wish to test it with a motion to dismiss? (Tr. 8:16- 8:19). “THE COURT: Failure to state a plausible claim of conspiracy.” (Tr. 12:10- 12:11).

3. Reassignment is appropriate where the trial judge has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public. United States v. White, 846 F.2d 678, 696 (11th Cir.), cert. denied, 488 U.S. 984 (1988); 109 S.Ct. 537, 538, 102 L.Ed.2d 568 (1988).

II. STATEMENT OF JURISDICTION

4. This case was never tried. No motions were made before remand. Both for the judge's sake and the appearance of justice, an assignment to a different judge may be desirable and would not effect judicial economy. There is no suggestion in any of the case law that the district court as an institution must first be given the opportunity to consider whether to reassign a case. If the request for reassignment after remand were made of the district judge by a party on bias grounds, the judge's refusal would be directly reviewable in this court by mandamus petition. United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir.1986) cert. denied, 479 U.S. 988 (1986).

5. "The federal appellate courts have broad discretion to fashion remedies upon remand, including reassignment to a different district court judge, pursuant to 28 U.S.C. § 2106." See 28 U.S.C. 2106 (providing that appellate courts may "remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances"). That provision allows this Court to reassign the case to a different judge on remand. United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995) (per curiam).

6. Unlike recusal, reassignment may be considered by the courts of appeals in the first instance. See, e.g. United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995) (per curiam); Bemibenista v. United States, 866 F.2d 493,499 (D.C. Cir. 1989); United States v. Tucker, 78 F.3d 1313, 1322-24(8th Cir. 1996); United States v. Sears. Roebuck & Co., 785 F.2d 777, 780 (9th Cir. 1986) (per curiam).

7. The All Writs Act provides that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a).

8. These statutes, as well as the court's inherent authority, allow it to direct that a case on remand be assigned to a different judge. Sederquist v. City of Tiburon, 765 F.2d 756, 763 (9th Cir.1984); Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804 (9th Cir.), cert. denied, 375 U.S. 821, 84 S.Ct. 59, 11 L.Ed.2d 55 (1963) (28 U.S.C. Sec. 2106); United States v. Ritter, 273 F.2d 30 (10th Cir.1959), cert. denied, 362 U.S. 950, 80 S.Ct. 863, 4 L.Ed.2d 869 (1960) (inherent authority and All Writs Act); see generally Barber v. United States, 711 F.2d 128 (9th Cir.1983).

9. In the scheme of the federal judicial system, the district court is required to follow and implement appeallate court decisions just as those courts are oath- and duty-bound to follow the decisions and mandates of the United States Supreme Court. "[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be." Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 706, 70 L.Ed.2d 556 (1982); also see United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir.1986) at 780-81 cert. denied, 479 U.S. 988 (1986), 107 S.Ct. 580, 93 L.Ed.2d 583 (1986); United States v. Yagid, 528 F.2d 962, 965 (2d Cir.1976). See also 28 U.S.C. § 2106 (1982).

10. In addition, a court of appeals decision ordering reassignment rests upon a long line of cases permitting a court of appeals to order reassignment of a case to a different judge in the exercise of the court's inherent power to administer the system of appeals and remands. United States v. Sears, Roebuck & Co., 785 F.2d 777; United States v. Alverson, 666 F.2d 341 (9th Cir.1982); United States v. Wolfson, 634 F.2d 1217 (9th Cir.1980); United States v. Ferguson, 24 F.2d 81 (9th Cir.1980); United States v. Robin, 553 F.2d 8 (2d Cir.1977) (en banc); United States v. Yagid, 528 F.2d 962 (2d Cir.1976).

11. Under these standards, reassignment here is warranted to preserve the appearance of fairness, to facilitate completion of the serious legal duties at issue, and to mitigate the wholesale violation of Constitutional rights to redress of grievances, due process, equal treatment, etc. Such rhetoric as memorialized in the transcript of the hearing raises appearance concerns going to the heart of the fairness and decorum of Article III proceedings on civil rights.

12. In Haines v. Ligpett Group, Inc., 975 F.2d 81 (3d Cir. 1992), the Third Circuit held that two paragraphs in a single published opinion — accusing the tobacco industry in colorful language of deliberately concealing information about the health risks of its product — warranted reassignment to preserve the appearance of fairness on remand. See 975 F.2d at 97-98.

III. REASONS WHY THE CASE SHOULD BE REASSIGNED TO A DIFFERENT DISTRICT COURT JUDGE

13. This district court’s hearing began with a wholly gratuitous reference to “Our biggest problem” (Tr. 3:1-3:3) referring to Pamela Carvel’s amended complaint, and continued derogatorily referring to Pamela Carvel as one who goes “barging into” Defendant’s office to serve papers (Tr. 13:15-13:16). The hearing included a misstatement of “judicial immunity” (Tr. 3:14) with inference that discovery would quashed. (Tr. 6:19-6:20). Judge Scheindlin followed by coaching Defendants’ lawyers on using plausibility to assert motions to dismiss (Tr. 12,14), and motions for sanctions (Tr. 8:25-9:3). Judge Scheindlin assured “this time, there's no leave to amend.” (Tr. 12:14-12:15). The district court’s pronouncements are even more extraordinary because they are not based on any record of evidence before the court.

14. The transcript of the first hearing in this case demonstrates Judge Scheindlin is frustrated with Petitioner’s persistence in obtaining discovery of the primary evidence from the Scarpinos that would prove or disprove conclusively Pamela Carvel’s assertions of bribery. “Take nonparty discovery, if you can.” (Tr. 6:19-6:20). Judge Scheindlin seemed frustrated to the point of expanding the legal limits of “judicial immunity” beyond the accepted precedents. “Absolute judicial immunity, and his wife.” (Tr. 3:14). The judge’s frustration appears to have affected how the district court has conducted hearings involving pro se Plaintiff and defense counsels. Judge Scheindlin coached Defendants’ lawyers as to how to seek dismissal, “You think there's still a failure to state a claim, a plausible claim of conspiracy? Is that your position?” (Tr. 12:4-12:6) “That's good, because if I dismiss it this time, there's no leave to amend.” (Tr. 12:14- 12:15).

IV. UNDERLYING LEGAL ISSUES EXPLAINED – BUT NOT HERE ARGUED

15. Plaintiff Pamela Carvel does not challenge Judge Scheindlin’s determination on judicial immunity by this application but will indeed assert its impropriety by appeal after Judge Scheindlin dismisses the case again – this time promised by Judge Scheindlin to be dismissed with prejudice. Judge Scheindlin refused to allow an appeal at this time.

16. Judge Scheindlin from the bench questioned the wisdom of the substantive law she had to apply pursuant to the Second Circuit’s remand and challenged the Plaintiff’s right to assert nonjudicial claims against Mr. And Mrs. Scarpino (Tr. 3-6). Mr. And Mrs. Scarpino entered into conspiracies that commenced prior to Anthony Scarpino’s election as Surrogate’s Court judge. Judge Scheindlin indicated “plausibility” could become impossible to overcome because discovery might be impossible to obtain -- “Take nonparty discovery, if you can.” (Tr. 6:19-6:20).

17. Judicial immunity is immunity from suit, not just from ultimate assessment of damages, and it can be overcome only if a judge's actions are nonjudicial or were taken in the complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9 (1991). Based on the doctrine expressed in Bradley v. Fisher, 13 Wall. 335 (1872), the Court has consistently adhered to the rule that "judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities. Pierson v. Ray, 386 U. S. 547 (1967); Stump v. Sparkman, 435 U. S. 349 (1978); Supreme Court of Virginia v. Consumers Union, 446 U. S. 719, 446 U. S. 734-735 (1980); Dennis v. Sparks, 449 U.S. 24 (1980). Judge Scheindlin expanded this doctrine to include a judge’s wife (Tr. 3:14) and the couple’s nonjudicial acts in conspiracy with others. These are two separate issues: immunity for acts as judge; liability for conspiracy against rights (42 U.S.C. 1981 et seq) as individuals with other individuals. The conspiracy is a violation “under color of state law” when the individual uses his official position to further the private conspiracy, but the official act does not determine the existence of the private conspiracy, it merely illegally guarantees success of the private conspiracy.

V. GOVERNING LAW & STANDARD OF REVIEW
18. In the absence of actual bias, the courts of appeals generally ask:

(1) "whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected,"

(2) "whether reassignment is advisable to preserve the appearance of justice," and (3) "whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness."

See United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977); see also e.g., Cohesive Techs., Inc. v. Waters Corp., 543 F.3d 1351, 1375 (Fed. Cir. 2008) (applying First Circuit law); United States v. Lentz, 383 F.3d 191, 221-222 (4th Cir. 2004), cert. denied, 544 U.S. 979 (2005); Solomon v. United States, 467 F.3d 928, 935 (6th Cir. 2006); Mitchell v. Maynard, 80 F.3d 1433, 1450 (10th Cir. 1996); cf. United States v. Heubel, 864 F.2d 1104, 1112 (3d Cir. 1989) (applying three factors); United States v. White, 846 F.2d 678, 696 (11th Cir.) (same), cert. denied, 488 U.S. 984 (1988); United States v. Wolff, 127 F.3d 84, 88-89 (D.C. Cir. 1997) (same), cert. denied, 524 U.S. 929 (1998); In re DaimlerChrysler Corp., 294 F.3d 697, 700-701 (5th Cir. 2002) (suggesting that the Third, Eleventh, and District of Columbia Circuits apply a "more lenient test" and declining to choose which test to adopt); Simon v. City of Clute, 825 F.2d 940, 943-44 (5th Cir.1987) (footnote omitted) (citing United States v. National Medical Enterprises, Inc., 792 F.2d 906, 914 (9th Cir.1986) (quoting United States v. Robin, 553 F.2d 8, 10 (2d Cir.1977) (en banc)); Bercheny v. Johnson, 633 F.2d 473, 476-77 (6th Cir.1980)); Cook v. Reno, 74 F.3d 97, 99 (5th Cir.1996) (citing Clute and using this test); United States v. Waknine, 543 F.3d 546, 559-560 (2008); United States v. Atondo-Santos, 385 F.3d 1199, 1201 (2004)); United States v. Ressam, 593 F.3d 1095, 1131-1132 (2010); United States v. Paul, 561 F.3d 970, 975 (2009); Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1165 (2007); United States v. DeMott, 513 F. 3d 55, 59 (2d Cir. 2008).

19. The first two of these factors are of equal importance, and a finding of one of them would support a remand to a different judge. United States v. Alverson, 666 F.2d 341, 349 (9th Cir.1982); United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir.1986) cert. denied, 479 U.S. 988 (1986).

20. Some circuits have said that they will invoke the reassignment power when the facts "might reasonably cause an objective observer to question [the judge's] impartiality." United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C.Cir.1995) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)); see also Haines v. Liggett Group, Inc., 975 F.2d 81, 98 (3d Cir.1992) (purpose of reassignment is "to avoid both bias and the appearance of bias"), United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir.1989) ("Reassignment is appropriate where the trial judge has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public."). This criteria is also demonstrated by the transcript of the hearing.

21. The judicial system has the obligation of preserving public confidence in the impartial and fair administration of justice. If a district judge's continued participation in a case presents a significant risk of undermining this public confidence, this Court has the authority and the duty to order the case reassigned to a different district judge.

A. Unusual Circumstances

22. “[I]n a few instances there may be unusual circumstances where . . . assignment to a different judge is salutary and in the public interest, especially as it minimizes even a suspicion of partiality.” United States v. Robin, 553 F.2d 8, 9-10 (2d Cir. 1977). “In such circumstances our remand does not imply any personal criticism of the trial or the sentencing judge.” Id. at 10.

23. In Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1165 (2007), the court explained that remand to a different district judge is appropriate "if there is a demonstration of personal bias," or if "unusual circumstances" are deemed to exist after considering the three factors outlined above. Ibid. (quoting United Nat'l Ins. Co. v. R&D Latex Corp., 141 F.3d 916, 920 (9th Cir. 1998)).

24. Pamela Carvel asserts that the transcript demonstrates personal bias to the remand, especially in a pro se case against lawyers. Judge Scheindlin’s early exposure as clerk to Judge Brieant’s bias against pro se litigants (see Affirmation at 16) may be the “unusual circumstances” that subconsciously make it difficult for her to hear pro se cases objectively, especially after remand. See, e.g., Research Corp. Techs., Inc. v. Microsoft Corp., 536 F.3d 1247, 1255 (Fed. Cir. 2008) (reassigning case because judge's "previously-expressed views or findings may make it difficult * * * to approach a remanded case with an open mind"); Scherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 142 (2d Cir. 2007) (reassigning case be cause it was "questionable" whether judge could be "objective"); United States v. Andrews, 390 F.3d 840, 851 (5th Cir. 2004) (reassignment because judge "breached the barrier between the rule of law and exercise of personal caprice"); Mitchell v. Maynard, 80 F.3d 1433, 1450 (10th Cir. 1996) at 1448-1450 (reassignment following reversal of entry of judgment as a matter of law where, inter alia, judge previously expressed views that the plaintiff's "Eighth Amendment claims are frivolous, a waste of the jury's time and as a matter of law fail to state a claim"); Hermes Automation Tech., Inc. v. Hyundai Elecs. Indus. Co., 915 F.2d 739, 752 (1st Cir. 1990) (reassignment following reversal of dismissal order where judge had "strong criticism of plaintiffs' claims as not only frivolous, but verging on fraudulent," even though court had "no doubt that the original district judge could handle plaintiffs' claims with unquestionable fairness"); United States v. Torkington, 874 F.2d 1441, 1446-1147 (11th Cir. 1989) (reassignment following reversal of entry of judgment of acquittal where, among other things, the judge "questioned the wisdom of the substantive law" and "challenged the government's decision to prosecute"); In re Ellis, 356 F.3d 1198, 1211 (9th Cir.2004) (en banc) (citation omitted); United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir.1979); Cullen v. United States, 194 F.3d 401, 408 (2d Cir. 1999) (noting that reassignment would be appropriate "in recognition of the 'difficulty' that a judge might have 'putting aside his previously expressed views'") (quoting United States v. Campo, 140 F.3d 415, 420 (2d Cir. 1998)).

B. District Judge's Adamance to Prior Conclusions

25. Reassignment may be appropriate, for example, if a judge’s conduct creates the appearance that she is or may be unable to perform her role in an unbiased manner, United States v. White, 846 F.2d at 695 ("[W]here a reasonable person would question the trial judge's impartiality, reassignment is appropriate."); United States v. Holland, 655 F.2d 44 (5th Cir. Unit B 1981) (remarks by judge during trial may give rise to inference of bias or prejudice), or if the judge has demonstrated that she is unwilling to carry out the law in a particular case. Brooks v. Central Bank of Birmingham, 717 F.2d 1340, 1343 (11th Cir.1983) ("stalemated posture" required reassignment of case to different judge)(emphasis added).

26. Judge Scheindlin demonstrated her great difficulty in putting aside her prior conclusions about the merits of this complaint involving corruption by lawyers and that reassignment is necessary to preserve the appearance of impartiality. Although on remand Judge Scheindlin might have fairly considered the complaint on the merits, the transcript demonstrates she has difficulty in so doing. In light of Judge Scheindlin's firmly expressed position memorialized in the transcript, the appearance of impartiality would best be preserved by reassignment of this case. Reassignment will not “entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.” United States v. Robin, 553 F.2d 8, 10 (2d Cir.1977) (per curiam). In determining whether to reassign a case this Court considers not only whether a judge could be expected to have difficulty putting aside her previously expressed views, but also “whether reassignment is advisable to preserve the appearance of justice.” ”‚United States v. Robin, 553 F.2d 8, 10 (2d Cir.1977) (per curiam); See, e.g., United States v. Londono, 100 F.3d 236, 242 (2d Cir.1996).

27. Reassignment is also appropriate in cases where a district court has failed, wittingly or unwittingly, to follow repeated guidance from a court of appeals. Such cases squarely implicate the appearance of justice. A district judge's adamance in making erroneous rulings may justify remand to a different judge. United States v. Doe, 655 F.2d 920, 929 (9th Cir.1981); see also United States v. Larios, 640 F.2d 938, 943 (9th Cir.1981) (remand for resentencing before different judge where original judge had unreasonably refused to wait for transcript of former proceedings before sentencing and was adamant in his belief as to defendant's culpability; he therefore could not reasonably be expected to ignore his conclusions and the appearance of fairness required reassignment); United States v. Ferguson, 624 F.2d 81 (9th Cir.1980) (remand to new judge where original judge created error by refusing to consider mitigating factors before sentencing, where refusal to consider those factors was inconsistent with the need to preserve the appearance of justice and where reassignment would mean little duplication of efforts).

28. In ordering reassignment following consecutive reversals on related points, the en banc First Circuit explained: “A third remand would put the district court judge in a very awkward position. If he ordered a new trial yet again, it might be thought that he was wedded to an outcome; if he altered his result, [one] might suppose that the judge had yielded to exhaustion or to a supposed message from this court.” Conley v. United States, 323 F.3d 7, 15(1st Cir. 2003) (en banc). Although this case has thus far been remanded only once, Judge Scheindlin seems nonetheless to be “wedded to an outcome”. i.e. dismissal with prejudice -- “That's good, because if I dismiss it this time, there's no leave to amend.” (Tr. 12:14-12:15). Although the First Circuit had “no doubt about the good faith of the district judge,” it held that reassignment was warranted “despite the cost of requiring a new district judge to master this record.” Id.

29. In Mackler Productions. Inc. v. Cohen, 225 P.3 d 136 (2d Cir. 2000), the Second Circuit similarly ordered reassignment, to preserve the “appearance of justice” in a protracted and contentious case, after vacating orders in “two separate appeals — raising largely the same questions — on the sanctions issue alone.” Id. at 147. Such cases also implicate efficiency considerations: if a judge “has repeatedly adhered to an erroneous view after the error is called to his attention,” reassignment maybe “advisable in order to avoid ‘an exercise in futility in which the Court is merely marching up the hill only to march right down again.” United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) at 11 (citation omitted).

30. Not surprisingly, courts repeatedly have ordered reassignment in cases involving both disparaging judicial comments and a repeated failure to follow appellate guidance. See e.g., Mitchell v. Maynard, 80 F.3d 1433, 1450(10th Cir. 1996) (“The history of this case, combined with evidence of [the judge’s] expressions of his disapproval toward [the party], his attorney and his claims indicate that in order to prevent any probability of unfairness or appearance of impropriety we should direct a new judge to hear the case on remand.”); United States v. Torkington, 874 F.2d 1441, 1447(11th Cir. 1989) (per curiam) (reassignment following two reversals and comment that prosecution was “silly” and a “vendetta”); Sears. Roebuck & Co., 785 F.2d at 781 (reassignment following three reversals and comment that prosecution was “egregious”).

31. “To reassign a case on remand, [the Court] need only find that the facts might reasonably cause an objective observer to question [the judge’s] impartiality.” United States v. Londono, 100 F.3d 236, 242 (2d Cir. 1996) (quoting Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 21 (2d Cir. 1996)) (internal quotation marks omitted) (abrogated on other grounds by United States v. Mercurris,192 F.3d 290, 294 (2d Cir. 1999)).

VI. REASSIGNMENT IS NOT RECUSAL OR DISQUALIFICATION

32. Plaintiff Pamela Carvel is not acting under the disqualification statutes, by which a party must first invoke before the district court. Instead, this Court is being asked in the first instance to exercise its inherent power to administer the system of appeals and remands by ordering a case reassigned on remand. The basis for the reassignment need not be actual bias on the part of the judge, but rather a belief that the healthy administration of the judicial and appellate processes, as well as the appearance of justice, will best be served by such reassignment.

33. The Supreme Court did not decide the standard to be applied before a court of appeals reassigns a case to a different judge on remand. The Supreme Court explained that a "[f]ederal appellate courts' ability to assign a case to a different judge on remand rests not on the recusal statutes alone [such as 28 U.S.C. 455], but on the appellate courts' statutory power to 'require such further proceedings to be had as may be just under the circumstances.'" Liteky v. United States, 510 U.S. 540 (1994) at 554. The statutory provisions concerning disqualification of judges, 28 U.S.C. Secs. 144, 455 (1982), do not pose an obstacle to this Court's ordering reassignment of the remanded case. The disqualification statutes provide a method whereby a party to an action may request a judge to disqualify herself on the grounds of bias. Id. The statutory provisions concerning disqualification are not either exhaustive or the exclusive method whereby a judge may be removed from hearing a case.

34. As the Second Circuit decision in United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) indicates, the appellate court's authority to reassign exists apart from the judicial disqualification statutes. See 553 F.2d at 11. There is simply nothing in the disqualification statutes to prohibit this Court from taking appropriate action in the first instance. The appearance of justice and the orderly administration of this Court's appellate docket would best be served by reassignment of the remanded case to another judge. Since it appears the original judge has difficulty in putting aside previously expressed views, and reassignment is advisable to avoid the appearance of prejudgment, the case remanded to the district court can be reassigned in keeping with the principles stated in United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) (en banc) (per curiam).

35. This Court need not doubt the district court's impartiality to nevertheless believe that reassignment is advisable, "both for the judge's sake and the appearance of justice," given the district court's strong beliefs, and soliciting that Plaintiff acted sanctionably by failing to raise a “plausible” issue. United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977); also see United States v. Quattrone, 441 F.3d 153, 192-93 (2d Cir. 2006). Reassignment is appropriate where the trial judge has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public. United States v. White, 846 F.2d 678, 696 (11th Cir.), cert. denied, 488 U.S. 984 (1988); 109 S.Ct. 537, 538, 102 L.Ed.2d 568 (1988).

REFERRAL OF APPARENT FELONIES TO U.S. ATTORNEY

36. Plaintiff Pamela Carvel twice placed before Judge Scheindlin the very serious assertion of conspiracy, against Pamela Carvel’s Constitutional rights, for profit by lawyers engaged in tax fraud and grand larceny under color of state judge-made law apparently induced by bribery, and conflicts of interest. When faced with overwhelming assertions of lawyers’ corruption and violations of civil rights of Pamela Carvel and others, even when such corruption was substantiated by an investigative lawyer from the disciplinary committee, Judge Scheindlin
ignored the duty under 18 U.S.C. § 4 and 18 U.S.C. § 2382. Judge Scheindlin also allow the New York State Attorney General to proceed with gross conflicts of interest by representing accused offenders in nonjudicial acts against the People.

37. In the most recent hearing, Judge Scheindlin demeaned Plaintiff Pamela Carvel’s allegations and assisted in the obstruction of discovery of the evidence that would prove or disprove Pamela Carvel’s assertion of bribery and conspiracy. It is the mandatory duty of every citizen to report felony activities to the judge. It is the judge’s duty as citizen and lawyer to refer these apparent felonies to law enforcement for investigations and prosecutions that a private individual is not authorized to carry out. Plaintiff Pamela Carvel requests that this Court adhere to the requirements of 18 U.S.C. § 4 and 18 U.S.C. § 2382 and refer this case to the U.S. Attorney for investigation and prosecution.

38. For the foregoing reasons, this Court should exercise its discretion under 28 U.S.C. § 2106 to direct the reassignment of this case on remand to a different district court judge and to refer to the U.S. Attorney the serious matter of apparent bribery and judicial corruption in conspiracy against civil rights.

STATEMENT OF VERIFICATION
I have read the above and it is correct to the best of my knowledge.

DECLARATION UNDER PENALTY OF PERJURY

The undersigned declares under penalty of perjury that she is a party in the above action, that she has read the above, and that the information contained therein is true and correct. (28 U.S.C. 1746, 18 U.S.C. 1621).

August 23, 2010

Respectfully submitted, By: Pamela Carvel
Pamela Carvel, appearing pro se
110 West Ninth Street, Suite 177
Wilmington, Delaware 19801-1618
Telephone 1 954 524 1909


Nervous Corrupt Court Insiders Plant Misinformation

Niece Pamela Carvel vying for ice cream king's fortune frozen out by judge
The New York Daily News by Robert Gearty - August 29, 2010

After a long-running battle with as many twists as a soft-serve cone, the legal war over the estate of ice-cream king Tom Carvel may be drawing to a close. A judge has barred Carvel's niece from bringing any more lawsuits against the estate in Manhattan Federal Court. For years Pamela Carvel, 61, has asserted that she is heir to her uncle's estate, and the estate of her aunt, Agnes Carvel. The claims have been litigated countless times in various state, federal and foreign courts, only to be dismissed as baseless, meritless and defamatory. At one point she unsuccessfully sought to exhume Tom Carvel's body, claiming he was murdered to cover up a multimillion-dollar embezzlement. Judge Jed Rakoff slapped the niece with an injunction Aug. 19 after another federal judge tossed her latest suit against the Tom and Agnes Carvel Foundation. The foundation had sued Pamela Carvel in state court to enforce a cash judgement it obtained against her in England. Acting as her own lawyer, she transferred the case to Manhattan Federal Court and filed a $300 million countersuit, claiming the foundation used fraud and bribery and "procured the death of Agnes Carvel from stress through criminal coercion." Magistrate Judge Michael Dolinger threw out her case and in a 108-page report recommended Rakoff impose sanctions and blocked any more lawsuits. "Any rational litigant in Ms. Carvel's position would certainly have understood that her claims are legally meritless," Dolinger said. If she violates the injunction, she can be cited for contempt of court. Pamela Carvel, who has addresses in London and Delaware, did not return a message. In court papers, she said Dolinger's decision would leave her bankrupt and provide "an international blank check for the fraudsters who are plaintiffs to use to destroy Pamela Carvel." The lawyers for the Carvel foundation, a charitable trust, Joan Magoolaghan and Kevin Stevens, declined comment. When Tom Carvel died in 1990 his ice cream empire consisted of 850 stores. He was well-known for his gravelly voiced TV commercials and creations like Cookie Puss and Fudgie the Whale. He and his wife intended that their estates be left to charity. Pamela Carvel was an executor of her uncle's estate but was removed for the misappropriation of $2 million. After Agnes Carvel died in 1998, Pamela Carvel brought forth a 1995 will in which she was left her aunt's entire estate. The will was declared invalid, but she obtained a judgement in London against the foundation for $15 million. When she sought to enforce the judgment in Florida and Nassau County, foundation lawyers blocked her - then had the London judgement vacated. rgearty@nydailynews.com

Sunday, August 29, 2010

Another Crime Against A Family By A New York Attorney

104-year-old heiress gave lawyer 'millions' in gifts
The New York Post by Dan Mangan - August 29, 2010

A 104-year-old heiress lavished "millions" of dollars in gifts on the family of her lawyer, who is now under investigation for his handling of her finances as she lives out her days in a Manhattan hospital, an ex-employee told The Post. Huguette Clark once bought at auction a dol lhouse worth well more than $10,000 for lawyer Wallace Bock's grand daughter, and gave him a check for about $1.5 mil lion to build a "bomb shel ter" for a settlement in Israel where his daughter and her family live, two people said yesterday. Bock's co-workers were so amused by his reliance on the copper heiress that they once gave the estate lawyer a purported signed copy of her last will and testament -- which named him as a big beneficiary -- at the firm's holiday party, said Bock's former paralegal, Cynthia Garcia. "It was a joke," said Garcia. Bock, after initially being stunned because he thought it was the real deal, then realized the document was phony, Garcia said. "But he kept it," she added. The Manhattan District Attorney's Office is aggressively investigating Bock, 78, and Clark's accountant, Irving Kamsler, 63, for allegedly mismanaging Clark's $500 million fortune. Kamsler is on probation for attempting to send porn via the Internet to an undercover detective posing as an underage girl. "What they're doing to her is horrible," Garcia said, referring to Clark and her millions. Garcia said Bock called her Thursday night -- after years of no contact -- and asked her not to discuss with anyone his dealings with Clark. He also allegedly asked if she had gone on "vacation recently." "He sounded patronizing . . . and so desperate to placate me," Garcia said. Hours later, the DA's Office called Garcia and left a message asking to speak with her, she said. Bock's spokesman, Michael McKeon, said, "After more than 50 years as an attorney, Wally Bock has an excellent reputation and an unblemished record. Any inquiry will confirm that all matters have been handled appropriately and consistent with Ms. Clark's wishes." "We believe Ms. Garcia is confused about the facts," McKeon said. Kamsler refuses to comment. Clark, whose US senator-father was America's second richest man in the early 1900s, has spent more than 20 years living in New York City hospitals, and is currently at Beth Israel Medical Center. Meanwhile, her 42-room Fifth Avenue apartment is unoccupied, and her lavish mansions in California and New Canaan, Conn., have been vacant for more than 50 years, costing her millions of dollars in maintenance and taxes. Garcia said Bock has several daughters and grandchildren living in Israel, and that after 9/11 he had Garcia write to Clark asking for $1.5 million to "build a bomb shelter" in Israel. "He was not asking other people" for money, Garcia said. "In less than an hour," they received a check in that amount from Clark, Garcia said. A source close to Bock confirmed that Clark, for the purposes of building a security system to protect against a terror attack, had made the substantial donation to the West Bank settlement where Bock's daughter and grandchildren live. The donation was initially held in escrow by a lawyer there before the shelter was built, the source said. With Rebecca Rosenberg, Laura Italiano, Sabrina Ford and Jeane MacIntosh

City Prosecutor Charged With DWI and Reckless Driving

Bronx ADA Charged With DWI, Reckless Driving
NY1 News - August 28, 2010

A Bronx assistant district attorney was arrested after she got into a car accident, allegedly after drinking. The Bronx district attorney's office said Jennifer Troiano, 34, was charged with three counts, including driving while intoxicated and reckless driving. Investigators said Troiano was involved in a minor three-car accident late Thursday on the Major Deegan Expressway near 167th Street in the Bronx. The district attorney's office office has requested a special prosecutor for the case.

Saturday, August 28, 2010

Party Time Continues For White-Collar Crime

Lawyers for Joseph L. Bruno, a former New York State Senate majority leader found guilty of fraud last year, are preparing an appeal of his verdict while the Justice Department decides how to proceed.

Last week, lawyers for David Zachary Scruggs asked a federal judge in Mississippi to vacate his conviction relating to a judicial bribery scheme involving him and his former law partner and father, the trial lawyer Richard Scruggs. (The younger Mr. Scruggs served a 14-month prison term; his father is serving a seven-year sentence.)

The White-Collar Pushback After the Skilling Ruling
The New York Times - LEGAL - by Peter Lattman - August 25, 2010

On Friday afternoon, a federal judge swore in Barry Grissom as the new United States attorney in Kansas. Just hours later, his office filed a motion to dismiss its highest profile criminal case, a seven-year-old corporate fraud prosecution against two former top executives at Westar Energy, the state’s largest electric utility. The reason? The United State Supreme Court’s ruling in June that narrowed the scope of the theft of “honest services” statute left him with little choice but to drop the charges, Mr. Grissom said in a short statement. “The law no longer supported our position,” he said. “We were duty bound not to go forward with the prosecution.” The decision to dismiss the Westar case — among the first “honest services” prosecutions the government has dropped since court’s decision — underscores the challenges facing the government in the wake of the Supreme Court ruling. Over the last two decades the Justice Department has aggressively used the “honest services” law to bring fraud charges against an array of defendants, including local politicians accused of graft and corporate executives charged with looting their companies.

On June 24, the Supreme Court ruled that a section of the 1988 federal fraud statute making it a crime to deprive others “of the intangible right of honest services” was unconstitutionally vague. The court, ruling on three cases — including ones against Jeffrey K. Skilling, the former chief executive of Enron, and the newspaper mogul Conrad M. Black — narrowed the scope of the law. It ruled that an honest services prosecution required more than an allegation of an undisclosed conflict of interest or self-dealing on the part of a business executive or politician. Instead, the court said that prosecutors must prove that defendants received bribes or kickbacks. “In its heyday, the honest services theory allowed prosecutors to pursue sleaziness of all sorts without identifying a victim who lost property or money,” said Daniel Richman, a criminal law professor at Columbia Law School. “Now the Supreme Court decision has thrown a large wrench into the system and the Justice Department finds itself with the prospect of reversals and abandoned cases.” In the two months since the court’s ruling, defense lawyers across the country have filed, or are prepping, a flurry of pleadings asking judges to vacate convictions or reopen cases against their clients. A Justice Department spokeswoman said the agency did not keep statistics on how many motions or appeals had sought relief since the Supreme Court ruling, but anecdotal evidence suggests that the agency is now faced with defending a raft of earlier decisions.

Some requests have succeeded. A federal appeals court in Chicago set Mr. Black free on bail while he awaits an appeals court ruling on whether to reverse his conviction. Last month, a federal judge in New Jersey vacated the federal fraud conviction of Joseph A. Ferriero, former chairman of the Bergen County Democratic Organization, after his lawyers argued that his indictment was legally flawed in the wake of the Supreme Court ruling. But in other prosecutions, judges have rejected defense lawyers’ pleas to drop cases against their clients. This month, a federal judge in Washington refused to dismiss a case against Kevin A. Ring, a former lobbyist facing a second trial on corruption charges after his first ended in a hung jury in October. In July, a federal judge in Michigan allowed a bribery case against a school superintendent to go to trial, rejecting a request by his defense lawyers to dismiss the case in light of the Supreme Court’s ruling. Other cases hang in the balance. Lawyers for Mr. Skilling have asked a federal appeals court to release him from prison. Lawyers for Joseph L. Bruno, a former New York State Senate majority leader found guilty of fraud last year, are preparing an appeal of his verdict while the Justice Department decides how to proceed. Last week, lawyers for David Zachary Scruggs asked a federal judge in Mississippi to vacate his conviction relating to a judicial bribery scheme involving him and his former law partner and father, the trial lawyer Richard Scruggs. (The younger Mr. Scruggs served a 14-month prison term; his father is serving a seven-year sentence.)

A spokeswoman at the Justice Department in Washington declined to discuss the agency’s position on honest services prosecutions. But legal experts say that the change in the law won’t prevent the government from prosecuting financial crimes. Federal prosecutors still have an array of tools to pursue corporate or political corruption, like the wire fraud and mail fraud statutes to sections of the Sarbanes-Oxley Act of 2002. “The honest services statute is just one arrow in the government’s quiver,” said David Seide, a lawyer at Curtis, Mallet-Prevost, Colt & Mosle in Washington.”But we’re already seeing the Skilling decision have a real-world effect, and the Justice Department has been and will be more cautious in bringing these cases.” Senior Justice Department officials in Washington played an active role in determining the fate of the Westar prosecution, according to two people close to the case who requested anonymity because they were not authorized to speak about the case. The government had particular concerns about the nearly seven-year-old Westar indictments in light of the Supreme Court’s ruling, these people say. The case against the two defendants, the former Westar executives David C. Wittig and Douglas T. Lake was set to go to trial for a third time on Sept. 20. The defendants are two New York investment bankers who had moved to Kansas to take senior posts at Westar, based in Topeka.

In December 2003, the government indicted the two men on charges that they looted the company by, among other things, using corporate aircraft for personal use and failing to disclose it to securities regulators. After a 2004 mistrial, in September 2005, a jury convicted Mr. Wittig and Mr. Lake. A federal judge sentenced Mr. Wittig to 18 years in prison and Mr. Lake to 15 years. They appealed their convictions, and in January 2007, the federal court of appeals in Denver tossed their convictions on the grounds that prosecutors failed to prove their case. The dismissal allowed for a retrial on narrow grounds of conspiracy and circumventing internal controls, and the federal prosecutors in Kansas decided to try them a third time. Last month, a team of seven lawyers representing Mr. Wittig and Mr. Lake met with federal prosecutors in Washington. Lanny Breuer, the head of the Justice Department’s criminal division, attended the 90-minute meeting, at which the effect of the Supreme Court’s ruling on the case was discussed at length, according to two people in attendance who requested anonymity because they were not authorized to discuss the meeting. The legal travails of the two former Westar executives are not over, however. The company says it will pursue civil claims in an arbitration proceeding to recoup the expenses it has incurred paying the legal bills of their former employees.

Friday, August 27, 2010

Cleavage-Crazed Judge Quits After Massive Porn Found on Work Computer

Manhattan Judge James Gibbons quits after massive porn cache is found on work computer
The New York Daily News by Melissa Grace, Alison Gendar and Larry McShane - August 27, 2010

A cleavage-crazed criminal court judge - who fathered a son with a young Legal Aid lawyer - quit after officials found a massive porn stash on his work computer, sources said Thursday. Disgraced Manhattan jurist James Gibbons, a whip-smart ex-prosecutor who once convicted rapists and killers, fired off a terse resignation letter last week after the nasty cache was uncovered. "There was a lot of porn on his computer - all young women," an investigator told the Daily News. "Lots of crotch and cleavage shots." The Manhattan district attorney's office is scouring the vile files to determine if criminal charges are warranted - and are checking whether any of the women are underage. Gibbons, 47, already had raised eyebrows with his ethics-skirting romance with Legal Aid lawyer Jeanne Emhoff, 31, who he fathered a son with weeks ago. Emhoff's Facebook page, which was pulled down Thursday, featured a photo of a man with a boy on his shoulder. The porn revelation staggered the baby's grandparents. "This is going to break her heart," Emhoff's stepdad said of his wife. "She thinks the world of Jim. ... This will destroy my wife." Gibbons - who was not arrested - was caught when a computer-monitoring system in the courthouse red-flagged his courthouse terminal, a law enforcement source said. He was on paternity leave when the images were discovered and the computer seized. During the 14 years he worked in the Manhattan district attorney's office, Gibbons was well-known for his efficient handling of street crimes. He also enjoyed a good reputation on the bench after his December 2001 appointment by departing Mayor Rudy Giuliani. "He was a very careful judge on the law," lawyer Adam Freedman said. "If he was using his state-issued computer for illegal activities, it would be uncharacteristic, considering how careful he is on the law." Despite the possible conflicts of interest between Gibbons and Emhoff, a source close to the case said, their affair was unrelated to the investigation. "There is absolutely no link between the judge's relationship with Jeanne Emhoff and any alleged criminal activity," the source said. "One has nothing to do with the other." It was unclear when the porn was found on the disgraced judge's computer, but sources said its discovery was just routine. "In government agencies, and in many private sector firms, employers are able to monitor employee computer usage," a source said. Gibbons quit his position with a simple three-paragraph letter that offered no clues to his sudden nightmare. "It has been a privilege to serve as a judge of the Criminal Court of the City of New York," he wrote. "Please accept this letter as a statement of my resignation of that office effective today." mgrace@nydailynews.com - With Edgar Sandoval, Irving DeJohn and Michael J. Feeney

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Manhattan criminal judge investigated for possible underage porn
The New Post by LAURA ITALIANO, JOSEPH GOLDSTEIN and LARRY CELONA - August 26, 2010

A highly-respected Manhattan judge -- already on paternity leave after fathering a child with a Legal Aid lawyer -- has resigned and is under investigation after officials found questionable pornography on his work computer, The Post has learned. The ex-judge, James Gibbons, who handles misdemeanor and pre-indicted criminal cases, was already on thin ice ethics-wise after impregnating the public defender -- a possible conflict of interest had she appeared before his bench, multiple sources involved in the investigation told The Post. Then court officials learned earlier this month that he had been surfing questionable pornography sites, and, suspecting the porn could involve underage girls, turned the matter over to the DA's office while both the lawyer -- Jeane Emhoff, a pretty blonde ten years his junior -- and the judge were on leave caring for their new son, sources said. Gibbons, 47, resigned Aug 17. A Harvard-educated former prosecutor with the Manhattan DA's appeals bureau and a Giuliani appointee, he is widely regarded as a learned and methodical jurist. His high-profile defendants have included Naomi Campbell -- for whom Gibbons nearly issued a bench warrant when she missed a court date on charges she flung a cell phone at a maid . Investigators said rumors were already swirling about the judge drinking during non-work hours with a clique of Legal Aid lawyers -- public defenders who represent many of the defendants before him, sources said. Then Emhoff became pregnant. "He likely would have faced judicial sanctions for that -- even though it's not illegal," said one law enforcement source. "It was only after one of them got pregnant, and it came out that he was the father, that they began investigating him for possibly not recusing himself," said another law enforcement source said. "Then Bam!" said the source. "They come across child pornography." Gibbons' supporters at 100 Centre Street, where he worked, said he and his girlfriend plan to marry and are raising their son together. Gibbons could not be reached for comment; Emhoff declined comment when approached by reporters at the couple's Park Slope apartment. Office of Court Administration spokesman David Bookstaver declined to comment on the matter, other than to say, "When we become aware of a possible crime, we refer such issues to the appropriate authorities." Gibbons could not immediately be reached for comment. Erin Duggan, a spokeswoman for the Manhattan DA's office, said it was office policy not to confirm whether someone is under investigation. Rebecca Harshbarger contributed to this story.

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Manhattan Judge Resigns Abruptly
The New York Law Journal by Noeleen G. Walder - August 27, 2010

A veteran Manhattan Criminal Court judge has abruptly quit. James D. Gibbons' Aug. 17 letter of resignation gave no reasons for his decision, court system spokesman David Bookstaver said yesterday. "It has been a privilege to serve as a judge of the Criminal Court of the City of New York since my appointment in December 2001," Judge Gibbons wrote. "Please accept this letter as a statement of my resignation of that office effective today." Judge Gibbons was appointed to the Brooklyn bench by Mayor Rudolph Giuliani and reappointed in December 2002 by Mayor Michael Bloomberg. He moved to Manhattan in 2003. A graduate of Harvard School of Law, he spent 13 years in the Manhattan District Attorney's Office before becoming a judge. Criminal Court has been hammered by heavy backlogs, but Judge Gibbons had been on paternity leave since the birth of a son in July, so other judges already were covering for his absence. Judge Gibbons has been involved in a relationship with a Legal Aid attorney. Patricia Bath, a spokeswoman for the group, said the lawyer, whom she would not identify, had followed Legal Aid policy by disclosing "her close relationship with the judge to her supervisors, and she did not appear in cases before him." Several defense attorneys praised Judge Gibbons' performance on the bench. "He was one of the smartest judges around," said Amelio P. Marino. Adam Freedman added that Judge Gibbon's was "a very careful judge who made sure everything was exactly right." Both the New York Post and Daily News quoted unnamed law enforcement sources as saying pornography had been found on the judge's work computer. Judge Gibbons did not answer the door at his Brooklyn apartment last night and could not be reached for comment. A spokeswoman for the Manhattan District Attorney's Office declined to comment.


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Thursday, August 26, 2010

Judge Imposes $1.96 Million in Sanctions Against Big NYC Lawfirm

N.J. Judge Imposes $1.96 Million in Sanctions Against Paul Weiss, Lowenstein for Frivolous Claims
The American Lawyer by Andrew Longstreth - August 26, 2010

Rebuffing arguments for leniency from Paul, Weiss, Rifkind, Wharton & Garrison and Lowenstein Sandler, a Bergen County, N.J., judge has ordered the two firms to pay $1.96 million in sanctions to defendants in a suit they filed on behalf of billionaire Ronald Perelman in a family dispute over hundreds of millions of dollars. "Paul Weiss and Lowenstein Sandler argue that since they are both such important, well-regarded law firms, the mere finding that they engaged in frivolous litigation is deterrence enough," Superior Court Judge Ellen Koblitz wrote in Estate of Claudia Cohen v. Robert Cohen. "They argue that this court's finding of frivolous litigation has been widely publicized and besmirches their reputation, which will cost them untold, unspecified damages. A monetary sanction, however, is clearly appropriate here." At the same time, she suggested that the dispute had been so complex, lengthy and hard-fought that even after paying the sanction, the firms might still take home a profit for their efforts. The sanctions order and the monetary award stem from a 2008 suit filed by Mr. Perelman, acting as executor of the estate of his ex-wife, Claudia Cohen, and their daughter, Samantha Perelman. The Perelmans claimed that Robert Cohen—Claudia's father, Samantha's grandfather, and the former CEO and chairman of the Hudson Group—made an oral promise to Claudia before 1978 to leave her or her children as large a share of his estate as Claudia's brother, James Cohen. The Perelmans also alleged that James Cohen had exerted undue influence over Robert in an effort to obtain a transfer of $500 million from his father. It was a bitterly fought case in which the Perelmans' lawyers contested the competence of Robert Cohen, who is 84 years old and suffering from a Parkinson's-related disorder. Last year, after 11 weeks of trial, Ronald and Samantha Perelman came up empty on their claims. In August 2009, Judge Koblitz dismissed what was left of their case. On June 9, the judge ruled that the defendants were entitled to sanctions (NYLJ, June 16). They requested $4.5 million in attorney fees for the part of the litigation the judge found to be frivolous. On Friday, she ordered payments of $554,766 for James Cohen and $1,406,215 for Robert Cohen. Even though Judge Koblitz had permitted the case to proceed to a trial, she nonetheless found in her latest ruling that the Perelman attorneys received plenty of warning that the suit was frivolous. She said, for instance, that in March 2009 she reminded the firms of the evidentiary hurdle they would have to clear. At that point, she said, the Paul Weiss and Lowenstein lawyers should have recognized that the available evidence did not support their assertion of an oral promise from Robert Cohen to Claudia. From that point, the attorneys' continued efforts to press the suit were frivolous, she concluded.

Lack of Remorse

Moreover, Judge Koblitz found that the firms were not sufficiently repentant for their conduct. She noted that both have said they plan to appeal her sanctions ruling and neither has acknowledged any wrongdoing. "Without remorse, or any acknowledgement of wrongdoing, how can [the firms] reassure the court that the behavior will not reoccur," Judge Kobler asked. "How will they recognize frivolous litigation and avoid it next time?" While Lowenstein has established an internal system to prevent the filing of future frivolous litigation, she noted, Paul Weiss has not taken any action. "[Paul Weiss lawyers] claim never to have been found to have engaged in frivolous litigation in the one hundred year history of the firm," the judge wrote. "They argue that it will not happen again because it did not happen before. Of course, firms change lawyers and practices. Without recognizing and addressing a problem, it is hard to be sure that it will not resurface. A sufficient monetary sanction is necessary to impress upon counsel the need to make greater efforts to avoid frivolous litigation in the future." The judge noted that defendants reported that their attorneys' fees for the entire case had been close to $15 million and that the fees for the Perelmans' counsel had probably been higher, "given that they utilized the services of approximately twice as many lawyers and a higher percentage of New York (higher billing) counsel." Thus, the judge observed, "Given the extraordinary legal efforts put into this case and consequent extraordinary billing, as well as the deep pockets of the parties, this court strongly suspects that plaintiffs' firms will indeed profit, at least in the overall litigation, if not the frivolous portion, even after paying the $1,960,981.00 here imposed." Paul Weiss chairman Brad Karp said in statement: "We believe the lower court's decision and monetary award are unjustified. We firmly believe that the representation we provided our client was proper and appropriate and we will appeal the judge's decision." Lowenstein Sandler managing director Gary Wingens also issued a statement. "Lowenstein Sandler acted properly at all times in representing its client in this matter," he said. "We believe that this decision is contrary to established law and may have the unfortunate consequence of chilling effective advocacy in this jurisdiction. We fully intend to appeal the court's ruling." Robert Cohen was represented by Wilson, Sonsini, Goodrich & Rosati. Decotiis, FitzPatrick & Cole represented James Cohen. Paul Weiss represented itself. Orloff, Lowenbach, Stifelman & Siegel represented Lowenstein.

Andrew Longstreth is a reporter for The American Lawyer. He can be reached at alongstreth@alm.com.

Continuing Attorney Greed Begs Shelly Silver's Departure

The Speaker's cash grab
The New York Post - EDITORIAL - August 24, 2010

Leave it to Assembly Speaker Sheldon Silver and his tort-lawyer buddies to grab for a cash bonanza in 9/11-related lawsuits -- at the expense of Ground Zero workers. Talk about gaming the system. As The Post's Joseph Goldstein and Susan Edelman reported Sunday, Silver and his partners -- tort-law kings Perry Weitz and Arthur Luxenberg -- are involved with an outfit that lent millions to the law firm representing 9,800 Ground Zero workers with toxic-illness claims against the city. Weitz and Luxenberg are the top directors of Counsel Financial Services, a lending business that provides up to $10 million -- at 18 percent annual interest -- to law firms that need up-front cash for cases expected to pay off big. Silver has made two loans to Counsel totaling at least $50,000 -- possibly much more -- though neither his office nor the firm will say how much, insisting "he doesn't know where the money goes." That's not surprising -- Silver has long refused to reveal details about his outside job serving "of counsel" at Weitz & Luxenberg, including those regarding his clients and salary. But the real kicker here is that the law firm that pressed the lawsuit -- and that now stands to reap nearly $200 million out of the proposed $712 million settlement -- expects the Ground Zero workers to pick up the tab for that 18 percent interest it's been paying. That could cost individual plaintiffs thousands of dollars each. Which is why Manhattan Federal Court Judge Alvin Hellerstein, who's been presiding over the case, has set a hearing for next week to determine whether the lawyers are overcharging. Now, Silver may have had no role in the law firm's move -- but why do such actions always seem to involve him, even indirectly? It makes his refusal to discuss his outside income all the more outrageous. As the New York Public Interest Research Group, with which we rarely agree, rightly declares: "There's an ethics black hole when it comes to these issues" involving Silver. Which only underscores why cleaning up the Albany ethical cesspool has to begin with the speaker of the Assembly.

Thursday, August 12, 2010

Judge Transferred Over Alleged Actions in Visitation Case

Judge Transferred Over Alleged Actions in Visitation Case
The New York Law Journal by Mark Fass - August 12, 2010

A Suffolk County judge who was the subject of a searing complaint by a children's advocacy group has been transferred from Family Court to the County Court's civil term. A court source called the immediate transfer "unprecedented" and an indication of the how seriously the allegations are being taken by the Office of Court Administration. According to the complaint, Judge Andrew G. Tarantino Jr. granted a father who had been convicted of possessing child pornography and third-degree rape of a minor overnight visitation of his three children, supervised by his own parents. During the visitation hearing in January, Judge Tarantino joked about child pornography, misstated the facts of the case, refused to hear expert testimony regarding sexual-abuse recidivism and maintained an "inappropriate" relationship with the father's attorney, according to the complaint. The complaint was filed Tuesday with the New York State Commission on Judicial Conduct by Parents for Megan's Law and the Crime Victims Center, a Long Island advocacy group. It was also forwarded to the OCA, which is independent from the commission. The OCA transferred the judge out of Family Court on Monday, based on the allegations underlying the complaint. A spokesman for the OCA said he could not discuss the grounds for transferring judges and that the court system could take no further remedial action. "This is a matter for the Commission on Judicial Conduct," spokesman David Bookstaver said. "The courts by statute cannot discipline or punish judges." Robert Tembeckjian, the conduct commission's chief administrator, said he could not comment unless and until a sanction is issued or a judge waives confidentiality. Judge Tarantino, 57, declined to comment.

The complaint against the judge alleges numerous instances of bias and inappropriate comments during a child custody proceeding earlier this year. The judge held a four-day hearing in January and issued an eight-page decision in April. The father, Dennis DeMille, a former middle-school teacher, is a registered Level II sex offender. He pleaded guilty to possessing pornographic photographs of 12- to 16-year-old girls, and sexually victimizing a minor. The children's mother, who is not named in court records, had contacted the Parents for Megan's Law in November 2009 to complain about the judge's behavior.

The group in its complaint said "Judge Tarantino has exhibited a bias and a blatant disregard for the facts." The complaint cited such examples as the judge's joke that, to get around a law that prohibits replicating child pornography for court records, a court officer could "do little stick pictures" duplicating the images underlying the father's child-pornography conviction. "You can do an artist's rendition," the judge joked. Judge Tarantino asked to view the photos to determine whether they were "pieces of art or pornography," notwithstanding the father's conviction. The judge then never ruled on the issue, the complaint said. It describes the judge joking about the treatment methods for sexual addiction, asking whether "a little electronic device" might be placed in a patient's keyboard. The judge's decision to allow Mr. DeMille supervised overnight visits quoted his therapist as saying "the father is not a predator," when the therapist had declined to rule out that possibility, the complaint alleged.

The OCA rarely moves so quickly to transfer a judge, the only remedial power it holds. After Brooklyn Family Court Judge Robin Sheares jailed a mother for refusing to facilitate visits between her son and his father, a thrice-convicted rapist, OCA took three weeks to transfer her to Civil Court. Judge Tarantino forwarded through a court spokesman a corrected copy of his order in the underlying case. "This case presents with the issue of when and if a sex offender should be able to have a normal relationship with his children?" the judge wrote in Matter of D.D. III, 13176-07. "[T]he children are entitled to grow with and have as normal relationship with their Father as is possible under these circumstances. To consider sinister every activity in which there may be contact may approach paranoia in some circumstances. This court cannot render a decision based upon paranoia." Judge Tarantino was elected to Family Court in 2006 and took the bench in 2007. A 1991 graduate of City University of New York School of Law and a registered Democrat, he worked as a solo practitioner specializing in family law from 1991 to 2000 and as a partner at Long Island's Sarisohn Law Partners from 2000 to 2004. He was an assistant county attorney assigned to Suffolk Family Court from 2004 through 2006. Mark Fass can be reached at mfass@alm.com.

Blog Archive

See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:


               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
         
               CLICK HERE TO SEE Part 1
               CLICK HERE TO SEE Part 2