Despite Lapses, OCA Shuns Tracking Judges’ Hours

The New York State judiciary’s submission of a proposed budget this year has had the unexpected result of shining a light on the widespread public perception that many judges do not work a full day.

The New York Post has cited a “court source” as saying that judges “closing up shop early” is a “pervasive problem.” Similarly, a court insider told me that the problem is “widespread.”

When the Office of Court Administration (OCA) submitted its budget request earlier this year, Governor Andrew Cuomo refused to pass it on to the Legislature unless the judiciary agreed to an audit of judges’ hours.  OCA sought a 2.5 % increase in its budget, but the Legislature only approved a 2 percent increase, which amounted to $44.4 million for the year.

Judges’ failure to work full days is causing delays in the handling of cases, Cuomo claimed in demanding the audit.

Chief Judge Rule 3.1 directs that all state funded courts “shall commence not later than 9:30 a.m. and conclude not earlier than 5 p.m.” i.e. seven and one-half hours with an hour off for lunch. Chief Administrative Judge Lawrence K. Marks has authority to authorize variances from that schedule, but daily court sessions must total “not less than six hours.”

OCA’s response to the Governor’s call for an audit of the hours that judges put in each day has been anemic at best.

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Corruption in the First Department McGuire’s  Conduct Raises Questions

The circumstances surrounding the forced resignation of Melissa Ringel on April 20th , who had headed the Appellate Division, First Department’s program for mediating appeals has raised questions about former Appellate Division Justice James M. McGuire’s conduct after he left the bench in 2011 and joined the Dechert law firm. He is now a partner at Holwell Shuster & Goldberg.

Ringel resigned following the release of a report  by the Office of Court Administration (OCA) faulting her and her husband, Frank Esposito, for issuing an unauthorized “opinion,” which aided one of Esposito’s clients.  The OCA Inspector General’s report rebuked her for conduct that was “extremely troubling and at the very least creat[ing] an appearance of impropriety.”

Ringel had been McGuire’s law clerk for several years while he sat in the First Department.

Ringel’s conduct was highly irregular. According to her deposition testimonyshe acted to aid Esposito’s client without a referral for mediation from a panel of the court. Her job as chief mediator for the court was to enable it to pare down its caseload by attempting to mediate appeals, which the court designated as appropriate for a negotiated resolution.

Moreover, the manner in which Ringel freelanced the mediation violated one of the basic norms of American jurisprudence: that all parties (except in an extreme emergency) must be informed of court proceedings and be given an opportunity to be heard.

Questions about McGuire’s conduct are raised because he used Ringel’s opinion, despite being aware of its being unauthorized, to advance a client’s appeal before the Appellate Division, First Department.

McGuire did not respond to an email requesting comment.

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Read Dan Wise’s Article in WhoWhatWhy About Wayne Barrett, Blinkered Donald and What Could Have Been

Documents recently released by the federal appeals court in Manhattan show the in 2011 it barred two New York lawyers from talking to the late Wayne Barrett, a prize-winning Village Voice reporter. But for the court’s bar, Barrett would have had another huge scoop as Trump was weighing a run for president: Trump was enmeshed in a web of tangled financial ties which could have exposed him to prosecution for violating U.S. banking laws.

Read the story here.

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Clues that Conduct Commission Is Scrutinizing McMahon

There is good reason to believe that Staten Island Justice Judith N. McMahon is under investigation by the New York State Judicial Conduct Commission, the only official body with the power to punish judges for misconduct.

On Dec.19, the New York Law Journal reported that Chief Administrative Judge Lawrence K. Marks ended any hope that McMahon might have had of returning to her old job as the Administrative Judge in charge of civil cases at the Staten Island branch of the Supreme Court when he named Justice Desmond Green as the court’s next administrative judge in charge of both criminal and civil cases.

That decisive and irreversible step could have telegraphed a Commission investigation for two reasons. First, the Commission has the authority to commence investigations on its own initiative without first receiving a complaint. The Commission has also frequently undertaken such investigations after press reports have surfaced indicating judicial misconduct.

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Judge’s Lawyer Uses Unidentified Source to Tar Pulizotto

On Friday (Dec. 15) the flamboyant lawyer, Richard A. Luthmann Jr., was arrested on charges of defrauding buyers of scrap metal. Justice Judith P. McMahon’s lawyer is attempting to use Luthmann’s bombshell arrest to discredit whistleblower Michael Pulizotto, who is the main witness against his client.

Luthmann had been representing Pulizotto in a libel lawsuit filed against Dennis Quirk, the leader of  the New York State Court Officers Association in the wake of the infamous “Day of the Rat” at the St. George courthouse.

Luthmann’s arrest, despite the shocking charges, has no bearing on whistleblower Michael Pulizotto’s credibility, whose covertly recorded audio-tapes form the core of the ongoing probe of Justice McMahon.

On Monday (Dec. 18), Pulizotto released a statement announcing that he has severed his relationship with Luthmann and that he expects to be retaining a new lead lawyer shortly. In his statement, Pulizotto said Luthmann’s arrest came as “a complete shock to me” and “it is obvious that Richard must focus on what will be a tremendous fight for him personally.”

As reported in WiseLawNY last week, the Office of Court Administration’s Inspector General’s Office has an active investigation of McMahon’s role in undermining an order that OCA issued in 2015 to protect the public confidence  in the neutrality of the court after McMahon’s husband, Michael E. McMahon, was nominated in 2015 to become the Democratic candidate for Staten Island’s district attorney.

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SI Administrative Judge Still Faces IG Questions

 

Staten Island Administrative Judge Judith P. McMahon is not out of the woods yet.

Last September, McMahon and her court’s chief clerk, Michael Pulizotto, were both mothballed to lesser jobs in Manhattan after Dennis Quirk, the head of the New York State Court Officers Association, went on a tear because word had leaked out that Pulizotto was the source of information provided to the Office of Court Administration’s Inspector General’s (IG) Office.

On Sept.7, Quirk brought the parade-sized balloon, “Scabby, the Rat,” to the Staten Island courthouse to expose Pulizotto’s role in providing tapes that he covertly recorded, which contained evidence that McMahon had violated a rule, promulgated by the Office of Court Administration, to prevent a sticky situation involving McMahon and her husband, Michael E. McMahon, who is now Staten Island’s District Attorney.

In the aftermath of “Rat’s” appearance, McMahon was re-assigned to Manhattan where her job is to attempt to settle cases before they are cleared for trial. Mediation work of this nature is often done by law clerks working for the court system.

On Nov. 9, Lucian Chalfen, OCA’s chief spokesperson, told the Staten Island Advance that the IG’s office had completed its investigation and issued a report. This created an impression that McMahon had been cleared.

But, Chalfen added a wrinkle when I (WiseLawNY is a one man operation) asked him why McMahon was still mediating cases on Nov. 30 — the dated that I visited McMahon’s Manhattan courtroom (Room 422). Chalfen responded in an email, which amended his prior statement to the Staten Island Advance, to disclose that “certain aspects” of the investigation “remain open.”

When I contacted McMahon’s attorney, John P. Connors Jr. for comment on Monday (Dec. 11), he said that it is “completely inaccurate” to report that McMahon still faces questioning from the IG’s office. To the contrary, he said, she has been doing “exemplary work” in Manhattan and has been told by both Chief Administrative Judge Lawrence K. Marks and Deputy Chief Administrative Judge George J. Silver that she could return as Administrative Judge in Staten Island “anytime she wants.

Connors, the head of the the Second Department’s Grievance Committee for Brooklyn, Queens and Staten Island, noted that, in addition to mediating cases in Manhattan, McMahon has been responsible for handling medical malpractice discovery and all foreclosure cases in Manhattan.

With regard to the question of whether a commitment had been made that McMahon could return to Manhattan at her option,  Chalfen, OCA’s press officer, responded in an email, “Neither Judge Marks nor Judge Silver assured Judge McMahon or her attorney that she could return to Staten Island whenever she wanted.”

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Breaking News: Court of Appeals Gives Friedman Another Shot

As WiseLawNY predicted after oral argument on Oct. 18, the New York Court of Appeals today ruled that Jesse Friedman, who served 13 years in prison for molesting pre-adolescent boys attending an after-school computer class in his home should be given another chance to get prosecution records under New York’s Freedom of Information Law (FOIL) in his quest to establish his innocence.

In a 5-2 decision written by Judge Jenny Rivera, the Court ruled that the Second Department had applied the wrong standard in ruling that prosecution records were not required to be disclosed under New York’s FOIL.

Rivera found that the standard applied by the Second Department was out of line with the test used in the other three departments of the Appellate Division as well as the test employed in the federal Freedom of Information Act (FOIA).

The rejected Second Department test had barred the disclosure of any information from prosecution files in cases that do not go to trial. The other three departments require the release of information from prosecution files under FOIL unless there is an express or implied promise that the information will remain confidential.

The court remanded that the matter to the trial court to determine which documents could be withheld on the basis of an express or applied promise of confidentiality.

The trial judge, Justice F. Dana Winslow, had ruled in 2013 that “every scrap of paper” in the prosecution’s file should be turned over to Friedman because the prosecution had failed to turnover to the defense massive amounts of materials that might have aided Friedman in making his decision in 1988 whether to plea guilty.

Winslow, however, retired from the bench at the end of 2015.

In dissent, Justice Gerald Whalen, who sat by designation from the Third Department, proposed a much more searching inquiry in cases, “involving sensitive matters such as alleged sexual offenses committed against children.” Judge Michael Garcia joined the dissent.

Friedman’s lawsuit to establish his innocence is pending before a second Nassau County Supreme justice, Terrence P. Murphy, but that case has been on hold as the appeal winded it way to today’s (Nov. 21) ruling. Murphy will presumably have to sift through the documents in the prosecution’s file to determine which ones are protected from disclosure by an express or implied promise of confidentiality.

©DanielJWise2017

 

 

 

 

 

 

 

 

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Friedman Gets Good Vibes at Court of Appeals

In the 16 years since Jesse Friedman, the subject of an Oscar-nominated documentary, was released from prison in 2001, he has sought—largely without success—to clear his name of sexually abusing young boys who took after-school computer lessons in his home.

But, Wednesday, he must have enjoyed a rare moment of hope as four of seven judges on New York’s Court of Appeals sent clear signals that they were likely to revive his quest to get access to the records compiled by the Nassau County District Attorney’s Office prior to his guilty plea in 1988.

His path forward still appears clouded, however, since the entire panel struggled with question of how his claim for the records should be assessed, should they decide — as seems likely — that the Brooklyn-based Appellate Division, Second Department erred in throwing his case out of court.

Friedman is seeking to use New York’s Freedom of Information Law (FOIL) to obtain the prosecution records he needs to prove his claim that he is actually innocent of the sex crimes he pleaded guilty to. That is a tall order.

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Sater Wins $70 Million Tax Fraud Suit

Felix Sater, who is in the crosshairs of Special Prosecutor Robert Mueller, dodged a bullet on Wednesday when State Supreme Court Justice Charles E. Ramos booted a $70 million tax fraud case brought by his two longtime foes, New York lawyers Frederick Oberlander and Richard E. Lerner. The case had been brought as a private action under NY law, which authorizes a private citizen to sue to recover funds owed to the state and to retain a portion of any recovery (NY Fin. Law Sect. 187 et seq.)

My story was published on the WhoWhatWhy.org Blog. Here’s the link: /whowhatwhy.org/2017/09/28/key-figure-trump-russia-saga-dodges-legal-bullet/.

 

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Judge Makes Unfounded Accusation against Lawyers in Sater-Connected Case

Due to an  error on my part, a paragraph was dropped from the original version of this article,  which contained my disclosure that I am one of 13 amici, who have filed an amicus brief supporting the motion for disclosure of the Sater documents remaining under seal at the Second Circuit. I apologize for this oversight and have restored the omitted paragraph highlighted in GREEN  in this updated version of the story.

 

 

Eastern District U.S. Judge Pamela K. Chen made a very serious error in a report she prepared for the U.S. Court of Appeals in a case involving Felix Sater, a figure who stands at ground zero of Special Prosecutor Robert Mueller’s investigation of collusion between the Trump campaign and Russian efforts to undermine the 2016 Presidential election.

She erroneously accused two lawyers, who have been subject to gag orders issued by Eastern District Judge I. Leo Glasser in 2010 and the Second Circuit itself in 2012, of “knowing contravention” of a Second Circuit order requiring that any certiorari from the two lawyers to challenge the Second Circuit’s order “ be filed under seal.”

A review of the papers filed by the two lawyers with the Supreme Court and the Court’s docket in the matter reveals that accusation is incorrect.

The two lawyers are Frederick Oberlander, who disclosed sealed records from Sater’s criminal file in the Eastern District of New York and his lawyer, Richard Lerner, who is the son of former presiding justice of the Appellate Division, First Department, Alfred Lerner.

Oberlander drew the ire of Glasser and the Second Circuit when he used information from Sater’s sealed criminal file in a lawsuit brought in 2010 to accuse Sater of using the cover of his sealed record to perpetuate a fraud that dwarfed the one that led to his guilty plea and subsequent cooperation.

Sater’s 1998 guilty plea was to crimes arising from a $40 million pump-and-dump stock scheme. In his 2010 lawsuit, Oberlander accused Sater of involvement in a $400 million real-estate fraud in projects involving now President Donald Trump.

A review of the Supreme Court’s docket in connection with Oberlander’s cert petition reveals that on May 10, 2012 Oberlander filed a cert petition in tandem with a motion “for leave to file a petition for a writ of certiorari under seal with redacted copies for the public record.”

Approximately six weeks later (on June 25), the Court granted their motion to file redacted copies of the brief for certiorari, with leave to do so within 30 days. In an entry dated July 13, 2012 the docket states, “Petitioners complied with the order of June 25.” Read the Oberlander cert petition.

To dispel any doubt about that sequence of events, the Supreme Court’s clerk’s office affixed a date stamp of May 10, 2012 in the upper right hand corner of the motion for certiorari and added in a legend in extra-large type across the top of the motion, advising that it had been “Redacted in Accordance with the June 25, 2012 order of the U.S. Supreme Court.” View cover page.

Judge Chen, who sits in the Eastern District of New York, was appointed by the Second Circuit as a special master to sort through claims filed by Forbes Magazine and its star investigative reporter, Richard Behar, asking for the release of any documents remaining under seal under the gag orders it had issued in 2012 barring Oberlander and Lerner from referring* to any of the materials they had obtained from Sater’s sealed file. Forbes’ motion was supported by a group of amici, including former New York Times reporter, David Cay Johnson, Michael Moore and BBC (I am also one of the amici).

*Correction made in the last paragraph reflecting that neither Forbes or amici had asked that the injunctions against Oberlander and Lerner be lifted

©DanielJWise2017

 

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