The Hearing

It was just me and a hearing officer, a “member” of the Immigration and Refugee Board.  Decision was “reserved”, meaning the matter will be under consideration until a written decision is issued.

I have no idea what the decision will be.  I would anticipate it will not issue for two months or more.

There is some follow up work I have to do pertaining to some of the relevant issues.  The focus is primarily on whether there is “adequate state protection” in my home country.  Quite understandably, a refugee claim is subject to the objection that your own country is willing and able to address the problems you cite, and you have to demonstrate not only that this isn’t so, but that there is no place within the country to which you can escape.  Put another way, you must avail yourself of any available refuge in your own country before you ask another country.

It might be a sufficient answer to this objection that when you are dealing with public officials who use the processes of the government to carry out and conceal human rights abuses and crimes against humanity; and when the country itself holds that any process or public act by one governmental entity in one jurisdiction is entitled to “full faith and credit” in every other jurisdiction, then if you are a potential target of those officials your only recourse is to leave the country.  Certainly, I think that argument is available here and has been made.  But it never hurts to have more arguments, and there are some.  And there is also a high burden to establish that such a situation can exist in the United States, which is regarded by its allies – including Canada – as being generally incapable of such things.

I could say a lot more but I think it would be imprudent.  I’m going to do the required work as best I can and see what happens, which is more or less what I have been doing for the last seven years.

I did mention at one point that the United States, having been born in violent revolution, may be prone to political excesses; and that Canada, having a different history in that regard, has occasionally served as a check on those excesses in a neighborly way.  So there.  That’s another argument.

In any case, I’m in limbo for now.

 

Michael Jackson: Another Surreal Story, Post Mortem

See, I thought from the headline that someone had subpoenaed CNN’s “Dr. Drew”, or hired him as an expert in the trial of Michael Jackson’s doctor.

But no, this is a mix & match:  the story is about what is going on in a trial, but the “expert” opinion is coming from a TV personality.

I don’t have a TV or see too much of Dr. Drew, but what I do see I don’t mind.  But I have to say I object to what he’s doing here.  This was a lawyer’s opening statement, not part of the evidence.   If he wants to critique what some expert witness actually says when the field is up his alley, that would be fair.  But this commentary is out of line.

And it’s prejudicing the defendant.

A Note On The Press

One thing you might wonder about in connection with the whole Sephora Davis matter is:  why wouldn’t the press be all over this?

It’s complicated.  Rochester does have a local newspaper, though it isn’t much.  But they have a reporter, Gary Craig, who generally does a very good job in “investigative reporting” and often writes quite insightful in-depth pieces.  And he writes well, too.

So where was Gary Craig in all this?  I talked to him frequently while it was all going on, but aside from a couple of articles run on the back pages of the paper nothing appeared.  Since aside from this it wasn’t covered locally, nobody else picked up on it either.

You learn as you go along, I guess.  In theory one of the chief functions of the press is to expose official wrongdoing.  The practice, in almost every case, is quite different.  The press relies upon the favor of officials for much of the information that makes the day to day stories they like to run:  fires, crimes, crashes, disasters.  This is their bread and butter.  So the truth is, they cross public officials rarely and reluctantly.  The criterion for when they might on rare occasions is largely mysterious, even to them I think.

Let me paint with a broad brush for a minute, looking back to ancient press history and the US presidency.  The press largely toadied for FDR.  They didn’t particularly like Truman, but they never attacked.  Ike, the quasi military but more political hero of WWII was untouchable during his presidency, so almost no criticism was even heard, other than the affectionate kind where they sometimes implied that he played golf and took it easy too much.  They were utterly star struck by JFK.  Like almost every normal human being, they disliked LBJ, but he sucked up to them in everything he said and did so they left him alone.

Then came Nixon.

Gotta Love The Photo…

in this article.

The Greek Finance Minister looks like he’s been up for three days being brow-beat by the muscle end of the gangsters banksters.

Of course the Finance Minister must say that Greece will do “whatever it takes” to pay their “debts” to the banksters.  Starve their women and children to death.  Make them homeless first.  Invade another country and loot it.  Lie, kill, cheat and steal.  I think that about covers the downside of “whatever it takes”.

In a debt based monetary system the prospect of default, especially “sovereign” default, is a mortal threat.  The response is bound to be threatened violence, albeit this is vaguely done in these international contexts.

Still, one often hears the term “moral hazard” applied to any proposal for debt forgiveness.  We now confront the moral hazard of refusing to consider debt forgiveness, but no one uses the term.

Yet this was a moral hazard that was quite well known to regular people not so long ago.

More Power For Prosecutors?

One wonders if we’ll ever reach an upward limit.

From the New York Times, an interesting and topical article about the vanishing trial, the “trial tax”, plea bargaining, judges whose hands are tied leaving them free to play more golf because the executive (prosecutors) and legislatures have all the power.

Lots of good bullet points here:

In 1977, the year Judge Kane was appointed to the bench, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.

Here in Florida, which has greatly toughened sentencing since the 1990s, felony defendants who opt for trial now routinely face the prospect of higher charges that mean prison terms 2, 5, or even 20 times as long as if they had pleaded guilty. In many cases, the process is reversed, and stiffer charges are dismissed in return for a plea.

How You Know Tom Moran Is Guilty

The short answer is that he was a party Respondent in the Prohibition proceeding begun in May of 2006 and dismissed as “moot” in December of 2006.  The Ashley Baker statement was put in evidence in that proceeding on November 17th, 2006.  After that, no sensible person familiar with the facts and circumstances could have doubted that convicting Sephora Davis and sending her to prison was wrongful, indeed criminal.

The same evidence – the Ashley Baker statement – leaves no doubt whatever that Dana Carson is guilty.

But there is more to it, having to do with Tom Moran’s role, and that also has to do with the Ashley Baker statement.

That statement was taken on January 24, 2004.  What was the situation on that date?  The robbery had occurred about six weeks earlier, at 4 AM on December 9, 2003.  Nine days later, on December 18th, Sephora was questioned by police investigators and by December 22nd, four days after that, the Geneseo Police Department had prepared a statement for her to sign, but she never did.  In the account of events that she was giving – which was false, but was probably the best information she had – she had been driving her car at the time in question at the place in question with two passengers.

Sometime after that – and it’s impossible to say exactly when but it was before January 23, 2004 – Dana Carson made contact with Eric Harder, who identified the actual persons involved in the robbery, including himself.  He also falsely claimed in his January 23, 2004 statement that Sephora had been driving.  Dana Carson knew that this information was false, because he fabricated the Ashley Baker statement the next day, the sole import of which was to corroborate the false claim that Sephora was driving the car.  Since it is unnecessary to fabricate evidence regarding a fact you believe to be true based on other evidence, that means Carson believed that Sephora had not been driving, and the only basis for that belief he would have had at that time was information given to him by Harder.

Tom Moran had been personally involved in the investigation of the robbery from the beginning, having issued a subpoena on December 15th.  The robbery took place on Court Street in Geneseo, a stone’s throw away from the Livingston County courthouse, the seat and center of local law enforcement, where Moran’s own office was located.  It was an affront to the power and dignity of local law enforcement officials and to Moran personally.  Sephora had been offered immunity in December.  That offer had come from Moran himself.

When Sephora refused to cooperate  Moran and the other police officers involved did what they do in that situation – they got mad.  And they decided, as a group, that they were going to get Sephora Davis for crossing them.

Epilogue

I haven’t described everything that took place over seven years in the Sephora Davis resignation saga, not by a long shot.  I think most of the essentials are there.  I hope what I have put here on the blog is comprehensible to the people who bother to come here and read.

Seven years.  People are wrongfully convicted and sometimes those convictions are undone after 25 years, as in Pottawattamie.  Or after 15 years on death row, as in Connick v. Thompson.  But most of the time they are never undone.  The system doesn’t like to do that, and the vast majority of victims don’t even try.  Or, no one tries for them.

In the most recent example, Troy Davis, people fought the fight for 22 years.  In the end the state executed him anyway.  I think one of the most troublesome things about that case is that even assuming factual guilt as alleged by the state, the death penalty was out of line.  Its imposition had more to do with the status of the victim – a police officer – and the status of the convicted – a black man.  And Georgia, if not the US as a whole,  may yet have to come to terms with that in potentially very unpleasant ways, if only because factual guilt was highly doubtful to begin with.

The most striking thing about the wrongful conviction of Sephora Davis, which admittedly does not include the drama of the death penalty or a lengthy prison term (although 3+ years ain’t nothing and a life term was threatened),  is that the system conceded it was wrongful beforehand and just went ahead and did it anyway.  It was done on an Alford plea.  The powerful and even conclusive evidence that the charges were the product of fabrication and perjury had been presented to a court with jurisdiction to determine the outcome, and in any case was uncontested, but that wound up not mattering.

Back To The Beginning – The Patricia Marks Thing

See, just as if this was entertainment – it isn’t, it’s a real thing – we wind up back where we started.  Remember I told you we would do that right about when we started this whole parallel resignation story thing?

And by the way, if you want to understand this post and most of the others over the last couple of days, you have to start at the beginning and read each one in order, plus any uploaded documents.

There’s a lawyer I know who was familiar with the goings on between Judge Patricia Marks and Tom Moran and knew what had happened.  I’m not going to identify the lawyer for reasons of prudence.  But suffice it to say he was in a position to know and a reliable source and a good colleague.

This lawyer tells me something I didn’t know when all this other stuff was going on in ’09.  Maybe I should have known it earlier, it certainly makes a lot of sense but Patty Marks never told me in our meetings because she knows that the Grievance Committee takes the position that the “confidentiality” of attorney disciplinary proceedings under NY Judiciary Law 90(10) applies to everyone, and considers disclosing the very existence of a Grievance Committee complaint or investigation by an attorney to be “misconduct”.

So what I learned from this lawyer was that Patty Marks had gone to the Grievance Committee about Moran’s evidence fabricating in that other matter she had told me about.  And that was around 2004 – several years before I ran into my problems with him on the Sephora Davis matter.  It had to do with this case.

And that’s why she recommended to me that I go to the Grievance Committee about it a couple of years later when I met with her, even though she never told me during those meetings that she had earlier gone to the Grievance Committee herself.

And I guess what it all amounted to was that Moran – and for all I know God knows who else, which is another question entirely – was using this bank created account designed to reimburse the victims of this fraud crime by a Livingston County car dealer as some kind of slush fund and making false claims against it by phantom people.  This, at least, was the implication based on what Judge Marks had told me.

Segue Into SCOTUS – Then To Canada

So I point out all this weird stuff about Moran in my reply:

I basically duped Moran into lying to the court, which he promptly and predictably then did.  It’s a fraud on the court, but then is it really when the court is such a willing “victim”?

But none of this mattered at all, because the Appellate Division just denied everything again – and again without comment – with another order dated January 21, 2010.

My thinking was that when the Appellate Division denied this last motion and did nothing about Moran I would come to Canada and seek asylum then, but about two weeks before that the US Supreme Court dismissed Pottawattamie County v. McGhee because the parties to that case had settled.  So now I had to do something else before I could leave, and that was to bring an “original” petition for habeas corpus in the SCOTUS.  Which I have discussed elsewhere on the blog, such as here and here.

But before we get to that – and we may never get to that on the blog because that’s a work in progress – there’s something else I have to tell you about what happened in ’09 because it’s kind of disturbing, even beyond everything else.

Next post.

 

Tom Moran – Hyperbole And Misrepresentation

But another thing I did in that last motion is that I baited Moran a bit by pointing out that we had not heard from his attorneys in all this, and I alleged “upon information and belief” that they were not responding because they knew that their client was engaged in criminal conduct and could not assist him, but on the other hand they could not expose him to liability, so they were saying nothing.  And I knew damn well that was the reason because I had written Jim D’Anza that letter.  And that prompts this response from Moran on or about January 8, 2010:

 

Now, there’s a couple of interesting things about this response.  The first is there on page 5, where Moran raises this strange issue about whether I’m sort of acting ultra-vires, like without my client’s authorization.  I was very puzzled by this “argument”, if you want to call it that, but subsequent events that have just taken place very recently – after I started writing about all this stuff on the blog here – indicate that this was some kind of rumor floating around the Rochester legal community.  Probably started by Moran himself.  Or maybe at the Appellate Division.  I don’t really know because until a couple of weeks ago the only thing I had ever seen or heard raising this issue was that strange paragraph in Moran’s 2010 response.  But maybe more on that later.

2009 (cont’d) And On Into 2010

So in ’09 this sort of interesting thing starts taking place in the Appellate Division where I am asking for all this relief and they are summarily denying it like they always do and Underberg & Kessler is staying out of it but Moran isn’t.  I bring this motion in April and it is denied in June.  Then I ask them to reconsider or send it to the Court of Appeals (New York’s “highest” court) and they won’t do that either and deny all that on October 2^nd.  And they never say anything other than denied, denied, denied.  So that pisses me off and I start writing to the clerk and to the chief judge:

 

And the point I’m making to them is:  you have to say it.  You want to rule against me I guess you can, I mean I can’t stop you from behaving like a bunch of goddamn criminals but you have to at least say what you are doing, you have to stop keeping everything a goddamn secret and this is very fundamental, and if you feel like you can’t say what you are doing maybe you shouldn’t be doing it, which is more or less axiomatic because it’s a federal and international crime.  So then as you can see what’s-her-face, the clerk, finally says well, you’re free to bring any appropriate motion so I bring this last motion in December and I’m trying to cover every technical procedural thing I think could possibly be an impediment to granting relief.  In case that was what was bothering the morons and they weren’t just perfidious bastards like I basically think they are:

 

Another Year – 2009

Continuing with our parallel saga here.

So now we’re up to March of ’09.  I’m disgusted, I’ve tried to resign and they won’t let me and they’ve basically threatened me with contempt if I keep going.

So:  time to keep going.  I’m a product of the US Navy.  These colors don’t run.

Also, I’m probably terminally naïve.  I want to give them every chance to behave like respectable public figures who are not criminals.  So, I figure I’ll harass them a little more, and also maybe, just maybe there’s a hint of an invitation there, something like “We’re not going to get into this other stuff with you, but if you ask us maybe we’ll undo the fucked up thing we did to your client.”

One other thing arguing in favor of trying one more time was that I could bring a motion to reopen the prohibition proceeding and that would involve the attorneys of record for Tom Moran from that proceeding, Underberg & Kessler of Rochester.  I knew those guys.  They weren’t insane.  Maybe between us we could un-fuck the Appellate Division just enough so that they weren’t committing human rights abuses and international crimes.  It’s a really low bar!  Maybe they can make it if the guys at Underberg & Kessler will get onboard!

So by April of ’09 – a month after the latest stupid order from the AD rejecting my application to resign – I have a motion ready and as I’m serving it on Underberg & Kessler I enclose a “personal & confidential” letter to Jim D’Anza, and of course I did not copy in Moran on this one:

 

I also talked to Rick Dollinger, a more senior member of the firm.  I had been good friends with Rick’s younger brother Doug back in college.  I had first met him when I was 18 years old.  I knew a lot of the Dollingers.  I loved them dearly.  Still do.

Now Underberg & Kessler was in a tough spot, and you know what happened?  In response to the motion they did probably the only thing they could do:  they didn’t respond to it.  As Moran’s attorney of record they were bound to respond and they didn’t.  Instead, Moran starts responding himself.  Which looks really weird.

 

Troy Davis – No SCOTUS Stay… (Update)(x2)

but they haven’t executed him yet.  This is a little weird.  I’m not arguing with it, but it’s just a little weird.  With the death warrant, or whatever they call it in Georgia, they usually do it unless they’ve been told not to – they don’t wait in case some higher authority says to stop.

Maybe the gathering crowds have something to do with.  Has the feel of a tinder box.

There are two problems here, I think.  One is the racial angle.  I mean, it’s just there.

The second is, this just doesn’t seem like an execution worthy crime.  Even if it’s all true and he’s guilty, there’s nothing to support an execution except that the victim was a police officer.

Maybe more to say on this later.

Update:  Sadly, there are two comments in a story from the UK about all this that may contain hints as to why they may be holding off:

Listening to 750 WSB right now and the reporter on the ground there is reporting that the number of riot police has increased greatly in the last few minutes and that the police helicopter has returned. He seemed to think that was an ominous sign. There are about 600-800 protesters there and the police are in riot gear and heavily armed. I have a feeling that this isn’t going to go well.

Read more: http://www.dailymail.co.uk/news/article-2040054/Troy-Davis-U-S-Supreme-Court-delays-7pm-Troy-Davis-execution-minute-appeal.html#ixzz1YdZfLaqP

I went to high school with Troy. He threatened to kill me. “I’ll kill you, Cracker.” Those were his exact words. He was convicted of another shooting eariler in the evening. He hated white people and took pride in killing a white police officer. I have seen his guilty smirk face to face,

Read more: http://www.dailymail.co.uk/news/article-2040054/Troy-Davis-U-S-Supreme-Court-delays-7pm-Troy-Davis-execution-minute-appeal.html#ixzz1YdZuQzhW

Put another way, this situation has become very racially charged and potentially violent, and the authorities are afraid.  They do not act on principle, they act on fear.  They have  low character.

Update 2:  SCOTUS says no dice and execution is underway, as of about 11:10 PM EDT.  Very sad.  More on this later, perhaps.

The Appellate Division Cover Up

Late January of ‘09, I think, I get this letter back from the clerk of the Appellate Division, at that point one Patricia Morgan, saying that my application to resign has been “rejected” because it doesn’t “comply” with Rule 1022.26(b).  Which is complete, utter, made up bullshit.  Prosecutors, judges, court reporters, miserable little clerks – at this point they’re all just making shit up and actively hiding the truth.

So I write back and tell her I’m a fucking attorney and you’re a clerk and this application goes to five judges, not a goddamn clerk, and they rule on it, not you.  So fuck with me no more.

I didn’t put it quite that way, but that was the idea.

Two months later I get a ruling all right:

http://www.scribd.com/doc/65821385/ucan-tquit

One important thing about this ruling is that it reinforces the pecking order.  They “rejected” the application for the very same incoherent reason that the clerk had cited, showing that the Appellate Division through its five judges is incoherent and wrong exactly the same way the clerk is.  Of course since there are an infinite number of ways to be wrong and only one way to be right the idea is they are backing the clerk no matter how stupid or wrong she is.  It’s a power thing, not a reason thing, and lawyers are below clerks.  That’s the message.  Well, one message.

The other message is, of course, that all this – what they did to Sephora Davis, how fucked up they are, how fucked up the Grievance Committee is, how any self respecting lawyer or even human being is going to resign when confronted with this incorrigible insistence that an atrocity is going to be willfully committed and then concealed – all of it is itself a big, dark, secret.  Shhh.  If you say anything else you will be in contempt, you will be “disciplined”, you will be jailed, you will be ruined.

Well, too late on that last part.  I was already ruined.  As for the rest?

Fuck them.

So now I’m thinking it’s time to leave the country before they do some other fucked up destructive thing, this time to me.  I mean, why wouldn’t they?  What’s to stop them?

The Actual Resignation

So that takes us up to, what?  About November of 2008.  Sephora has now been in prison for almost two years.  The Appellate Division and the federal court in Rochester have been tried and found wanting.  The Attorney Grievance Committee harbors some shameful – really criminal – and clandestine approval of prosecutorial misconduct, such that when a defense attorney goes to them with that issue they respond by immediately exonerating the prosecutor without investigating anything and intimidate the defense attorney, opening an investigation into his conduct for daring to complain about the prosecutor although of course they will say it’s for something else.  And they insist that this mindless perfidy is to be kept deathly quiet.  It’s all a big secret.

From an attorney “discipline” standpoint – and I put that word in quotations because it is obviously so selectively applied as to be laughable – the Appellate Division and the Attorney Grievance Committee are basically the same thing.  They live in the same building, with the same reception area.  The Grievance Committee brings its proceedings against attorneys in the Appellate Division, which admits attorneys to practice in New York and oversees them and disciplines them unless they are prosecutors or government lawyers or big firm lawyers in which case the Appellate Division covers up the wrongdoing and attacks the victims of it.