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KnowYourCOurts.com Important NOTICE

Please understand how very, very grateful I am to the readers and supporters of this site (including financial supporters, who help to defray Web site fees and costs), and of the many people who inexplicably regard me as an inspiration to their own situations.

However, I find it repeatedly necessary to reply to many e-mails explaining that I cannot give legal advice. Although, if time permits, I am happy to engage in academic discussions about the law, I am not admitted to practice in Colorado or any other state. If was to engage in unauthorized practice of law (UPL), I would be prosecuted by the Office of Attorney Regulation Counsel, which would appreciate any pretext to come after me, and all of my e-mails (including those e-mails where writers unambiguously ask for legal advice) could be discoverable. In addition, it would jeopardize my ability to feed my family, and waste all the money I've spent on law school, because I would be prevented from being admitted to the bar, if I so chose to apply.1

And, because the OARC is a lawless agency, the actual truth of the matter, or even the fact that I posted this Notice publicly, would not aid me in any way from the many thousands of dollars that would be required to defend such an action or from a capricious result.

Therefore, if you send me requests for legal advice, you are showing a profound lack of respect and regard for me and my family, who depends on me.

In addition, even if I was qualified to give legal advice, and did not care about the UPL laws, I do not carry legal malpractice insurance and could not be responsible for the adverse consequences of following my wayward advice.

Finally, even if I was admitted to practice, when I receive e-mails asking me for free advice in some given situation, which requires considerable time in understanding the facts and the law as applicable to a given situation, it's an implicit statement that my time isn't worth anything. I am totally strapped for time right now with law school, family, a full-time job, a business to run, and keeping this site updated. I haven't even posted any entries to another blog I write for (here) in two months, despite the fact that there's plenty to write about.

If you're reading this and wondering, "What is legal advice?," consider any question that asks me to apply the law to a particular set of facts, as legal advice.2 This includes me reading your motions or briefs to tell you if it looks decent or will be effective, and includes asking me what to file or when to file it.

Although the definition of UPL is ambiguous, varies from state to state, and affords the bar association monopolies too much discretion in prosecuting UPL, you cannot circumvent the prohibition by sending me e-mails with disclaimers that my response will not be considered legal advice by you, or asking me to evaluate and opine about hypothetical situations, which are actually analogous to your situation. I've seen all the tricks and if I receive such an e-mail disguised as seeking legal advice, I will respond curtly by requesting that you refrain from asking me for legal advice, or I will not respond at all.

That said, I do want to continue to hear from you and to hear about your situations. And, although this Web site does not offer legal advice, there are many dockets posted here and you may find some that are similar to your situation and you can see for yourself how pro se parties and counsel handled those cases and what the resulting outcomes were.

______________________________
1 For example, in April, 2010, the Louisiana Supreme Court denied admission to Leon A. Maryland, an applicant who passed the February 2002 bar exam but moved the withdraw his application when an investigation by the Office of Disciplinary Counsel found evidence of unauthorized practice in assisting a lay person with legal analysis and pro se pleadings. Maryland again applied for admission in November 2009. The committee opposed the application and asserted that the applicant had engaged in unauthorized practice.
2 This interpretation, and any statements appearing in this or any other blog entry on this site, is not legal advice and you should not act (except, perhaps, to seek licensed counsel) or refrain from acting (except not to ask me for legal advice) based upon my interpretations, or statements, or any inferences that you might draw therefrom.

Sep. 02, 2010 - Public Comment regarding Standing Committee on Family Issues Interim Report

Last week, I reported that the Committee released its Interim Report (located here) concerning court-appointed domestic relations experts (DIEs). A Web site for public comment is located here. I left the following comments in response to recommendations #1, #2, and #4:

CFIs should be appointed by random selection from of a regional lists of CFIs maintained by the SCAO. Reasons: Fraternities have been documented between appointing-judges and/or counsel who propose CFIs for appointment. An appearance of impropriety is created when counsel’s candidate[s] are chosen, because of the possibility of favoritism either in the type of recommendation (e.g., some CFIs are pro-mother or pro-father) or in pecuniary interests. There also is a conflict by judicial appointments, because the trial-judge is the *only* entity who can discipline a CFI for unethical conduct, but would be very unlikely to do so. See Colo. D.o.R.A. 2003 Sunset Review at 41 (“Judges rely extensively on the recommendations made by these appointees. This is also a reason to instill greater accountability”); and see March 23, 2005 memorandum of 4th Judicial District magistrate Rob’t Erler (“The Court values the education and experience that psychologists have that makes them uniquely qualified to do custody/parenting time evaluations”) (Available from: http://www.knowyourcourts.com/ColoPsychBoard/ documents/2005-03-23_memo-fromMagErler-toPsychBoard.pdf); see also Galatzer-Levy & Kraus, The Scientific Basis of Child Custody Decisions (Wiley & Sons, Inc. 1999) at 4 (“the position of the court’s supporting services is so significant, that court-appointed . . . mental health professionals and third-party neutrals’ opinions are almost always adopted by the courts”).

That the complaint process is ineffective/non-existent is well settled. See, e.g., D.o.R.A.’s 2003 Sunset Review ("The entire system was originally created based on the premise that the courts would handle misconduct on the part of appointees. However, this is not always the case, as is demonstrated by the receipt by the mental health boards of complaints against . . . special advocates . . . This makes it clear that not even the courts understand whose responsibility it is to deal with misconduct by appointees . . . In the meantime, complainants . . . have nowhere to turn. The judge has already ruled and the mental health boards dismiss these cases for lack of jurisdiction"). Chief Judge Samuelson (4-J.D.) found it necessary to issue an Administrative Order (4/30/2010) that CFIs must be minimally qualified and really must comply with CJD 04-08. Others, such as Jack Berryhill (1-J.D.) have included [erroneous language in their orders such as, “I have neither express nor inherent authority over a licensed psychologist [CFI, whom I appointed] . . . Rather, he is subject to regulation by the State Board of Psychologist Examiners, C.R.S. §§ 12-43-302 et seq. and the administrative remedies provided therein, over which I have no jurisdiction.” 2/24/2010 Order

The deadline for leaving public comment is 9/30/2010.

Sep. 01, 2010 - The effect on ethical legal services by social Darwinism in the legal profession

According to Mark Cohen, writing for The Minnesota Lawyer (here), there is a growing "chasm between the haves and the have nots of the legal profession." On the one side, he contends, are the big firm lawyers and highly successful smaller firm attorneys who handle big-ticket personal-injury litigation and, on the other, are small firm lawyers struggling to scrape out a living:

The first group of lawyers — the ones making a very good living — has been on the wane for some time, although the layoffs and hiring slowdowns and freezes of the current economic downturn added gasoline to the fire. Meanwhile, the pool of lawyers fighting to eke out a living has exploded. This latter group includes a ballooning number of unemployed recent law school grads forced to hang out a shingle. It also includes public-interest lawyers, who make less than many folks who have invested a lot less in their education.

Although Cohen relies, in part, on "a recent survey showing that close to half (42 percent) of solos and small firm practitioners in the state now report that they don’t have enough work to keep them busy," I seem to recall several articles discussing how enterprising lawyers were going into business for themselves — and doing well. Here are just a few:
  • Carol J. Williams, The big opportunities in the legal profession are at small firms (Los Angeles Times, Feb. 15, 2010)


  • Hilary Potkewitz, Partners flee big law firms to go their own way (Slate.com, Aug. 19, 2010)


  • Jill Priluck, Leaving Big Law Behind (Crain's New York Business.com, Aug. 15, 2010)


  • Nora Lockwood Tooher, Small Law Firms Prove To Be Big Source Of Jobs (Lawyers Weekly USA, April 2004)


  • Ashby Jones, While BigLaw Lays Off, SmallLaw Reinvents (The Wall Street Journal Law Blog, Feb. 16, 2010)
    • My concern is, as Cohen describes, that "There are those who believe in a form of Social Darwinism for lawyers who think the problem will take care of itself, with the least successful in the group being forced out." This is because, as I have argued previously, the "most successful" in the legal profession often are those who have mastered the ability to win friends and influence people, rather than knowledge of substantive or procedural law, or fidelity to the rule of law, or maintaining a demanding sense of integrity, which "justice" (as I define it) requires. Said differently, the public-interest lawyers, and those willing to advocate for the underdog, and those willing to demand excellence from the bench and bar, may be even further marginalized than they already are. If Cohen's theory (which he characterizes as an observation of reality) is true, is this the kind of purging the legal profession and the public needs?

    Sep. 01, 2010 - Absurd ruling from district judge Deborah Grohs helps explain why the public has little regard for the legal system

    Law Week reports that a 4th judicial district judge, Deborah Grohs, has denied an expanded media request by the Colorado Springs Gazette to blog from the courtroom during a murder trial. “Typing on a key board in the courtroom, whether it is on a laptop computer or a cell phone is prohibited,” Grohs wrote in a one-page ruling. “The act of typing is disruptive and takes away from the dignity of the court proceedings.”

    This ruling is so absurd on its face, that the ruling, itself, detracts from whatever dignity of the court proceedings one might have perceived. First, unless the proceedings are recorded, the court reporter will be typing away, and this hardly-audible typing has been incident to court proceedings for many decades. Second, no one, not even an Arctic fox, can hear anyone typing on a smart-phone keyboard.

    I'll leave it to my readers to conjecture about the judge's true motive in issuing this capricious and seemingly arbitrary ruling.

    Sep. 01, 2010 - Colorado appeals blog lawyer not selected for Court of Appeals vacancy

    Law Week reports that Terry Fox was chosen by the Governor Ritter for the appeals court vacancy created by Sean Connelly. (That means, of course, that Blain Myhre —the lawyer behind The Colorado Appeals blog— has lost out for a least a third time in a row (he was a finalist in 2008 and 2006, too). I have no idea what effect, if any, this has on his practice, but do you know what happens to a pharmaceutical company's stock when the FDA denies its application for a new drug?

    Aug 27, 2010 - KnowYourCOurts.com exclusive - Real Time - Half Time - Bass Time - Sausage Time

    And the men who hold high places
    Must be the ones to start
    To mould a new reality
    Closer to the Heart

    The blacksmith and the artist
    Reflect it in their art
    Forge their creativity
    Closer to the heart

    Philosophers and ploughmen lawmen
    Each must know his part
    To sow a new mentality
    Closer to the heart

    You can be the captain
    I will draw the chart
    Sailing into destiny
    Closer to the heart

    According to Preamble No. 13 of the ABA Model Rules, "Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system." This is why I say that philosophers and lawmen each must know his part . . . to sow a new mentality.  Unfortunately, most are not up to the task.

    According to Rutgers at Newark law dean John Farmer Jr., law schools' strategies have been to lure aspiring law students with “prosperity of the large law firms, and the easy career pipeline and high salaries they offered.” He admitted, “Tuitions could be raised without fear of compromising the students’ futures; the debt students were forced to incur would be easy to manage with the high salaries recent graduates were commanding. As a consequence, many law schools became 'cash cows' . . . The focus shifted to revenue; economic issues came to dominate.” His comments were reported by the ABA Journal (here)

    So, it's no surprise that Gallup's most recent poll of American's views of various industries and professions again rates the legal profession poorly: 27% positive, 28% neutral, and 41% negative.

    After reviewing the survey results, one lawyer on a list-serv I to which I belong wrote, "The bar could and should do far more than it does to improve the public's and potential clients' impression of the legal profession."   No sir, you need to do your part to sow a new mentality. As long as you're hoping the bar association will “manage” the public's perceptions, you're part of the problem, and your profession is earning its long, slow, decades-long demise.

    I can learn to close my eyes
    To anything but injustice

    . . .

    You can fight
    Without ever winning
    But never ever win
    Without a fight

    For anyone that's followed this blog for any length of time, you've doubtless seen, on occasion, the judicious use of poetry or, more specifically, lyrics -- Rush lyrics. I've been a been a Rush fan since I was a teenager, and, whenever Rush is on tour (usually every couple of years after the release of another album in their ceaseless progression through artistic-creative time), I travel the country to see at least three or four shows.

    And, on Friday night, I had the unexpected treat of seeing Rush front row for the third time.

    According to my ticket, I had a regularly-priced 4th row seat on Geddy's side (stage right). What I didn't know —and what none of the other 4th row ticket-holders also didn't know— is that there are no rows 1 through 3 in that section. As a result, we were all front-row, and invited at the Band's request to enjoy the show at the leading edge of the stage, another eight feet forward from our seats. Perhaps you can make me out somewhere in the crowd in the photos found here or here (I'm wearing an outback leather hat).

    Below are some pics I snapped with my cell-phone from the front row.

    Aug 24, 2010 - KnowYourCOurts.com exclusive - attorney reveals covert strategies used by family courts indifferent to justice for the purpose of expediting the dockets -- another example of your tax dollars hard at work

    Guest commentary by New York lawyer Peter Lomtevas

    Coerced Settlements

    As more and more [county] court judges [and magistrates] are being elevated to [district] court [] judges, they bring undesirable techniques with them.

    The most significant of these is the coerced settlement trick.

    There can be several underlying reasons why a coerced settlement is desired. First is that the judge and the winning lawyer have a relationship - perhaps prior running mates for election or prior child protective officers. Second is that overarching federal policy is the avoidance of the displaced homemaker where the presumably moneyed husband always loses and the mother gets all the money and property. Thirdly, the judge does not want appeals. A more sinister aim could be the assignment of professionals to a case for the purpose of drawing extra money from the litigants – especially the desired loser.

    In litigation, there are the two parties are involved in an adversarial process, often represented by attorneys, before a judge (“the court”) who is employed by the state to resolve legal differences.

    This narrative describes a bastardization of that construct where resolution of the case is not made by the judge, but rather imposed upon the parties through coercion. A loser is selected and the case gravitates away from the loser to the desired winner.

    One can tell something is afoot when all the activity in court goes against one side.

    The first avenue of attack by such a court is against the loser’s attorney.

    The first call of the calendar is 9:30am. Your lawyer is on another calendar call in another courtroom. Your judge comes out on the bench and calls your case. Your adversary is present but your lawyer is missing. You inform the court that your lawyer is in another part and will be right here, and the court responds, "If you talk for your counsel it will cost you. I would be quiet." Another trick is to call the case before 9:30am and cause an appearance without your lawyer present. In another variation, your lawyer has a continued trial in federal court. Your lawyer issues an affirmation of actual engagement, but the court holds it up to the audience and ridicules it saying, "This is unacceptable, this is unacceptable."

    The issue of affirmations of actual engagement requires more detail. The court may not have any instructions in its part rules for actual engagements. There certainly are rules involving missed court appearances by attorneys (in New York City, for example, Part 125 Rules). Nevertheless, the court says to the audience in the courtroom, "Listen up everyone. I want to tell you this affirmation is totally unacceptable. Such an affirmation of actual engagement has to be presented weeks in advance. He knew about this weeks in advance and this affirmation is totally unacceptable to give the day beforehand." The nature of an actual engagement is sudden: that a trial has been extended and as a result, there is a scheduling conflict to be resolved by the affirmation of actual engagement seeking a brief adjournment. However, this court uses the missed appearance as a basis to punish the desired loser.

    The court will mention in passing that the winning side can ask for counsel fees for the missed appearance even if they had advanced notice of the absence. This [tactic] is effective because it induces a rift between counsel and client right away.

    As to hours of operation, the court may compel parties to go through the call of the calendar at 9:30am, but not appear for work until after 10:00am. Then, the court may selectively call cases so as to clear the courtroom for the case in which the court wants to coerce a settlement.

    Hypothetically, if such a case was to go to trial, the court may sustain all the winner’s objections and overrule all the loser’s objections, or deprive the loser of the ability to put witnesses on the stand, or interrupt the proceedings by yelling out that this case “cries out for a number.” Missing witnesses may be forgiven and non-fact witnesses may be allowed to render opinions without the required foundation of a showing of their expertise.

    In one instance, the court may make its own objections to hearsay evidence while the law in many states allows attorneys to consent to hearsay evidence being introduced at trial. One is left with the distinct impression that the court is incompetent when in fact, the court maybe merely coercing a settlement by stacking the deck against one party.

    Ultimately, the loser’s lawyer is made out to appear incompetent and the loss of the case is made to appear as falling on that lawyer’s shoulders.

    The second avenue of attack is against the client. Here, the court violates basic principles of the law to achieve coercive effect.

    The first characteristic is the absence of a court reporter. This means that statements made between the court and the litigants are not recorded anywhere. The court can abuse and insult litigants: for example saying that a client who missed an appearance for a vacation will get a “postcard” from the court; or that a litigant thinks he is “smarter” than his attorney; or that an attorney who is appearing pro se on a personal matter has a “fool for a client”. In the most egregious cases, the court holds motion arguments off the record and then tells litigants the court is permitting no more motions.

    The second characteristic is an overt disregard for the law. For example, such a court may have part rules that demand the production of income worksheets for motions for child support. The court fails to follow its own part rules in ordering child support. The law of the state may be that the court must calculate the guidelines support amount from income statements produced by the parties but the court disregards the requirement to produce income statements and orders child support nonetheless. Here, an imputation may have no basis in the record and there is no record. In most states, imputation requires a showing that the non custodial parent is deliberately refusing to disclose his income. The rule in New York, for example, is that a court must provide a clear record of the source of the imputed income, the reasons for such imputation, and the resultant calculations (see Matter of Strella v Ferro, 42 AD3d 544; Matter of Genender v Genender, 40 AD3d 994; Matter of Kristy Helen T. v Richard F.G., 17 AD3d 684). However, the court makes no such finding and imputes income anyway.

    Such an order is “temporary” in status and cannot be appealed. Also, such an order makes it appear as if the losing side is genuinely losing rather than the winning side actually having a cogent case. This process is referred to as “prejudice”: the loser is prejudged by the orders in his file.

    Another example is moving forward on a case (for example entering a preliminary conference order) without a complaint being filed. A complaint is a basic requirement in all litigation. It informs the defendant of the allegations against him in order to prepare for a defense. The absence of a complaint deprives the client of the chance to defend and at worst, presents a moving target to the defendant and his counsel - making a defense impossible.

    The rule in the typical state is that an attorney for the child must be able to communicate with the child and then be able to articulate the child's words to the court. In this case, the court may appoint an attorney for an infant. The attorney for the child may make jokes in court about communicating with the child through "mind melds" and "learning baby babble" and then offer advice and recommendations to the court in violation of local procedural rules. Meanwhile, the court ordered a $5,000 fee for the attorney for the child which neither parent may be able to afford, but the client's non-payment becomes the brunt of jokes about "contempt" in subsequent appearances before the court.

    The rule on counsel fees almost universally is that the poorer spouse can apply for and obtain counsel fees to aid in the furtherance of representation in court. Here, the court awards counsel fees for the moneyed spouse to be paid by the indigent spouse. So, by now, the client owes child support, counsel fees to the attorney for the child and counsel fees for the moneyed client's lawyer.

    A more vicious trick is the ex parte application for custody. Here, the client loses all accessibility to his child because the opponent's lawyer filed a motion and obtained an order of custody. One variation is that a court appointed psychologist assisted the opponent by alleging that the client and the child do not get along. Another variation may not involve a psychologist but may instead involve filing a motion without serving the client and his attorney and then taking custody on default. [In Colorado, this is achieved through the "temporary protective order," which is granted ex parte and the subsequent permanent protection order is decided under a lesser statutory standard. See Marriage of Fiffe, 140 P.3d 160, 161 (Colo.App. 2005). It is also achieved through a Motion to restrict parenting time pursuant to C.R.S. § 14-10-129(4), which Motions are often granted ex parte if they are captioned, "Emergency," or "forthwith," and which must be heard within seven days, even `though the targeted parent's attorney may be unavailable or the targeted parent is unable to find counsel within that time. See, e.g., August, 2009, CLE in Colorado presentation, “A Judge’s Perspective on Civil Protection Orders and 14-10-129(4) Motions: Imminent Danger or Just a Tactic?”]

    This sudden separation of the child from the client causes a separation anxiety that can evolve into suicidal ideations and misconduct during litigation. The court awaits any sign of misconduct in order to retaliate and further stack the deck against the client and his attorney.

    Another variant is simply not ordering visits or perhaps ordering visits that are minimal or conditioning those visits upon extensive travel times (maximizing the risk to the child if the client drives drunk or speeds).

    Another trick is to take no action on motions to compel production of documents. Here, the court denies motions for enforcement of demands for discovery - such as motions to strike pleadings or motions to compel production. So, the losing side has no way to prove its case or mount a defense.

    Another trick is to keep all parties and counsel in court all day. Typically, lawyers have multiple cases before multiple courts. Here, the court forces counsel to miss all other appearances in favor of the court. The aim is to coerce the parties to settle their case. This will involve several stand ups before the bench where the court will humiliate the parties by saying they are acting "like children" even though there may be serious issues that require the development of a full record for a proper resolution. For example, there may be a serious psychological flaw in the desired winner. She may be psychotic and wishes to avoid exposure. Or, perhaps the child was fathered by a family member and that has to be hidden from view. The losing client then becomes the source of funds for the opponent and visitation is ordered at a minimum.

    This narrative involves an actual court in operation in New York City and the hypotheticals listed are real.

    The objective is to array all available tricks, both procedural and substantive, to coerce a settlement of each and every divorce case while leaving no record of it.

    Aug 24, 2010 - Office of the State Court Administrator releases much-anticipated interim report on divorce industry experts (DIEs), acknowledging abuses

    The Family Issues Committee has concluded that "changes to the current Chief Justice Directives and statutes will likely be required to achieve system improvement." Here's an except:

    The current system provides for meaningful regulatory oversight of attorney CFIs . . . Conversely, the non-attorney CFIs are overseen solely by the appointing court and the District Administrator. The State Court Administrator’s Office continues to retain its authority to investigate but has no affirmative duty to investigate complaints, nor is there any oversight by other regulatory agencies. In fact, 12-43-215(7), C.R.S. (2009), strips the Department of Regulatory Agencies of jurisdiction to investigate mental health professionals who are performing duties as court- appointed CFIs. The current regulatory scheme ensures that mental health professionals functioning as CFIs are unlikely to be held accountable for any violation of a code of professional conduct in the administration of duties they fulfill as a CFI, which may include administering psychological, domestic violence and parental alienation evaluations.1

    * * *

    Close study of the complaints, in combination with the relevant Chief Justice Directives and applicable statutes, has revealed several gaps in the regulatory scheme that may lead to abuses of the system.

    No shit, Chief Judge Sherlock --er, I mean Schapenski. These are the same observations that have been made repeatedly by various committees and regulatory bodies over the last ten years.

    Nevertheless, Schapenski's principle recommendations are, as follows:
    Recommendation #1: Limit the Scope of the Order of Appointment: Judicial officers should clearly define the scope of the work to be performed in the order of appointment to either or both limit the time to be spent or the fee to be charged for all CFI appointments.

    Recommendation #2: Centralize and Clarify Complaint Process: At a minimum, create a central “clearing house” for complaints/grievances and a clear definition of which go to the District Administrator, Department of Regulatory Agencies (DORA), Office of Attorney Regulation, Office of the Child’s Representative, and the State Court Administrator's Office.

    Recommendation #3: Standardize the Qualification Process: Develop a standard protocol to determine competency and continued qualifications; however, it should not be so burdensome as to deter persons from serving in remote/rural areas.

    Recommendation #4: Maintain a List of Qualified CFIs: Create a statewide list of CFIs eligible for appointment, maintain the list at the State Court Administrator’s Office, and publish the list on the Judicial Department website.

    Recommendation #5: Continue Study of parenting coordinators: The role of PCs has been evaluated, but requires further study before further recommendations can be issued.
    The Interim Report is located here. A Web site for public comment is located here (deadline is 9/30/2010).

    For more information, contact Bill Delisio of the SCAO.

    ________________________
    1 Recently, in 09CA0751 (Marriage of Harrington), I similarly contended:

    Seven years ago, the Other Professionals Subcommittee Report highlighted the concerns of the Commission on Families in Colorado Courts “based on complaints it heard across the state on the use of special advocates” (see August 1, 2003 meeting minutes, Standing Committee on Family Issues), and D.o.R.A. lamented that the volume of improperly-filed complaints filed indicated, “not even the courts understand whose responsibility it is to deal with misconduct by appointees.” Mental Health Section’s 2003 Sunset Review at 41.

    Today, the trial-courts remain uninformed or unwilling to confront misconduct by appointees. Rather, they excuse them from accountability, look the other way, or —occasionally, even— intercede in regulatory investigations. See, e.g., March 23, 2005 memorandum of 4th Judicial District magistrate Robert Erler to Psychologist Examiners Board (“I understand that [father] has filed a grievance against Dr. Hoffman based on his actions as a Court appointed Special Advocate . . . [P]ursuant to C.R.S. 12-43-215(7), the provisions of title 12-43 do not apply. . . the Court would not be able to appoint psychologists to do custody evaluations if they knew they were subject to grievance procedures by an unhappy client.”) Hoffman was later suspended. See Alan Prendergast, “ KnowYourCourts busts a rogue shrink,” The Denver Westword, Nov. 18, 2008. Accordingly, this case represents a seminal opportunity to publish a decision that provides definitive guidance regarding the trial-court’s important and unique function of providing CFI accountability.

    The Court of Appeals —apparently tired of the same case being remanded back from the trial court over and over again because of the trial court's refusal to comply with earlier mandates to provide such oversight, and highly annoyed at my success in embarrassing the Colorado judiciary with this Web site— told me to go screw myself in its unpublished decision released a couple of weeks ago.

    Aug 18, 2010 - Dear Mr. Governor:  Think twice, no three times, before picking Myhre for the Court of Appeals

    Law Week reports that Blain Myhre, the lawyer behind The Colorado Appeals blog, is for the third time a finalist for the sham Colorado Court of Appeals. (Fortunately, district judge Angela Arkin is not a finalist, also for the third or fourth time).

    Why might I recommend against Myhre, who frequents this Web site once or twice per week? Two reasons: One: Blain very, very seldom ever includes any subjective commentary in his weekly digests of appellate decisions — great if he was asked to write digests for The Colorado Lawyer, but not exactly what I'd call a "blog." The only times I can recall any subjective commentary, they were sycophantic comments regarding the court of appeals judges -- I can't recall, exactly, but some sort of comment about their infinite patience or wisdom. For example, in 2006, he wrote:

    I urge voters to vote No on Amendment 40 (appellate judicial term limits). It is an unwise, unwarranted and unnecessary measure that will harm the Colorado appellate courts and I believe make the selection of appellate judges in Colorado more political (in the negative sense of that word) . . . I urge voters to vote to retain the five court of appeals judges on the ballot--Judges Carparelli, Davidson, Loeb, Marquez and Russel. In particular, I strongly urge the retention of Judge Marquez, who has recently come under unfair criticism in an attack of questionable motive and origin. I refer you to this great editorial written by a bipartisan group of election law attorneys that appeared in today's Rocky Mountain News and supports Judge Marquez's retention. The group is truly bipartisan, consisting of attorneys from both sides of the political aisle who typically disagree on just about everything. They unanimously and vigorously support Judge Marquez. And rightly so. The attack against Judge Marquez is baseless, unfair and disturbing. Judge Marquez is the quintessential appellate judge, hard-working, soft-spoken, thoughtful, insightful and eminently fair. He and all his colleagues up for retention deserve to retain their positions because Colorado deserves their continued excellent public service.1

    Nevertheless, although such sophistry is to be expected from a lawyer who claims that 80% of his work is in the state's appellate courts and also from one who aspires to become a peer to those judges, remember the adage, no one likes a suck-up.

    Two: Blain doesn't return e-mails. Over the last couple of years, I've sent him two or three e-mails. I even asked him in an e-mail last week if he was still thinking about another run at the appeals court. Except for judges and John Gleason, everyone returns my e-mails (even the folks who aren't especially fond of me). Although not returning e-mails may seem very "judge-like" (believing oneself to be an elitist, above most all others), I think its just rude, and I think it says something about his character.

    Yes, it's true that I don't have a lot of data to make a truly informed conclusion, but I am a surprising good judge of character. And, because I'm a blogger and not a judge, I'm entitled to be as capricious and arbitrary as I choose.  Now, if only Colorado's judges would stop behaving like bloggers.

    Did I mention, the Governor's office visits this blog from time to time, too?

    _________________________________
    1 And yet, the Judicial Performance Review, voted by only 6-4 to retain Marquez, noting the "variable quality of some of his opinions and sporadic departures from controlling law, especially given the length of time he has been on the bench." Moreover, I can attest from personal experience that most of the Colorado appellate judges, perhaps with the exceptions of Taubman or Graham or a few others who I am not familiar with, are not engaged in "excellent public service." Like most other judges in this state, they're petty tyrants, who rule from their bench on-high through intellectual dishonesty (paying lip-service to the Rule of Law, while engaging in pragmatic rulings such that adherence to the law by citizens and businesses in decision-making is an exercise in futility or chance, and which renders self- help as the far more attractive remedy). As I will be discussing in a future article in a few weeks, the court of appeals judges routinely disregard stare decisis or even manufacture or distort the facts of a case to apply the law to the manufactured facts so as to produce a desired outcome under the rubric of judicial reasoning. This "jurisprudence" —or rather private judging— remains hidden from public view through the practice of unpublished opinions. Moreover, as very few Coloradoans are aware, the decisions are proposed and drafted by staff attorneys working at the court of appeals, not by appellate judges. More on that later, too (as told from an insider, who has provided information to KnowYourCourts.com).

    Aug 18, 2010 - A frightened John Gleason, Colorado's attorney regulation Czar, runs to the feds with complaint that private investigators have been monitoring his activities in Arizona

    According to The Arizona Republic, John Gleason, Czar of the Colorado Attorney Regulation Counsel has apparently complained that he was "tailed" during his trips to Phoenix to investigate the former Maricopa County Attorney. The law firm of Wilenchik & Bartness, P.C., retained to defend the Deputy District Attorney, hired private investigators "to find out what [Gleason] was doing here, who he was meeting with while staying at the Biltmore, and if he was conducting an official investigation."

    I can confirm that this Web site has received numerous visits from the Maricopa County offices. If they are concerned that Gleason is not conducting an official investigation, or that his techniques, practices, or motives are of dubious providence, their suspicions may have been justifiably raised after reading the articles and viewing the documents maintained on this site.

    In a 2005 interview by the Glenwood Springs Post, John Gleason once proudly quipped, "This is an office of the Supreme Court. We do anything we need to do."  Perhaps not in Arizona.

    Aug 18, 2010 - Got Geddy?

    Any of my readers see Rush at Red Rocks on Monday or Tuesday night? Geddy (below left, photographed at the show) and Alex were observed dining at Frasca in Boulder last night, as seen in this photo snapped by a fan. (below right).   Fortunately, Alex (pictured below right talking to the waiter) managed to escape from Colorado —yet again— without dealing with Colorado's courts (such as Boulder darling Roxanne Bailin).  Little do they know how fortunate they were; a more prudent tour manager (shame on you, Liam) would have insisted on room service only, and a brisk chartered flight in and out of the state.  Alex was less fortunate in Florida a few years ago, where he was Tasered multiple times, even after being subdued and confined in a police car (click here for the court's assuredly "faithful" version of facts).

    Aug 18, 2010 - “Make Room for Justice” or “Justice Held For Ransom?”

    "Make Room for Justice" was the title of the recent Denver Post article on the topic of the demolition of the old Colorado Appeals Court and Colorado Supreme Court building. The unintended pun of the title is that room is being made for justice, where justice should have already been (but, as many of us know, often was not).

    Over the weekend, I received a call from ClearTheBenchColorado Director Matt Arnold, who was doing some fact gathering for an article he was working on.

    Today, he published the article, well-written and cheeky. Read it here: http://www.clearthebenchcolorado.org/2010/08/17/colorado-supreme-court-building-demolished-to-make-room-for-brand-new-258m-judicial-complex-the-mullarkey-monument/

    Aug 16, 2010 - A personal note

    On Friday, the results for the bar exam I took in June were mailed out. As I mentioned in a previous post, the average pass rate for this exam is only 20%, and in a prior year was 11%. I am delighted to learn that I passed. A total score of 560 was required to pass, and I scored 657.

    I would like to thank my selfless wife (who served as a single parent for the several months I was preparing). I also want to thank all of the friends of this site, who left voice-messages and sent e-mails of support and encouragement. -- Sean

    Aug 10, 2010 - state district judge be suspended without pay for abuse of pro se litigants

    What? You mean judges --our presumed guardians of the law-- are abusive toward parties who affront the legal establishment by appearing without a lawyer? I don't believe it!

    Hard as that may to believe, the FirstAmendmentCenter.org today reported that a judge, who had been previously disciplined for the same pattern of offensive conduct and oppressive discharge of the duties of her office, was suspended without pay. The Washington Supreme Court rejected her argument that the First Amendment protected her speech and conduct in the courtroom, which the opinion characterized as "rude, discourteous, undignified, and demeaning treatment of the attorneys and pro se litigants who appeared before her." A dissent finds that the judge, JUDITH R. EILER, should be suspended for ninety days, as recommended by the Commission, rather than the five days imposed by the state supreme court.

    Aug 6, 2010 - KnowYourCOurts.com exclusive - Adams County judge's reasoning for denying a contempt motion, “Contrary to [movant's] apparent belief, the court is not all-powerful and lacks the authority to intervene in every dispute she may have with [opposing party] . . . The court lacks authority to grant a motion to compel compliance with court orders, even if every fact alleged in the Motion is true. The motion is therefore DENIED.”







    What Judge Bryan really meant to say was, "The inherent powers doctrine and contempt authority of  this Court is available when invoked by counsel, but is unavailable to pro se parties." Fortunately, Bryan is doing Coloradoans a favor by stepping down in January, 2011.

    The case is No. 08DR2514 (Marriage of Welch)









    Aug 4, 2010 - Colorado legal establishment launches [yet another] indoctrination Web site in an attempt to enhance (or redeem) the image of the Colorado judiciary;  The Ft. Collins Coloradoan proclaims, “Retention panel undermines confidence in judicial system.”

    Recall the adage, “Imitation is the sincerest form of flattery” ? The Colorado Bar Association, Institute for the Advancement of the Legal System, and Colorado Judicial Institute have launched another indoctrination Web site, and you're going to love the name:

    KnowYourJudge.com

    Of course, the site does nothing (like KnowYourCourts.com) to supplement your knowledge of Colorado judges. What "service" does the Web site provide? It's an applet that enables site visitors to search a judge by name, and then redirects them to the specious Judicial Performance Commission's 100%-retain recommendations.1

    Meanwhile, The Coloradoan published an editorial today, pointing out that, although unanimously recommending that voters retain District Judges Jolene Blair and Terence Gilmore, the 8th Judicial District Commission on Judicial Performance acknowledged the "community's concern" about the censure they received for their role in prosecuting Timothy Masters in 1999, and thusly has won “winner in the understatement of the year contest.”

    Consider that a former Colorado Supreme Court justice recently conceded, “The primary structural problem with [Colorado's Judicial Performance Commission] is that the appointing authorities have complete control over the political make-up of the commissions, as there is no requirement for partisan balance. Thus, the commission membership depends upon the political affiliation of the appointing authorities . . . Experienced commissioners tend to think that the public hearings are a waste of time.” Dubofsky, Judicial Performance Review: A Balance Between Judicial Independence and Public Accountability, 34 Fordham URB.L.J. 315, 323 (2007).

    For further reading, I recommend Judicial Evaluations - a Proposition, an essay by a federal bankruptcy judge in Colorado, Sidney Brooks. Is Brooks the only honest, working judge in Colorado? If he is, you can bet he'll never be "elevated" to an Article III judge.

    ____________________________________
    1 Once in awhile, the Commission makes a token sacrificial offering, such as Judy Archuleta in 2008, and Jill Mattoon in this retention-election cycle.

    Aug 2, 2010 - University of Denver Law Professor observes, “The past practices of discipline in the State of Colorado would suggest to me that the likelihood that [one who engages in a pattern of plagiarism] would be disbarred from the practice of law is quite slim.”

    The quote from Eli Wald, an associate law professor, is reported by Channel 7 (here) concerning the Scott McInnis scandal.

    The professor's observation is in stark contrast to the numerous statements over the years by John Gleason (OARC Czar) --statements, which are found here-- that attorney dishonesty is taken seriously in Colorado.

    July 22, 2010 - “The Colorado Rules for Magistrates create a confusing appellate labyrinth perplexing both counsel and pro se parties alike, leading to the dismissal of a significant, and perhaps unacceptable number of appeals.”

    So said a three-judge panel of the Colorado Court of Appeals today in Marriage of Stockman, dismissed because the magistrate —who didn't know the statutes and rules governing his or her own authority— made an erroneous statement to one of the parties about when and how to appeal a magistrate's decision in that case.

    July 20, 2010 - KnowYourCOurts.com exclusive - Finding the middle ground between the lows that Colorado divorce attorneys will stoop to gain a tactical advantage in a case, with the duty to warn

    Recently, in one of my law classes, I learned about Tarasoff v. Regents of the University of California, a case with one common thread to one of my own personal experiences.

    In Tarasoff, a college student named Poddar became obsessed with a young woman (Tarasoff). His obsession escalated until came to believe he should kill her. A friend exhorted him to see the campus shrink, and he did. During one his visits with the shrink, he announced that he would kill Tarasoff. The shrink did nothing. Poddar left the shrink's office and went straight to Tarasoff's residence and stabbed her to death. Tarasoff's parents brought a survival suit. The shrink argued that he owed no duty to Tarasoff or her parents, because he had no fiduciary relationship to her. The California court said "Not so." The court held that whenever a psychiatrist or any other health care practitioner has reason to know that his or her patient is likely to pose a threat to third persons, he or she may owe those third persons a duty to act reasonably under the circumstances to protect them against an act of violence.

    Does this obligation attach to anyone who knows or suspects a person may do harm? And, if it does, does society (or more accurately, the courts) seek to encourage such reporting, by failing to penalize false reports or even fraudulent reports undertaken for a malicious purpose?

    According to Shawn Mess, who was a Colorado State Trooper at the time of his divorce, Colorado divorce attorneys do make such fraudulent reports to gain a tactical advantage in their clients' litigation. In a complaint filed with the Colorado's Attorney Deregulation Council in June, Mess accused Greg Quimby of contacting Mess' then-employer, the State Patrol, with false allegations that Mess had improperly acted through Colorado Springs Police to threaten his ex-wife with arrest, and that Mess was "out of control" and desperate (evidenced, apparently, by his purported desire to salvage his marriage).

    In a recording provided to KnowYourCourts.com, Quimby exhorted that Mess should not be permitted to carry a weapon and advised the State Patrol, "I get a real bad feeling about Shawn and his instability . . . People are most dangerous when they're desparate -- Shawn is desperate . . . certainly the Troop would be embarrassed if, you know, he did in fact, you know, got into the paper 'TROOPER SHOOTS WIFE' and stuff like that. . . that scares all troopers and they don't deserve that. You know, obviously, I'm very fond of police officers." Indeed, Quimby initiated the call by showering the Patrol with adulation, including his great fondness for police officers, that Quimby was a prosecutor and a cop, that Quimby's brother is a cop, that Quimby's son-in-law "is a cop," and "I have a lot of friends that are cops."

    Listen to the recording yourself to determine how sincere Quimby was, or whether Quimby was merely trying to gain a tactical advantage in divorce litigation, as I have documented that some certainly do.

    In 2005, Quimby was suspended from the practice of law for violations of the Rules of Professional Conduct in three separate matters. People v. Quimby, No. 05PDJ008 (Colo., 2005). The unsurprising outcome of Mess' complaint regarding Quimby to the OARC is here.

    July 16, 2010 - Mark Brennan on Law & Justice: "First Amendment Loses Again; Lawyer Suspended for Failure to Worship a Judicial Tyrant"

    Below is an article reproduced (with permission) from Mark Brennan's Law & Justice blog
    This article provides yet another instructive example of the degree to which attorneys are, paradoxically, second-class citizens in the degree to which they may exercise their Constitutional rights to speak freely, or to be free from deprivation of their liberty or property without procedural or substantive due process. See, e.g., Tarkington, M., The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation.

    Whereas any citizen other than an attorney is free to speak out concerning the evident incompetence or corruption of any public official, including a judge, it is the view of State bar regulators that attorneys, who are in the best position to know the degree to which judges are incompetent or dishonest, must remain silent in the face of judicial tyranny.

    This is a threat to the freedom of all, for all depend for the preservation of their freedoms upon the willingness of courageous attorneys to oppose political and judicial tyranny.

    Judges are nothing but lawyers who, by virtue of their political connections, are appointed to the bench in order that they may be relied upon, from time to time, to do the bidding of their political allies. They are seldom the best available person for the job, and vary widely in the degree to which they revere the law and the truth above all else, and prove worthy of the position.

    Even Supreme Court Justices, however brilliant they may be, are appointed principally because they have throughout their careers devoted themselves to serving the interests of the rich or powerful, whether it be Big Business or Big Government. Populists need not apply. Like John Roberts, Elena Kagan has devoted her entire life to advancing her own career by sucking up to the rich or powerful. She has never in her career gone out of her way to take a big risk on behalf of the little guy. Not since Thurgood Marshall has anyone who devoted his or her career to representing the little guy been appointed to the Supreme Court.

    This is likewise true in the lower courts. Most appointed judges are former attorneys for Big Business or Big Government who have never taken a serious risk for anyone, just because it was the right thing to do.

    Judges are in most states appointed for life, and are almost entirely unaccountable for routinely incompetent or corrupt exercise of their massive powers to consistently favor their allies.

    It is only when they engage in blatantly "inappropriate" conduct (even though it may actually be quite inoffensive in any real sense), such as consorting with whores and strippers, sexually harassing litigants or employees, or actually taking direct (as opposed to subtly indirect) bribes, that they are driven from the bench.

    That they are judicial nihilists who routinely rape and murder Lady Justice by granting summary judgment against litigants they do not like (usually the little guy), show favoritism toward litigants they do like (Big Business or Big Government for which they worked as attorneys), gut statutes with which they do not agree, or trash valid jury verdicts with which they do not agree, is never grounds for discipline, let alone impeachment.

    At worst, they suffer the mild shame of occasional reversal on appeal.

    The only people in a position to expose their incompetence and corruption are attorneys. It is outrageous that judges may muzzle attorneys by threatening them with suspension or disbarment should they speak out against judicial tyranny or incompetence.

    Only if lawyers as a class cease complying with this unconstitutional travesty will this perversion of our system of government in the service of special interests be corrected. That is, of course, unlikely, as most lawyers are by nature complaisant, cautious, and circumspect, else they would do something more productive, useful, or at least entertaining, with their lives.

    Below is a sage comment the attorney in question, Morris Hoffman, made online in response to the ABA article concerning his proposed suspension for daring to speak ill of the judicial hack with which he was confronted:

    I am the attorney who is the subject of the proceeding. I have practiced for 37 years without even a complaint from any client to the ARDC, no malpractice allegations, no contempt findings, and I have represented the most challenging clients in very difficult litigation. With regard to this Judge, he removed custody of a child from the lawful custodian with whom she had lived her entire life on the day a so called “emergency” Petition for Custody was filed while post Judgment proceedings were already pending in another county. Neither of the parents nor the child had resided in Cook County for years. The Judge denied a peremptory Motion for Change of Judge filed with my appearance on behalf of the mother. The Judge had never previously been assigned to the case. He refused to follow Illinois Supreme Court Rules. During the appearance he was also advised the father to whom he turned over the child was a substance abuse addict who had repeatedly been in in patient treatment. The father was also more than $30,000 in arrears in child support, later recovered on behalf of my client. The Judge without a hearing took custody from my client, a very good mother, and turned the child over to the father. My client DID file a complaint with the Judicial Inquiry Board. It went unanswered. I did contact the Chief Judge. He did nothing. Within a matter of weeks, while Motions were pending seeking to vacate the Order, the father relapsed, was found incoherent on the floor of his home and it was necessary to get an Order of Protection in the county of the child’s residence restoring custody to my client. The father’s visitation was restricted. What kind of Judge does this? I researched his background and found that he was regarded as an egomaniac whose previous public employment was attributed to being the “drinking buddy of big Jim Thompson,” a former Governor. The Judge’s brother is on the Appellate Court and is also an alcoholic. This can be verified by an internet search. It is not true that the comment was made during a Court proceeding. It was made in a private telephone call while the Judge was in chambers. Later the issue was addressed in a letter directed to the Judge suggesting he needed to explore the possibility that he had a Narcissistic Personality Disorder and that it could be affecting the discharge of his duties. I was not found in contempt during any proceeding. After the complaints were filed against the Judge with the proper authorities, he retaliated by personally claiming my client (who had never testified) had committed perjury in an affidavit she swears is true. He then conducted a “hearing” in which he vouched for the credibility of a court employee with whom he was personally acquainted and fined my client. Later, in likely recognition of the impropriety of his conduct, he vacated the fine. As to the other two Counts in the Complaint, they are four and fourteen years old. Previously, an Administrator and Inquiry Board considered the identical allegations, found no Rule violation had occurred and the files were closed. One file was even expunged under the Rules. Despite prior closure and expungement, years later a subsequent Administrator resurrected the matters, conducted no additional investigation and concluded that the prior Administrator and Inquiry Board were in error. I will be 62 years old this year, and I am moving to Florida next year after my wife retires. Just thought you might be interested in the actual facts. Unless you read the actual record, you will not find these facts in the recitations of the Hearing or Inquiry Boards. But then they are appointed by Judges and serve under the umbrella of the prosecuting agency. I at least appreciate the repeated findings by the Commission that I have represented my clients capably. As far as the integrity of the Courts, it depends on the integrity of the human beings who serve. NO ONE should lend blind obedience or respect to institutions. This is what the German people did prior to World War II. People and institutions deserve only the respect they earn. Public servants, including Judges, are due no respect when they engage in improper or unlawful conduct. This is precisely the purpose of the First Amendment and I find no exception in that document for the justifiable and truthful criticism of Judges by lawyers. If someone out there reads the US Constitution and finds any language which would provide authority for another position, please contact me.

    July 15, 2010 - Only in Colorado? One lawyer (Brennan) is suspended for 366 days for annoying a federal judge while winning a huge verdict against the City of Denver; another Colorado lawyer is also suspended for 366 days: for felony evading (fleeing from police), driving recklessly (running eight red lights and stop signs, while exceeding 100 MPH), and intentionally ramming another vehicle occupied by others in an attempt to cause great bodily injury, then fleeing the scene of the collision.

    The suspended lawyer is Barton H. Flewelling and the decision is posted here.

    July 12, 2010 - KnowYourCOurts.com exclusive - My thoughts about 22d Judicial District Judge Douglas Walker

    Today, a Denver area reporter contacted me by e-mail with the following inquiry:
    Hello Mr. Harrington,

    I'm a reporter with [redacted] . . . I'm writing about 22nd Judicial District Judge Douglas Walker. Not sure if you're familiar with this story from February: http://www.cortezjournal.com/main.asp?SectionID=1&SubSectionID=1&ArticleID=9130

    The judge is currently running for retention and I'd like to write a profile on him concerning some of the allegations that he forced a defendant to attend his trial using a Taser. I was wondering if you knew anything about it and if I could ask you a few questions, even if the comments are off the record and for background only.

    Any help you could give me would be greatly appreciated. I look forward to hearing from you.
    Honestly, I'm flattered that anyone would care what I think about the matter, and I'd like to share my response with you:

     

    Dear [reporter]:

    I am familiar with the Judge Walker story and, at one point, even tried —unsuccessfully — to contact the defendant's attorney, Williamson, to ascertain whether what was reported really happened. Recall that Rael said in open court, "I was beat, handcuffed and tied to this chair. What's wrong with this picture? I'm not an innocent [expletive deleted], but come on, man!." He's right.

    Nevertheless, my research confirms that, in Taser cases, the "state" has the right to use Tasers, mace, and any other "reasonable" means of force to compel a person to appear in court, just as they have the "right" to use Tasers, mace, and any other "reasonable" means of force to compel a person into a squad car or a jail cell. Although I avoid lengthy epitomes (on my Web site) about police brutality, because I have very strong opinions on the subject, but not enough room or time to expound on them, I have several times written about the use of Tasers [here]. In one of the cases I examined (from the Eleventh Circuit), a Taser was used on a man who merely shouted and refused to go back to his car and retrieve registration documents from his glovebox. Another was used on Rush's guitarist for allegedly spitting at a police officer after he was handcuffed and restrained in the back of a squad car. In a recent California case, the Ninth Circuit held that it was reasonable to repeatedly Taser a late-term pregant woman, who peacefully refused to a sign a traffic citation.

    Although I did not write about the Judge Walker situation (because I was not able to timely collect enough new information to report on), I did form a conclusion based on the reported facts that this was an egregious abuse of the state's power to compel a defendant's appearance at a sentencing hearing, given that most other courts in this country have the means to allow a defendant to attend or participate in such hearings by closed-circuit television monitors. Without regard to Rael's guilt or my respect for the jury verdict in that case, I believe that a directive by the judge to "use any force necessary" to bring a defendant for sentencing (see also Mireles v. Waco, 502 U.S. 9 (1991) for a similar fact situation), brings disrepute to the legal process and undermines the dignity of the courts.

    We live in a country that has less than 5% of the world's population, but 23.4% of the world's prison population. And it is common knowledge (vis-a-vis cable programs like "Lockup") that prisons are ruled by gangs, thugs, and brutality (by both inmates and corrections officers), and where sexual predation and death are virtual certainties for the weaker inmates. Indeed, these crimes occur even in Colorado's county jails. See e.g., Sue Lindsay, 'Horrific' Rape at the JeffCo Jail (The Rocky Mountain News, July 24, 2002). And see http://www.justdetention.org. Yet, our society accepts these crimes perpetrated, facilitated, or tolerated by our government for the same reason that ordinary people don't care about the court system and can name all three judges on American Idol, but can't name three (or even one) of the Justices on our Supreme Court — until or unless the or one of their family is incarcerated or has any dealing with our courts, iPhones, PSPs, Wiis, and GameBoys are apparently more alluring.

    In my opinion, fealty to the Rule of Law includes dispensing justice with dignity, even for those who you and I believe deserve no dignity, because —as a "nation of laws and not men"— our law exists, in part, not only to protect the public from criminals, and to punish those who have violated our laws, but also to establish the high moral state that our society is supposed to have attained. Our judges and officers sully the Rule of Law whenever they act out of anger, contempt, or will, rather than out of judgment.

    Finally, no judge should be retained or ousted based solely on the alleged facts above. Whether Judge Walker should be retained should be based on his conduct, competence, and courtroom demeanor as a whole. If there is a pattern of conduct marked by facts, such as those above, I would hope that some media outlet (LawWeek, or the Durango Herald, Pueblo Chieftain, etc.) would make this known to the voters.

    . . . with kind regards,

    Sean L. Harrington



    July 7, 2010 - Arizona adopts Colorado's utopian model attorney regulation system

    The decision is not well received by all, as Arizona attorney Mo Hernandez explains here.

    Mo cites Mark Brennan's blog, which in turn cites 5280's "Power Broken" exposé.

    July 5, 2010 - Denver Post reports claims "another effort is underway to seriously alter Colorado's judiciary system"

    More propaganda from CBA outgoing Pres., Chuck Turner, regarding a worthwhile proposal to reevaluate how Colorado's judges are appointed and how long they can serve: http://www.denverpost.com/politics/ci_15441554

    July 3, 2010 - to all those looking to serve process on Sean Harrington

    7/06/2010 Update: link to official Rush.com photos from the show inluded below. A couple of photos from my daughter's Blackberry camera to be uploaded later this week.
    To all those, including Torm Howse, looking to serve process on me, I will be in the sixth row of the Rush show in Milwaukee, with my 15-year-old daughter tonight.

    You'll also find me in the 3rd row of one of the two upcoming shows at Red Rocks, and in the 5th row at the upcoming August show in St. Paul, MN. I'll be wearing a brown Aussie Outback leather hat.

    July 2, 2010 - catching up

    While studying for a bar exam for the last month, I have posted very little. Here are some stories of interest that occurred during that time, that I would've commented on if I had the opportunity:

    Jun. 28, 2010 - KnowYourCOurts.com exclusive - KnowYourCourts.com creator, Sean Harrington, threatened with lawsuit and "bar complaints" by vexatious pro se litigant and convicted felon, Torm L. Howse

    8/03/2010 update: posted Indiana Court of Appeals decision affirming Howse's conviction for battery of a minor under the age of 14, a Class D felony, and intimidation, also a Class D felony.
    7/15/2010 update: With considerable restraint and professionalism, U.S. Magistrate Tofoya denied Howse's Motion to Intervene, and recommended that his Motion for a Temporary Restraining Order be Denied.
    As if studying for and taking a  bar exam wasn't enough excitement for the last month (I returned from California just yesterday), I recently received numerous threats against the financial welfare of myself and my family in retaliation for filing a UPL complaint against Torm L. Howse. 1

    Before I provide you with some text of his e-mails to me, I would be remiss to omit some pithy prose excerpted from drivel filed a few days ago in Shell v. Henderson, et al. (No. 09-cv-00309, now pending in the U.S. Court for the District of Colorado) by Mr. Howse (pictured at right, apparently caught singing "Old Time Rock and Roll" at a local karaoke bar in Ipswich, Connecticut):

    From his June 24, 2010 "Demand" to Terminate These Proceedings, (brought putatively on behalf of the United States), Howse argued that he has, "direct, personal and ‘original source’ information materially relevant to certain aspects of both the instant case, and of various parties herein . . . uniquely enabling [Howse] qui tam pro domino rege quam pro se ipso in hac parte sequitur for Intervenor UNITED STATES sed non sub silentio." On page 7 of the same document, he claims to be clothed with the authority of the United States to temporarily empower the assigned magistrate judge to dismiss the case in excess of her authority under 28 U.S.C. § 636.

    And, in a document he filed entitled, " [Howse]'s Disclosure's and Interests Regarding the United States," Howse offers the following half-baked (pun intended) pronouncement:

    It would not be unreasonable for [Howse] to describe himself as an expert with Constitutional Law, and, indeed, even having the ability to “see” The Law, itself, as a creature in its own form, not unlike fictional Hollywood spaceship engineers who bend time, space, various materials and experimental theories, into brand new realities, and/or solutions, for the given moment at hand. For example, it would present little challenge for [Howse] to combine the Fourth, Fifth and Fourteenth Amendments, with, e.g., Gault, Winship, Adkins, Miranda, Leland, Brinegar, Mapp, Sokolow, etc., ad nauseum, sprinkle in exploration of key foundational terms like “likelihood”, “consent”, “probability”, “presumption”, and “reasonable”, mix well with the underlying intent of each of the relevant contractual devices, i.e., Offer and Acceptance, Invitation to Treat, Lack of Capacity, Non est factum, Contra proferentem, Accord and Satisfaction, Privity, Assignment, Novation, Anticipatory Repudiation, Efficient Breach, Recission [sic.], and Quantum Meruit, bake at high temperature under common law doctrines such as transferred intent, concurrence, necessity, duty of care, proximation, and rescue, add a fine glaze of renewed review into “transcendental” authorities applicable, e.g., Wolff v. McDonnell, Heck v. Humphrey, Wilkinson v. Dotson, etc., and then, upon a serving platter based within the Law of Obligations, deliver the newly-palatable cake of five (5) layers, i.e., of presenting a new structure of five (5) standard thresholds of proof for the entire American legal system, including a new, second criminal conviction standard, plus a new standard of proof that not only straddles both civil and criminal law, but is age irrelevant, in *either* direction, for, indeed, nothing is truly more important than ‘starting point’ inalienable rights of the sovereign Citizen, under founding law, except the continuity of the Republic, itself.

    According to an order by U.S. District Judge David F. Hamilton, "Tactics like Mr. Howse’s are familiar to most federal judges." Even lay readers will recognize Howse's filings as legal mumbo- jumbo collected off the Internet, hobbled together into incoherent run-on sentences that purports to surpass the legal minds of academia and the high courts, and which are vexatious, groundless, and frivolous.

    The foregoing is among seven prolix documents Howse filed in just one day in the case to which he is not a party.

    Perhaps —other than Web surfing— the reason Howse knows of Heck v. Humphrey and a few other cases, is because those cases were cited in dismissing Howse's prior frivolous litigation (such as this 3/05/2004 Order of Dismissal, citing Heck, and characterizing Howse's complaint as containing "claims [that] are entirely devoid of legal basis").  See also 1/28/2005 Order of Dismissal ("None of Howse's blunderbuss of claims survives the foregoing analysis [dismissing claims as without merit]").2 In yet another case, No. 03-cv-01661 (D. Ind.), Howse's causes of action were dismissed for his failure to cooperate with discovery.   According to one article I read recently, "Torm L. Howse . . . in 2004 tried but failed to file class action suits against 40 States."

    Here are some excerpts from various recent e-mails from Howse to me:

    • I have no money, but you do. I have never told lies about you online, but you have done plenty of that civil and criminal wrongdoing to me online, in public forums. Result?: Your money will become mine, soon enough . . . As far as your family and personal life being eventually ruined, by financial judgments against you, then you probably shouldn't have been committing provocation and abusive tactics, in the first place . . . as far as whatever normal consequences you will now be facing, again, you have only yourself to blame. But, once again, you continuing, bumbling idiot - thanks for providing even yet more proof of who your friends are . . . Holy cow, this is going to be such a slam-dunk, because, in the end, it all boils down to the documented facts of what you have been doing . . . Bar complaints are next.


    • I will only explain it once, so you can let your wife and kids know, ahead of time, WHY your lives are going to be financially ruined: You are a lying, defaming, abusive shit-talker, in general . . . you made the serious mistake of being a shit-talker about me before, and you have made the further catastrophic error by doing it, and repeating it yet again and again, more recently . . . Unfortunately for you, you picked a really bad time in history . . . I don't even CARE what others think anymore, you see, which had the unforeseen side effect of now "freeing" me to do exactly what I am most interested in life -- enforcing the moral code, and holding sinners fully accountable for their deceptive and abusive behaviors.. *especially* the particular fools who have, in their own demonstrated bad faith, mistakenly crossed legal paths with me . . . likewise, seriously impacted my income and ability to live, i.e., with 'consequential' damages involved, too . . . But, then, it's all about the money, right? I mean, that's how you LAW-LIAR types are, usually, right?? Let's see... I have no money, but you do. I have never told lies about you online, but you have done plenty of that civil and criminal wrongdoing to me online, in public forums. Result?: Your money will become mine, soon enough. Got the picture more clearly now, you pompous, arrogant ass? It does NOT matter how much more you defame me, because all of it will only result in higher damages against you, in the end. Period. End of story. Oh, and thanks much for recently providing me with a self-admitted list of your more major, big ticket assets.


    • I am no scammer [see Grieving Parents Lose Thousands to Con Artist]. I do plenty of good, hard and intelligently creative legal prowess work for people, in both state and family courts, and have for nearly a decade now. The simple truth is that several people are LIARS, and have gotten themselves into very, very deep trouble... because, I actually DO know the law, better than most people out there, and they have fucked up, royal.. really bad.. They couldn't have picked a worse situation to destroy themselves with, but the simple reality is that most of these FOOLS obviously *never bothered* to check the "facts" of these horribly false accusations, and just acted like stupid mimicking parrots... like yourself, just now... too bad for such fools, as the liability still awards me money. And, frankly, after the gang rape of the past year-plus, I NEED THE MONEY, AND I AM MOST CERTAINLY GOING AFTER THE MONEY.


      • I have several other e-mails, but you get the idea.

    A person named Ray Lautenschlager, who claims to know Howse and is familiar with the situation, has told KnowYourCourts.com that Howse is "on the run from the law with two warrants for his arrest." See also CRISPE 6/15/2009 forum post, There is a Hunt for Torm Howse by Carri Simms.

    If true, the parties to the Shell case might not only move to strike Howse's pleadings and for sanctions under Rule 11, but also move to bar him from participation under the so-called "Disentitlement doctrine."

    I have previously written about Howse on this site, `though I never called him out by name. See my April 2, 2009 post, "Why this is not a fathers' rights Web site," here.

    ____________________________________
    1 On May 3rd, 2010, I filed a UPL complaint with the Chairman of the UPL Committee in Indiana, where Howse claims domicile. Previously, I had warned Howse that I would file a UPL complaint if I received any more of his unsolicited spam e-mails advertising his purported legal services (a copy of my e-mail to him is available here, where it was posted to a message board by a person who I blind-copied).
    2 I found it interesting that the metadata for the original order revealed that the file was stored on the court's computer systems at "\\Apollo_vol1_server\vol1\Groups\ProSe\WORD\STORE\GRUMBLER\ howse\04-1530" (Apparently, that federal court stores pro se filings separately from all other filings, and has a sub-category for disgruntled [prior] litigants).

    Jun. 11, 2010 - KnowYourCOurts.com exclusive - Colorado Springs Child and Family Investigator (CFI) --or rather, Divorce Industry Expert (DIE)-- finally removed from practice (but only after he threatened to kill his client)

    For the past 3½ years, I've been making a case on this Web site against the freaks this state's courts choose to make decisions about families in custody disputes. On a few occasions, I've been vindicated (e.g., In re Hoffman).

    I have now learned that Mark Wilmot has been suspended from the practice. Wilmot was the CFI in Marriage of Hatton, and Colorado Springs mother Julie Hatton has been campaigning against him to state authorities for years -- to no avail.

    According to the May 27, 2010 Order of Suspension, Wilmot turned himself in to the Colorado Springs Police Department, where he was arrested for trespassing for refusing to leave. After his arrest, he was interviewed and stated that he needed to kill his client. A subsequent mental health evaluation determined that Wilmot is "unfit to practice."

    If only they listened to us once in a while . . .

    Jun. 9, 2010 - KnowYourCOurts.com exclusive - A letter I wouldn't have posted if I didn't think it was newsworthy

    Guest publication by Rosemary Van Gorder of Fort Collins



     

    From: Rosemary Van Gorder

    Sent: Wednesday, June 09, 2010

    To: ' (Lloyd.Malone@state.co.us)'; 'jill.tompkins@colorado.edu'

    Subject: ICWA Cases / Too Late For Daniel


    Mr. Malone, Ms Tompkins,

    I have a strong interest in advocating for families involved with the child welfare system.

    It is an interest I cultivated after observations as a foster parent in Larimer County.

    I am writing to express disappointment in the system’s failure of the Beardsley family.

    This D&N case opened in 2001, children were ages 5 and 7. Had ICWA protections been in place, taxpayers would not have the burden of a costly, lengthy, mismanaged case.

    Ms Beardsley asked for ICWA representation. Ms Tompkins told us that Fort Collins is too far from the metro service area for legal representation from the DU Indian Law Clinic.

    The court-appointed attorney she was assigned admitted after years of wasted time that Ms. Beardsley should ask for a new attorney because she didn’t know ICWA laws.

    The presiding judge publicly chastised Ms Beardsley for asking and did not assign a new attorney.

    Larimer County wrongly terminated parental rights for Daniel at age 13.

    The appellate courts overturned this decision on appeal – but it was too late.

    He ran from his adoptive home and got into trouble. Instead of finally going home, he went into the juvenile system. He went to South Dakota juvenile facilities after meager efforts to reunite.

    Last month Daniel ran away again, from a juvenile facility in Iowa. He called his mother in South Dakota. He cried. He was scared and wanted to come home. He shot two people before surrendering to the Iowa State Patrol. He will be tried for attempted murder as an adult.

    Rosemary Van Gorder



    Jun. 8, 2010 - David Lane calls for removal of judges Terry Gilmore and Jolene Blair

    The City of Ft. Collins and police defendants have settled a suit brought by Tim Masters for $5.9 million, The Westword reports. Masters' attorney, David Lane —who some regard, along with Darrold Kilmer, the de facto gatekeeper of access to court in constitutional civil rights cases in Colorado— says that's not enough: He told Westword "I hope the wrongdoers in this case — and I refer to judges Gilmore and Blair . . . receive justice . . . I hope Gilmore and Blaire receive justice at the hands of the voters this November."

    Jun. 1, 2010 - yet another "group" formed to defend the Colorado judiciary

    Here's something I wrote in October, 2008:

    This month's Colorado Lawyer, the publication of the Colorado Bar Association, included in its President's [monthly] Message to Members is a pep talk, deceptively captioned "Fair and Impartial Courts," that outlined the plan toward stemming judicial accountability initiatives across the state and nation. None of this is really news (we've covered it repeatedly in varying degrees of granularity in previous posts):

    One of the challenges our association did not have to address this year was a constitutional initiative directed at term limits for Colorado’s judges. Efforts had begun to place such a measure on the fall ballot. The CBA Board of Governors authorized an initial $250,000 to combat the measure. Ultimately, the proposal was abandoned by the proponents.

    However, challenges to the judiciary are not going away. At a recent meeting of the National Conference of State Bar Presidents in New York, a number of such measures were discussed. In 2006, one initiative in South Dakota would have allowed losing litigants to complain to a special grand jury, which then could strip a judge of immunity and allow both civil and criminal proceedings against that judge.

    The CBA must remain vigilant and be prepared to meet and respond to such challenges. One constructive effort is Our Courts, an educational program spearheaded by two Colorado Court of Appeals judges, Hon. Russell Carparelli and Hon. Steve Bernard, along with U.S. District Court Judge Marcia Krieger. The Our Courts program provides information to community leaders about the role of the judiciary and the Rule of Law. Our Courts is facilitated by sitting judges who describe and discuss how Colorado courts seek to provide fair and impartial justice. This community outreach effort must be expanded so that when—not if—another measure to undermine the judiciary is presented, more of Colorado’s voters will understand our judicial system.

    I had the opportunity to address the State Judicial Conference on September 22 and reaffirm the CBA’s commitment to work with the courts on these issues. I strongly encouraged the judiciary to continue to assist the CBA in its public education programs, including Our Courts.

    The following January, 2008 exhortation from Dave Johnson (past chair, bar association Family Law Section) is even more revealing:

    Judicial Term Limits: There may be an issue on the November general election ballot. It would apply to all sitting judges and would limit them to 3 four-year terms plus the provisional term of 2 years. CBA will carry ball on fighting this. They are worried about financial aspect. It was so expensive last time. Do as much grassroots work as we can. Discuss it with colleagues, neighbors and friends. This is an attack on the independence of the judiciary. The next step is to make the judges elected—a political process. We will be asked to contribute to the war chest. The last time we got it defeated because it would have required the immediate retirement of judges. This bill would not impose immediate retirement requirements for current sitting judges, but would limit them to three terms after their retention election after 2010. The CBA is working with ABA to try to get in touch with funding sources. ABA won’t write checks, but they may have a list of people that might give $$. The CBA will be looking to out of state funding sources to lessen the financial burden on Colorado. Look for people gathering petitions —listen to them to see what they are telling people about the legislation— report back to Melissa at CBA so that we know. Write letters to the editors of local papers. Term limits are a popular concept with voters—until the consequences are explained. Can we raise money within the section—can we do a fundraiser? Can we take up a collection from the members? The CBA will probably form another nonprofit that members can give checks to.

    Make no mistake about it, folks. This is a battle and it's politics at its core.

    And so, today, Law Week Colorado reported (here) that "Well-known figures in Colorado legal circles have quietly filed paperwork creating an organization to defend the state’s judiciary." The group is called "The Judiciary Project," and claims its mission is to "educate voters about Colorado’s judicial-retention process." An earlier report is here.

    If we are to take them at their word, the mission seems rather redundant. It is one also claimed by the Colorado Judicial Institute and the "Our Courts" indoctrination program.

    Jun. 1, 2010 - FINALLY: The story I've been waiting over two years to break!!!! Judge who surfed porn from chambers SUSPENDED from practice of law for two years

    Oh, you thought I was talking about Nottingham? Sorry. But keep reading.

    Regular readers know that I have been campaigning for several years about selective prosecution and capricious and arbitrary enforcement of Colorado's Rules of Professional Conduct by the so-called Attorney Deregulation Council. Few others pursue this line of reporting, but today Law Week Colorado did so on its front page, reporting one attorney's complaint that “the attorney regulation office didn’t fully investigate all [his] allegations.” OARC Czar, John Gleason, retorted, “Unlike [the complaining attorney], this office has to rely on the law and the facts.”

    For my part, I have highlighted several cases as examples, including OARC v. Brennan and OARC v. Maynard, along with scores of disregarded complaints (posted here), and I have written scores of articles on the topic on this blog. Some of these articles have been picked by Alan Prendergast of the Westword (e.g., Attorney regulators love "egosurfing" critic's website, Dec. 11, 2009).

    Most recently, Alan commented on my pursuit of an attorney disciplinary complaint regarding a former chief federal judge, "Fast Eddie," in an article captioned, "Edward Nottingham: "Naughty" non- investigation proceeds with relentless inertia."

    More recently, Law Week reported that there was a "break" in the Dever Players prostitution scandal. Not sure if anyone noticed, but there was nary a mention of the former chief federal judge (or any of the other allegedly-involved attorneys, judges, or public officials alluded to in the prior mainstream media coverage).

    Regularly readers may recall that the substance of my own newsworthy complaint against Nottingham was that he was reported to have been surfing porn sites from chambers (Channel 7 - ABC: "Complaint Alleges Judge Viewed Porn in Chambers"), at about the same time that he wrote in an Order that he didn't have time to read my brief, as required under Fed.R.Civ.P. 72(b).

    And so I was reminded of this scandal, when I learned of the following today from the California Bar Journal (reminding us again that things are indeed different in Colorado):

    [A judge] was suspended for two years, stayed, placed on two years of probation with a 30-day actual suspension and was ordered to take the MPRE within one year. The order took effect Oct. 29, 2009.

    While sitting as a judge in the Fresno County Superior Court, [the judge] used the county’s computer system in his chambers to access porn sites. His actions occurred during business hours as well as weekends and non-business hours during the week. When confronted about his inappropriate computer use, [He] admitted he accessed sites containing sexually explicit materials over an eight-month period.

    He was privately admonished by the Commission on Judicial Performance.

    In addition, during two television interviews, he denied using his court computer improperly and made other misrepresentations. He later threatened to sue the TV station if it aired the allegations and again denied them. When portions of the interviews aired, [the judge] read a statement that retracted his earlier denials.

    He stipulated that his actions, which violated the Code of Judicial Ethics, also violated the law and constituted moral turpitude.

    So, in Colorado, attorneys like Mark Brennan and Alison Maynard are effectively banished from the profession, but many others, like Nottingham, are free from any investigation whatever (let alone discipline).

    June 01, 2010 - 5280 ("Denver's Magazine") exposes Colorado attorney regulation as a sham

    From the June, 2010 5280 article, "Power Broken":

    Citing attorney regulation protocol, Gleason said he was not able to disclose the nature of [the accused's mediation with OARC], but this much is certain: On the other side of that meeting, the OARC imposed the sort of punishment that the investigators, according to their report, did not think would be sufficient. The OARC . . . allowed [the accused] to maintain his law license and practice in Colorado . . . In a recent interview, Gleason said that all of what his office did in its investigation was by the book. He told me, "Our presumption is that people tell us the truth." . . . So on whom did Gleason and the OARC rely for the "truth"?

    Many of the sources I spoke with were terrified of [the accused]'s character. Two of his former employees broke down in tears during my interviews with them. At least three said they had gone for counseling, in no small part because of working for [the accused]. They asked for anonymity because they feared what might happen if they ran into [him] in town after this story. Other sources did not want to go on the record because they were concerned that [the firm partners], and their nexus of relationships in the legal community would make it difficult for them to keep their current jobs or prevent them from getting new ones in the small fishpond of the Denver legal community. This was why some of my sources who were not contacted by the OARC did not reach out to investigators. Gleason scoffed at the notion that witnesses and potential witnesses were reticent to speak because they feared such things. He said it was "baloney."

    When I informed [one of my sources] of the OARC's decision in [this] case, the source's reaction was, "It's a sham." . . . I asked Gleason who was advocating for the public; I said [the accused] was publicly censured, but he is still practicing law. "Yes. I 100 percent agree with you. People make mistakes. The discipline rules have various levels of mental intent. We discipline lawyers who engage in minor mistakes with private discipline. Lawyers like [the accused] who lie are disciplined publicly. And sometimes lawyers are more severely disciplined than [the accused] because their facts are more aggravated than [the accused's]. That doesn't make you or the public feel any better about it. I understand that."

    Maximillian Potter must've struck a nerve with Gleason: According to Law Week Colorado, Gleason "took issue with several points of Potter’s article," and said, “Unlike Mr. Potter, this office has to rely on the law and the facts.”

    May. 27, 2010 - Presiding Disciplinary Judge and Hearing Committee suspends Alison "Sunny" Maynard for another year and a day, and concludes that her conspiracy theory implicating the "Attorney Regulation Counsel, the courts, and others" warrants an evaluation by a psychiatrist as a condition precedent to readmission.

    We, with the help of Colorado Law Week have covered this story in detail on this News & Comment page and on a Web page containing some of Ms. Maynard's litigation (here). As familiarity therewith is assumed, the Order and Decision Imposing Discipline and Sanctions is posted on that page and comments, as always, are welcome via e-mail.

    May. 18, 2010 - What is the prescription when Chief Justice Directive is regarded as a suggestion, rather than an authority -- a lower court judge must issue an Order directing parties to comply with it?

    Yes, that is what is happening in the Fourth Judicial District. Apparently, as a result of the cacophony of "disgruntled" litigants (i.e., a litany of complaints from parents who've been fleeced in family court by the judiciary's minions), Chief Judge Samelson has issued an Order Concerning CFIs requiring CFIs to comply with CJD 04-08 and local rules, and to possess and provide proof of de minimus training. The Chief Judge designated the APA Model Standards of Practice as aspirational guidelines. The Order goes into effect June, 2010 to give CFIs ample time to prepare to meet the undue burden imposed by this Order.

    Note that compliance with CJD 04-08 is an issue on appeal in one of my pending cases (here).

    May. 18, 2010 - Another anecdote from the Colorado Divorce Industry

    Guest commentary by Janice Whitaker
    The role of the CFI in Colorado is very powerful. As the “investigative arm of the court”, CFIs enjoy absolute immunity, are not subject to any regulation, report only to the appointing judge (with whom they are often quite chummy in and out of the courtroom). The opinion of the CFI is omnipresent and almost always adopted by the appointing judge. The same is true for court-appointed Child Legal Representatives, Guardians ad litem, Decision Makers, and Parenting Coordinators.

    However, some of this may be about to change through parents raising awareness as a result of KnowYourCourts.com and other efforts. Colorado needs change to prevent more children and families from being harmed by Court-appointed professionals who operate behind a veil of secrecy, are not currently held accountable because of quasi-judicial immunity, and by various agencies claiming lack of jurisdiction.

    I encourage you to submit valid complaints backed by factual evidence to continue raising awareness and the need for change.

    Complaints may be submitted to: These foregoing are not a substitute for the appeals process.

    Although Chief Justice Mullarkey did not respond to a January, 2007 memorandum from parents, and although many of this state's legislators have been non-responsive to e-mails and other inquiries related to this topic, recent testimony by parents before the House Judiciary Committee against SB09-069, and Recommendation 69 A-F of the Final Report of the Commission on Families in the Colorado Courts (August 2002) resulting in tasking the State Court Administrator's Office, Family Law Program to make recommendations for CFI and PC reform by September 2010. It is unknown at this time who may participate in the final review and approval of the recommendations.

    I learned all this by unknowingly becoming a target in Colorado's Divorce Industry by losing my 9 year old son based on false allegations of child abuse reported by a court appointed Child Family Investigator (CFI) Dr. Marian Camden to Social Services in November of 2005. Her allegations included emotional abuse, parental alienation, and Munchausen’s by Proxy. She removed my son of her own volition, without an evidentiary hearing, in violation of C.R.S. 14-10-129(4).

    I have since been exonerated of all allegations by Colorado’s Department of Human Services in 2007. The Child Abuse and Prevention Act was amended in 1996 eliminating immunity for those making false reports; however, I have been unable to hold the CFI accountable due to the quasi-judicial immunity granted by C.R.S. 12-43-215(7) to court appointees in Colorado.

    I am a professional with a Top Security clearance by the Department of Defense. As a result of the CFI's report to Social Services, I was remanded to supervised parenting time for almost 450 hours over three years and then unsupervised parenting time for the past year and half. I have seen my son only 18 hours a month with no telephone contact for more than 4½ years. I have had no overnight visitation, holidays or vacations with my son who has since become an adolescent. I have been financially and emotionally decimated by this case, spending well in excess of $200K to defend myself. My son, his sister, his maternal family, and I have lost years of his childhood and adolescence due to the manufactured child abuse charges by the CFI.

    Previously, I had 60/40 physical custody and joint decision-making of my young son as recommended by the first CFI. Dad was not happy with this initial custody decision as he always wanted sole custody. Two years later Dad’s attorney2 brought her personal Facebook web page listed ‘friend’ into the Family Court case as a CFI to launch a new investigation to get Dad sole custody.

    One of the methodologies that CFIs or PREs frequently use to remove children or frame parents is to distort, misrepresent, or suppress the psychological profiles from her own psychological testing instruments. The Family Court Judges and Magistrates of course are not psychologists and follow blindly along with any testimony or recommendation put forth by the CFI. A parent has a right to all of the CFI's file, psychological reports, and underlying raw data prior to any scheduled hearing for which the CFI was appointed, per Chief Justice Directive 04-08 Standard 12 and to release their raw psychological data to another licensed professional per C.R.S. 27-10-120 (1)(a).

    Once the case is closed and the CFI dismissed, the unknowing parent has no access to the raw psychological data which can either prove or disprove their innocence per Chief Justice Directive 04-08 Standard 13.

    Psychological testing must be objective and scientific, using standardized tests - the Minnesota Multiphasic Personality Inventory-II (MMPI-II)3 and the Millon Clinical Multiaxial Inventory–III (MCMI–III)4 decided in People v. Ramirez, 155 P.3d 371 (Colo. 2007. The reports are produced in two formats; one for the normal population and one for those involved in Custody litigation (aka Caldwell Report). It is very important the Caldwell Report is used as it is tempered for the additional stress one is under in a family court situation. There are norms for them to be considered "valid".

    The MMPI-II is the objective test, consisting of true and false questions. The MCMI-III (with more true and false questions) should not be given unless serious psychopathology is discovered from the MMPI-II and never should be given as a standalone test. Rogers, Salekin, and Sewell (1999) concluded that the MCMI-III taken as a stand alone test lacked sufficient diagnostic validity for Axis II disorders and did not meet the Daubert standard (i.e. criteria put forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993 for scientific admissibility).

    Parents need to know the MCMI-III test report can indicate a valid result, until you refer to the manual and reference the custody standards. The manual confirms a high Desirability score makes it “perfectly legitimate to consider the findings a null result” in custody evaluations. Mothers need to know the Histrionic and Compulsive Personality scales tend to be elevated in women custody litigants as well as Borderline Personality Disorder is the hallmark diagnosis for claims of emotional maltreatment and enmeshment.

    The February 4, 2010 Colorado Bar Association Family Law section newsletter interview with Attorney Ann Gushurst states that it is widely known in the Colorado CFI and Family Law Community that the Rorschach (inkblot) test does not give reproducible results and is not regarded as a scientifically valid test under the Daubert principles in Federal Court. The Daubert Standard is applied in Colorado law in People v. Shreck, 22 P.3d 68, 77-78 (Colo. 2001) and Ramirez, supra. The test and answers can also be found online at http://en.wikipedia.org/wiki/Rorschach_test.

    Other subjective tests that should not be used are the Thematic Apperception Test (TAT), Sentence Completion Test (SCT), Projective Drawings, nor should Social History or the Wechsler Intelligence test (WAIS-III) be used to determine parenting skills.

    ___________________________
    1 Find your Administrator by clicking through the links Courts / By District / 18th Judicial District / Judges and Staff / Administration. After review at the District level, complaints can be escalated to the State Court Administrator's Office Family Law Program Manager.
    2 Aug. 13, 2009 - KnowYourCOurts.com exclusive - Family Law "Institute" or thieves' den? http://knowyourcourts.com/News/2009-3Q.htm
    3 http://en.wikipedia.org/wiki/Minnesota_Multiphasic_Personality_Inventory
    4 http://en.wikipedia.org/wiki/Millon_Clinical_Multiaxial_Inventory
    5 Rogers, Richard. Salekin, Randall T. Sewell, Kenneth W. “The MCMI-III and the Daubert Standard: Separating Rhetoric from Reality”. Law and Human Behavior. Vol. 24, No. 4, 2000. http://www.springerlink.com/content/l12277t2q5uu4t01/fulltext.pdf?page=1. Last retrieved March 21, 2010.

    May. 14, 2010 - "The Ann Arborist: A new blog on constitutional law

    An occasional contributor to this Web site has started a new blog, The Ann Arborist. Check it out.

    Meanwhile, as I mentioned previously, I've been studying for a June bar exam (and also began my second year of law school in April), and therefore have neglected my obligations to keep this News & Comment section updated. The pass rate last year for the particular exam I'm taking was only 20%, and in past years has been as low as 11%. I'm not keen about taking this exam (at $650 each attempt, exclusing travel costs) more than once, so I'm trying to set aside ample time for practice essays, studying, and rote memorization.

    May. 07, 2010 - CBA President Dave Johnson to judges: "Your comments and feedback regarding bench and bar relations have been well received; attorneys, commentators and bloggers: not so much"

    For context, please read my January 10 and November 25th entries (below) before reading this post.

    In Part Deux of his "Improving Bench–Bar relations" monologue (appearing in the May issue of The Colorado Lawyer, CBA President Dave Johnson, Johnson wrote the following (of particular interest to me and, perhaps, my readers):

  • I received comments not only from Colorado judges and lawyers, but also from commentators and bloggers. Some comments criticized the judicial system as being corrupt and political, but did not offer any practical solutions. [Thanks, Dave. I'll be sure to send you a lump of coal for Christmas this year instead of a card. --Sean]


  • I heard from attorneys as well, including some very specific complaints about specific judges (for example, demeanor or slow rulings) . . . Members of the Bench and the Bar must acknowledge that some judges and some lawyers don’t do a very good job; however, simply bashing the system is not helpful.


  • [Nevertheless], I did not receive many comments from the Bar. I suspect that this low response rate is due in part to how busy people are and in part to the impression that no matter what suggestions or recommendations lawyers might make to the Bench, no real change will be forthcoming. This implies a sense of futility on the part of the Bar, which, if true, is regrettable.


  • Representative comments and suggestions from these judges, some paraphrased, follow: . . . "Regarding attorneys who are afraid to give judges face-to-face negative feedback, they should be." . . ."I know I am not doing everything as well as I can and I would welcome constructive criticism; however, there may be no effective way to accomplish that goal. . . . "The majority of judges I know appreciate feedback. As you might suspect, there are some whose self-esteem seems to be inexorably attached to the robe such that their skin is a bit thin. To those I say, 'Get a life and come back when you can handle it.'" . . . "As a judge, I also want honest feedback."

    • I will post the entirety of Johnson's article later this evening or over the weekend, since some of my quotes (hereinabove) may be construed as out-of-context.

    May. 01, 2010 - KnowYourCOurts.com exclusive - latest noteworthy developments for some Colorado Divorce Industry Experts (DIEs)

    Sorry for the lack of writing, folks; I've been busy studying for a bar exam in June.

    • Today, May 1st, is the end of one year of practice disciplinary supervision for the "respectful parenting" author of "Got the Baby. Where's the Manual?", Joanne Baum. Maybe now she can author a new book, "Got the Degree; Where's the Manual?"


    • On April 27, 2010, the State of Nebraska issued a Cease and Desist Order regarding Colorado Springs practitioner, Mark H. Hoffman (the same who was the subject of The Westword article, " KnowYourCourts busts a rogue shrink").


    • Finally, on March 25, the American Psychological Association revealed an ongoing investigation concerning Bill J. Fyfe by issuing a request to complainant to supply specific documentation referenced by the Complaint.

    Apr. 27, 2010 - KnowYourCOurts.com exclusive - Sean L. Harrington to apply for Executive Director of Colorado Commission on Judicial Discipline

    William Campbell has been the interim director of the esteemed Commission ever since "Dr. Rick" left the building (after twenty-three years of sitting on his ass typing out go-pound-sand letters and doing seminars here and there).

    On Friday, April 23, the opening was posted here and, based on the Web traffic I'm seeing to my site regarding the Commission, this must be the reason why.

    So, I've decided to try out for the job. Oh sure, I realize that I'm only a law student and that the posting states that it requires a law degree and admission to the Colorado bar, but I suppose that's just a suggestion, not really a requirement. After all, if John Gleason could be selected to be the Czar of the Attorney Regulation Counsel those many years ago, I probably have a decent shot.

    Apr. 26, 2010 - KnowYourCOurts.com exclusive - Update on 2010cv02975, Denver District Court

    I've received several inquiries about what happened at the 4/23 hearing & deposition. Let me say simply that, in the spirit of a global settlement that materialized unexpectedly, I will say very little. My opponent's Motion to Quash and Motion to Transfer Venue were both denied, and her objection on the basis of privilege was overruled. My opponent's request for the transcript of the proceedings and the deposition to be sealed was also denied.

    I can also reveal --because it is in the court record (specifically, the transcript, which is available to the public)-- that, when the judge asked my opponent if certain billing records we were seeking (which are discussed in greater detail in another deposition transcript, here at pp. 43-45), my opponent stated that she probably would be unable to produce those particular records, because her billing system "went down," affecting those particular dates.

    At that very moment, I interjected that the parties had acknowledged in 2005 that they had a past duty to preserve and produced the 12/02/2005 Joint Scheduling Order where it is memorialized (see § 7(h)(5) at 23), and I advised the court that, if my opponent could not produce those records, a spoliation finding would be warranted.

    Also, on Sunday, I met with Leslie Hansen, the Chief Deputy D.A. for Arapahoe County, who will be running for the office Carol Chambers will vacate when her term ends. We had a lively discussion about the state of the Colorado legal community, bench, and bar, among other things.

    Apr. 25, 2010 - Candlelight vigil held on Capital steps in memory of children who died in hands of the State and those living who are alienated from their parents

    A handful of parents --or should I say a busload-- weathered a cold and pouring rain to remember the thirty-five children who have died while in placed with or by Colorado's Child Protective Services.

    Reading from a prepared statement, one of the event's organizer's, Sheryle Hutter, spoke to those gathered:

    We are here this evening to promote awareness of the growing concern for the well being of our children as they are taken from 2 parent, biological families and placed in situations that are often at “high risk.”

    We celebrate our children and remember the 35 children that have died…13 publicized in 2007, 9 in 2008, 16 in 2009 all while under the supervision of Health and Human Services and Child Protective Services.

    The Colorado Budget requests funding for foster care services for over 18,000 children . . . Why are these children being [taken] from biological families? It's called the Almighty Dollar. If we had a candle for every child that is being impacted by this, the sky would be lit up world wide.

    We ask "Why?" Social acceptance of [widespread] divorce is wrong. Colorado needs to become a leader in saving relationships and marriage and protection of our children. It is reported that 50% of children across the nation are born to single mothers and many many children are at risk of abuse and are alienated from one parent/family. Families and family advocates are retaliated against, but children are the real victims.

    We have asked Governor Bill Ritter to proclaim April 25 as Parental Alienation Awareness Day, and he has denied us two years in a row even though the horrible history supports the need for more awareness of this Colorado problem.

    Our request is that our Colorado Legislators see the real issues and will support our request by sponsoring a bill that will identify a division that is responsible for the enforcement of parenting times ordered by the courts without a return to court -- this is only equitable, as law provides for the enforcement of child support obligation, but currently does not provide for the enforcement of parenting time orders.

    Tonight we are happy to have members from many Colorado groups here to support our alienated parents and families.

    Finally, to our Colorado legislators: Think about “real protection” and the “best interest” of the child and leave them with both biological parents whenever possible. When that is not possible, enforce parenting time orders and punish parental/family alienation.

    Thank you for coming tonight. Please light a candle for your child/children and all children, parents, and families that are being destroyed by the system that is supposed to be there to protect them.


    DHS looks into cases of 2 Larimer infants who died
    The Associated Press
    Posted: 03/01/2010


    FORT COLLINS, Colo.—Internal investigations are under way into how Larimer County social services handled the cases of two infants who died while under monitoring by the state.

    Chad Munoz of Fort Collins died in January 2008 and Summer Moon Hawk of Loveland died in January 2010. They were being monitored by the Department of Human Services because they were born with marijuana or alcohol in their systems.

    An autopsy said Chad died of blunt-force trauma to his head. His father, 26-year-old Juan Munoz, is serving a nine-year prison term after pleading guilty to reckless manslaughter.

    The coroner rules Summer died of pneumonia. Police say she and her mother, 20-year-old Kaylynn Davis, lived in a cold garage. Davis has been arrested on suspicion of child abuse.
    Report: State did not finish child death reviews
    The Associated Press
    Posted: 03/17/2010

    FORT COLLINS, Colo.—Officials charged with reviewing the deaths of children who were under state supervision failed to complete reports for 10 of 11 cases since 2008, according to a news report published Tuesday.

    The Fort Collins Coloradoan reported on the incomplete reviews after obtaining e-mails from the Department of Human Services through an open records request. The purpose of the reports is so state and county officials can identify and correct mistakes so they're not repeated.

    Republican state Sen. Josh Penry called for oversight hearings after learning about the incomplete reports. DHS Executive Director Karen Beye told the Coloradoan that officials addressed any issues that needed to be corrected after a child's death even if a report was never completed.

    "I'm glad that we've been able to work through process behind the scenes and if we have erred somewhere, it is in not finalizing the report and not in addressing the issue," she said.

    Still, Beye said the reports should've been completed in a timely fashion. "The message to staff about the priority of getting these reviews should have been much stronger," she said. "I should have required a written process with checks and balances to make sure these were done."

    Beye said that since last week she has begun requiring monthly status checks on reports. She also said reports will now be subjected to deadlines.
    Bill to better protect kids clears Colorado Senate panel
    Posted: 03/13/2010
    By Colleen O'Connor The Denver Post

    Mary Ann Hartman told the state Senate Health and Human Services Committee that she repeatedly alerted the El Paso County Department of Human Services that Alize Vick, a 2-year-old in foster care with her neighbor, was being badly abused. She even recorded the abuse when she heard it over a baby monitor.

    Despite her evidence, and a visit by a social worker, Alize was never removed from the home and died from head trauma.

    "Think about Alize Vick and how she might possibly be alive today if I had someplace else to go with my concerns," Hartman told the committee Thursday as it considered a bill that would create an advocate's office to protect children through independent oversight.

    According to committee testimony, 35 children in Colorado's child-welfare system have died in the past three years.

    On Thursday, the committee passed the bill, 7-0.

    That same day, Sen. Josh Penry, R-Grand Junction, and Sen. Kevin Lundberg, R-Berthoud, sent letters to Gov. Bill Ritter and Attorney General John Suthers, and Karen Beye, executive director of the Colorado Department of Human Services, demanding an independent investigation into how the state reviewed the 2008 death of a Fort Collins infant, Chad Munoz.

    The Department of Human Services started the child fatality review that same year, but it was forgotten for 15 months because employees had left the department, according to Beye.

    Lundberg, a co-sponsor of the ombudsman bill, SB 171, said the letter "highlights one of the most egregious cases, but there are scores of situations that should have been done better, and could have been done better, had everyone known there was more transparency to the process."

    The current bill puts the ombudsman office in the Department of Human Services. But Penry said he is contemplating an amendment that would put it in the office of the attorney general.

    "We need someone with a totally fresh set of eyes, and this wouldn't be without precedent," Penry said.The Office of the Consumer Counsel, "a watchdog for the utilities commission," he said, is placed in the attorney general's office.

    Lundberg wasn't "entirely happy with it being in (DHS), but if that's the best we can get right now to move forward," then he supports it, he said. His major concern, he said, is that "the ombudsman get full access to all information, so it's not just a rubber stamp.""This needs to be an independent area, and if it isn't going to work that way, and there are people holding us accountable, I'm going to be out front cheering them on," Lundberg said.

    Apr. 23, 2010 - KnowYourCOurts.com exclusive - Harrington to argue in Denver District Court today

    Sean Harrington will be appearing in Courtroom 8 in Denver district court at 10:30am. The case is here.

    Apr. 18, 2010 - Court of Appeals has moved

    Over the weekend, the Colorado Court of Appeals moved to its temporary location. If you're filing an appeal, make sure you mail it to the right place:

    Clerk of the Court
    101 West Colfax, Suite 800
    Denver, CO 80202

    Apr. 15, 2010 - KnowYourCOurts.com exclusive - Announcement may be due soon in the Denver Players/Sugars prostitution case

    I received credible information through a process known as "aggregation and inference," which has led me to believe that some activity in the Denver Players/Sugars scandal may be forthcoming.  This, in turn, led me to contact a reliable secondary source,1 who indeed confirms that an announcement or development in the investigation is likely imminent.

    In a related matter, regular readers may recall, as recently reported here and by The Westword (here), that the Nottingham attorney disciplinary investigation was placed in abeyance, and that this could only be appropriately due to a pending criminal investigation.

    When I asked my source whether it was true that "other judges and high rollers" were involved in the scandal, the answer was "Yes," but that there were reasons [which I cannot disclose were valid or invalid, and, further, am without sufficient information to speculate] why no further information has been forthcoming about the other parties.

    __________________________
    1 "Secondary," means simply that the source would not likely have direct access to operational information, but may have access to one or more persons who does.

    Apr. 14, 2010 - Jack Berryhill on depositions

    In this month's issue of The Colorado Lawyer, the esteemed and learned Jack Berryhill (the very same, who contradicts himself in various rulings in the same case in his zeal to impose a pre-determined outcome -- see April 7 entry, below), has published an article on the use of depositions in trial practice. 39 Colo.Law. 4 at 49.

    Now I know why Berryhill never read (as I argued here) a report of attorney misconduct I filed in "his" court — he was too busy preparing his article.

    Nevertheless, the article proves that, indeed, Berryhill (or, perhaps, his law clerk) really can look up the Rules of Evidence and relevant case law (the sort of legal acumen and attention to detail that was missing from his treatment of the issues presented in my ongoing case).

    And, indeed, it is ironic that his article should focus on the topic of depositions, as he took no notice of my ex-spouse's recent damning deposition, in which she admitted that the divorce probably would not have been a high conflict case lasting ten years but for [Mxxxxxxx Wxxxxx]'s improper personal involvement, that Mxxxxxxx knew where mother was hiding my child from me in another state, while denying such knowledge to attorney disciplinary authorities, and --among other things-- that Mxxxxxxx knowingly filed a Motion in Colorado regarding jurisdiction, when she knew that an injunction had been entered in Texas (by stipulation of mother) prohibiting the filing of such actions.1

    But, of course, I was recently vindictively fined $6,220 by Berryhill —probably as payback for reversing the judge in this case several times in a row on appeal, and for not being a complaisant, suck-up— for calling these matters to his attention.

    That fine is now on appeal.

    _____________________________________________
    1 Name has been redacted pursuant to stipulated agreement.

    Apr. 14, 2010 - Mark Brennan starts his own blog

    Apr. 13, 2010 - KnowYourCOurts.com exclusive - Texas judge orders the appearance of Mxxxxxxx Wxxxxx

    Today, Mxxxxxxx "turn-the-other-cheek" Wxxxxx was served with a Texas subpoena, issued at my instance, and upon the order of a Texas judge. She is to be deposed at a law firm conference room in Denver on Friday, April 23, 2010. The case is In re the interest of S.H., a minor child.1

    _____________________________________________
    1 Name has been redacted pursuant to stipulated agreement.

    Apr. 12, 2010 - KnowYourCOurts.com exclusive - “I Treat This As An Honorable Profession”: OARC v. Maynard

    By Ken Smith, J.D.

    As part of our continuing (and for the most part, exclusive) coverage of the Colorado Office of Attorney Regulatory Counsel (“OARC”), KnowYourCOurts.com was granted the privilege of videotaping the trial of Alison Maynard before Presiding Disciplinary Judge William R. Lucero. And in this story, context is everything.1

    A “trial” in attorney discipline isn’t a traditional trial. The rules of evidence are relaxed, and decision-makers are hand-picked by and serve at the pleasure of the Colorado Supreme Court.2 Thus, judicial independence is noticeable only by its absence. And, while Judge Lucero looked and acted every bit the part of the typical trial court judge, the other two “judges” were not even practicing attorneys. One was a layperson and the other, a teacher. Although members of the tribunal could ask questions, they rarely exercised that prerogative, thereby giving the all appearance of it being a bench trial. This wouldn’t be so constitutionally problematic, except that the judge, jury, and executioner all work at the pleasure of the Colorado Supreme Court.


    The OARC: Your Tax Dollars At Work

    Despite the fact that expanded media coverage was unopposed in a previous case, the OARC objected to KnowYourCOurts’ request, asserting that “the PDJ courtroom has very limited space, and is not large enough to sustain such an additional presence.”3 But in reality, it wouldn’t have been the slightest bit problematic, if not for the fact that a phalanx of OARC employees watched the trial for hours on end.

    As Coloradans, we are paying these people a hundred large a year to sit around on their duffs and watch trials? When Judge Lucero was asked about this on a break, he sort-of chuckled and said, “I have no control over that.”

    Judge Lucero is right out of Central Casting: a distinguished, affable, and eminently gracious fifty- something gentleman: the antithesis of Ed Nottingham. He appeared to enjoy his work, and showed uncommon patience at times when the combatants were attempting to develop antidotes to No-Doz. Prosecutor April McMurrey is a long, lean, short-haired terrier who displayed all the organization of an attorney who had access to unlimited resources. Respondent Alison Maynard is a fifty-something sprite of a brunette: a beleaguered solo practitioner, who could not expect to match her opponents resources. Though Maynard’s knowledge of the subject matter was vastly superior to that of the inexperienced McMurrey, the resource disparity and limited access to discovery, coupled with illness, led at times to a weak and disjointed cross-examination.


    “You Can’t Talk To a Man With a LAWYER In His Hand”

    It was an episode of Billionaires Behaving Badly. The instigator of this unfortunate chain of events was Denver-based billionaire Gary Magness, who isn’t known for much of anything aside from winning the pre-birth lottery.4 He subdivided a ranch and ostensibly, got tired of having the little people drive by his barns.5 Hence, he bought a lot in an adjacent subdivision on the end of a cul-de-sac, with the intent of building a road from his subdivision into it.

    Billionaires can be persuasive -- just because. Magness somehow persuaded the Park County Commissioners to authorize this proposed road, which just happened to cross George and Patty Barilla’s property. Understandably, both the Barillas and the homeowners’ association objected . . . which is where Alison “Sunny” Maynard stepped in.

    To make this tortuous tale short, Magness acted with the Tiger Woods-class sense of entitlement one comes to expect from a billionaire.6 Rather than let legal proceedings take their natural course, Magness bulldozed a road across the Barillas’ property, destroying any and all trees in his path.7 According to representations at trial, Magness lawyer Jack Levine told the Barillas he had the money to outlast them, but on account of Maynard’s herculean efforts, the Barillas ended up outlasting Magness. Bottom line, after four lost civil appeals and eleven years of acrimonious litigation, he couldn’t build his road.8 The final score: about $100,000 in damages, and well over $1,000,000 in legal fees.

    For most of us real people, the art of the deal is working out an arrangement where everyone gets something, and everyone walks away as happy as possible. But at the end of the day, in this case, Gary Magness appears to have been the victim of bad lawyering. Common sense asks you, “Should we?” To which, the lawyer declares, “Yes, we can!”

    To paraphrase James Carville, when you drag a million dollars through a Seventeenth Street law firm, you know what you’ll find.9 When you have a client like Gary Magness, you are under enormous pressure to keep him happy enough to pay your $435 hourly bill,10 and billionaires don’t like to lose. So, what do you do as a lawyer? You do the only thing you can do: serve a healthy dose of revenge on the bastard who done ya.

    Welcome to the world of dueling grievances … the lawyers’ version of foreplay.


    “I Treat This As an Honorable Profession”

    The Maynard trial certainly would have brought tears to Stalin-era Soviet prosecutor Andrei Vyshinsky’s eyes. From the outset, everyone in the room -- including Maynard -- appeared as though they knew the outcome was a foregone conclusion. But when Judge Lucero spent roughly a half-hour cross-examining Maynard, while prosecutor McMurrey essentially sat there knitting and the other members of the Hearing Board performed their best upholstery impressions, any pretense of judicial neutrality or collective decision-making evaporated.

    In essence, a disciplinary trial consists of an attorney’s opponents coming into the hearing and dumping as much “dirt” as possible on you. Sure, your opponents are under oath, but that counts for naught. The one grieving her, Baker, Hostetler partner Rebecca Alexander, 11 had her Richard Nixon Moment.12 When Maynard inquired as to who was paying her to testify at the hearing, she claimed that she “didn’t know”; this bore the distinct odor of a tacit admission that she intended to bill her time to Magness, as the only ethical answer was that it is non-billable.13 Still, the most intriguing witness was Michael Schaefer.

    A bulbous man in his mid-sixties, Schaefer nonchalantly held a roll of documents in his hand as he talked to McMurrey before being called to testify. As he held his right hand up to be sworn, he held the stack in his left in full view of the tribunal, being seemingly careful not to reveal them to Maynard. He covertly shifted them to his right as he approached the witness chair, referring to them at least twice during the testimony. At the end of the testimony, waiting for Maynard to put her head down, he deftly slipped his notes in the inside-left jacket pocket of his suit. It was clear from his actions that it was not the first time he had done this.14

    A practicing lawyer for thirty-eight years, Schaefer knew well that it was improper for him to testify via notes, and the way he shifted those papers, they were in plain view of both the panel members and prosecutor McMurrey. As the witness chair was just to the left of Judge Barbara Laff (a teacher and semi-retired attorney), what he was doing had to be painfully obvious to her. And, it is equally obvious to see why Judge Lucero did not want witnesses to be videotaped.

    This wouldn’t have been a problem in a traditional court proceeding, as the presiding judge doesn’t normally get a chance to examine witnesses. As a general rule, it is up to the parties to figure out whether a witness is testifying from notes, but in a tribunal where the Hearing Board members have the prerogative to question witnesses, a lapse like that is inexcusable. The Board is on notice that the testimony they were being given was hearsay, and the Office of Disciplinary Counsel is presumed to be the guardian of truth and justice in the Colorado legal universe.

    During cross-examination, Schaefer had the distinct sound of a man close to a nervous breakdown, if not insanity. He dropped a bombshell, in declaring that he had turned in his license, on account of Maynard.15 When she asked why, he responded in a meager and broken voice:

    Part of the reason is standing in front of you. Thirty-eight years. [unintelligible] part of the system. [unintelligible] I don’t want to continue. I treat this as an honorable profession. I don’t want to continue with you still holding a license. 16

    Let’s put this in perspective: Here is a veteran attorney, who snuck crib notes onto the witness stand when he knew that it was unethical to do so, in front of a tribunal that should have known that it was inappropriate for him to do so, declaring under oath that he treated the practice of law as “an honorable profession?” We can’t make this stuff up.


    “Do As We Say, Not As We Do!”

    But without question, the star of this show was prosecutor April McMurrey. The last time that room service was delivered with this level of enthusiasm, Kobe Bryant was indicted:
    Judge Lucero: “My question to you is, [inaudible] all dishonesty warrant the discipline of disbarment?”

    Ms. McMurrey: “[M]y recollection was that, in part, the Hearing Board and the Supreme Court had distinguished between lying to a court or to a client, versus lying to a third person . . . Going back to the case you talked about, when Ms. Maynard made a misrepresentation to the Colorado Supreme Court, my recollection of that matter was that the Hearing Board began with the standard of disbarment, and said that making a misrepresentation to a tribunal is-- a knowing misrepresentation -- is disbarment. 17
    Let this sink in for a minute: an officer of the court who knowingly makes a misrepresentation to a tribunal is asking for disbarment, according to the OARC. And presumably, this applies to every lawyer in the state, as opposed to just Alison Maynard. And if anything, the standard of ethics is even higher with regard to the conduct of the disciplinary counsel, who assumes an even greater responsibility.18 But not unlike the cop who shatters the entire Colorado Vehicle Code in his mad dash to get to the donut shop for a coffee break, from top to bottom, Colorado’s enforcement agencies are infected with the attitude that law is for the little people.

    My own personal experience with state bar officials is illustrative of this point. A pioneer in Internet journalism, I was primarily responsible for what might be described as the first case of “road-kill on the information superhighway: the exposé of Colorado-based radio evangelist Bob Larson. Working closely with celebrated televangelist-buster Ole Anthony and a cast of dozens, our communal efforts resulted in investigative reports airing nationally on NBC, Inside Edition, and numerous local and print outlets. Our Bob Larson Fan Club website won a Rabble Rouser Award from Mother Jones, and attracted hundreds of thousands of visits. The scandal involved adultery, ghost-writing, mail and wire fraud, and staged ‘exorcisms’; after all was said and done, Larson lost his radio ministry, and was relegated to exorcising demons of heartburn out of suburban housewives in Deer Tick, Alberta. (He is now the head of a cult in Arizona.)

    But the mail-order minister had money --the kind of money that buys influence in this town-- and an unquenchable thirst for revenge. As such, I was targeted for professional destruction, in much the same way Alison Maynard was.

    The OARC’s modus operandi is stolen from the Soviet Union19: Dissidents are deliberately diagnosed as mentally ill, even when they are as sane as the Pope. To make matters worse, they are forced to pay for their own “diagnosis” -- conducted by a corrupt stable of psychiatrists who exchange patently dishonest, Board-friendly opinions for a steady stream of referral business at exorbitant rates. It is, in essence, the plot of Kangaroo Jack: the “bag- men” are expected to pay for their own execution. As this pattern is established not only in the matter of Alison Maynard, but of Mark Brennan and myself, I am reluctantly compelled to become part of the story.

    With that foundation laid, let us turn to Colo. R. Civ. P. 201.10(4), which stated in pertinent part:

    On motion of the disciplinary counsel, and upon a showing of good cause, the hearing panel may require the applicant to submit to a mental status examination conducted by a psychiatrist or psychologist, or to submit to a substance abuse evaluation conducted by a qualified professional of the disciplinary counsel's choosing, the cost of which shall be borne by the applicant.20

    Like most statutes, Rule 201.10(4) was written carefully, and with an eye toward compliance with federal law. Specifically, the federal Americans With Disabilities Act (the ADA) prohibits discrimination against qualified individuals (those being treated as though they have a disability, regardless of whether they do or not) and therefore, to require a qualified individual to pay for a mental status examination violates federal law.21

    As the Wyoming Supreme Court reminds us, “half the truth is often a lie in effect.”22 And with that observation in mind, consider this statement -- offered to a tribunal by none other than Deputy Regulation Counsel James Coyle, third-in-command at the OARC.23

    The undersigned requests that the hearing panel require applicant to “submit to a mental status examination conducted by a psychiatrist or a psychologist … of the Disciplinary Counsel’s choosing, the cost of which shall be borne by the applicant.” The psychiatrists [names elided] are all acceptable to the Office of Disciplinary Counsel, and applicant may choose from any of these four psychiatrists.24

    According to prosecutor April McMurrey, speaking on behalf of the OARC, any officer of the Court who knowingly makes a misrepresentation to a tribunal presumptively deserves disbarment (mitigating factors notwithstanding). When he made the above-referenced statement, Coyle was not only an attorney and officer of the Court, but an authorized representative of the very agency charged with ensuring that attorneys were honest. Moreover, Coyle didn’t just create a potential for harm; his actions effected a criminal deprivation of a state bar applicant’s federal rights. 25 On account of his misrepresentation to a tribunal, Coyle fraudulently persuaded it to issue an illegal order requiring an applicant to submit to a psychiatric examination that he would have to pay for (in violation of the federal ADA), further dictating which of the thousands of qualified and duly licensed psychiatrists and psychologists in the state could perform the proposed examination (in violation of the statute itself).

    The only remaining question is whether Coyle’s misrepresentation of his agency’s enabling statute was intentional, and the only plausible answer was that it was. The cost of such an examination runs well into the thousands of dollars, and that would have come right out of his agency’s budget. Moreover, there is no accepted definition of the level of ‘mental fitness’ required for one to become a lawyer, as even an applicant who “has been declared mentally ill or incompetent by a court having jurisdiction” can be admitted to practice, even if that declaration is still in force.26 To even ask a C.P.A. who has been married to the same woman for twenty years to undergo such an examination, solely on the grounds that someone in the Board of Law Examiners did not like his whistle-blowing activities, is therefore risible on its face.

    So here, we have our absurdity: Alison Maynard is being pursued by OARC for presumptively ethical conduct (threatening a civil suit) and pursuing a remedy that she believes in good faith to have substantial authority for27 (attempting to collect attorneys’ fees from Magness’ entities), by an agency managed by a man who is, under its own rules, ethically unfit to be a lawyer.


    A Peculiar Sense Of “Honor”

    It could be described as the defining moment of the trial. Trial work is about preparation, and it is said that the good attorney never asks a question on cross-examination that she doesn’t know the answer to. In a shining moment on the second day, in the cross of Schaefer, Maynard showed a flash of the brilliance that has made her the bane of Denver’s power elite:
    Maynard: Do you see on number three of page two of the subpoena requires you to bring all e-mails created or received, from any person, at any time, concerning Alison Maynard. Do you remember that?

    Witness: I see that.

    Maynard: And you produced instead e-mails you had concerning me between June 26 . . . to the date of the deposition, which was August 19th. … That’s how you interpreted the subpoena, is from the date you were served with the subpoena until the date of the deposition, and those were all the e-mails you produced, wasn’t it?

    Witness: My recollection is, I produced all e-mails from the time I was first contacted by Attorney Regulation Counsel’s office through the date of the deposition. I provided all of them to which you objected at the deposition and again, threatened to sue me and hold me in contempt if I didn’t provide more.
    In that one brief exchange, everything becomes pellucid. As “from any person, at any time” is not subject to an abundance of interpretation, and it defies conception that he would not have had discussions with Rebecca Alexander regarding Maynard before that date, it logically follows that there was something hiding in the bowels in his computer that the veteran attorney knew it would not profit him for Maynard to know. And it had to be something serious --for instance, evidence of a possible criminal conspiracy between him and Alexander involving a sale of his testimony-- for him to so dramatically surrender his law license.

    For this reason, April McMurrey became Maynard’s ‘star witness’ -- or, she would have been, but for Judge Lucero’s inexplicable refusal to let her examine the smoking gun. McMurrey had to almost be in the throes of brain-death to not hear the klaxons on the starship Enterprise, telling her that the warp-core of her prosecution had been breached in that deposition. The fundamental question is, therefore, downright Nixonian: What did April know, and when did she know it?

    “Please the court, I suggest the members be dismissed, so that we can move to an immediate article 39A session. The witness has rights.”28

    This isn’t Hollywood --and April McMurrey is no Lieutenant Kaffee-- but McMurrey would have had to have been phenomenally dull not to find the pork entrails in the Manischewitz. Your star witness is in contempt of court, confessing to conduct prejudicial to the administration of justice which arguably warrants discipline.29 The circumstances of his act are such that they cast a pall over the credibility of your other main witness.

    Nonetheless, McMurrey soldiered on. She even sent Alexander a copy of the complaint against Maynard, candidly admitting that “I usually don’t provide a copy to my witnesses, as I don’t want there to be any suggestion that I tried to influence them.”30 If so, one must wonder as to what that action implies.


    Honor Among Thieves

    In theory, the Rules of Civil Procedure are intended to facilitate settlement and reduce the cost of litigation, by forcing parties to place all their cards on the table prior to trial. In practice, it has had precisely the opposite effect, as pre-trial discovery has become a delicate dance of deliberate deception. Apparently, the “honor” of which Michael Schaefer speaks is accurately described as honor among thieves, as all are expected to participate in this expensive and arduous farce called pre-trial discovery. Another amusing anecdote from personal experience ought to illustrate this nicely:

    I sued mail-order minister Bob Larson for libel in connection with personal accusations he made in response to our exposés. Larson is and was an inveterate sociopath, who lied about everything in his life, but I knew from one of his former romantic interests that he kept a personal diary. While he had no reservations about lying under oath, what kind of man would lie to his diary?

    During discovery, I asked Larson to produce any and all diary entries pertinent to my lawsuit; to my surprise and shock -- I was, after all, a law student, and operating under the facile delusion that our legal system was essentially honest -- his attorney denied the very existence of the diary. Of course, I responded by submitting seven pages from the Larson diary and complaining about his perjury. In addition to asking the Court for sanctions, I asked the OARC to initiate a disciplinary inquiry, having been encouraged to do so by my legal ethics professor, who just happened to be chief disciplinary counsel for the OARC.

    Larson’s diary entries betrayed an extramarital relationship with one of his stunning stable of staffers, including a junket with her and her three kids to the Disney Yacht Club Hotel. When she was mad at him, it was, in his words, the worst day of his life. He kept track of his times for his morning runs and generally, made the kind of remarks you make in personal diaries.31 On its face, it bore the fragrance of perjury and subornation. But that’s not how the game is played in Colorado, as one can only learn the hard way.

    I learned later that my opponent, a veteran trial attorney with more than two decades of experience at bar, had attended an entry-level ‘trial tactics’ seminar taught by the judge in the case (Judge Christopher J. Munch, of Jefferson County), and that he billed his time at that seminar to Larson, asserting on the bill that “this is our judge.” At that moment, all of the judge’s bizarre court decisions suddenly made sense, if you make the very reasonable supposition that an envelope stuffed with Benjamins changed hands in the mens’ room during one of the breaks.

    Of course, the OARC did what it always does with citizen complaints: look the other way. You are told in law school that the only way you can really get in trouble with state disciplinary authorities is to either steal a client’s money, or sleep with her. In Colorado, even that last stricture is now presumptively gone.32

    Judicial corruption is ubiquitous, and has been as long as there have been judges. King Hammurabi adopted a one-strike rule in dealing with corrupt judges.33 Herodotus related the story of a Persian vassal lord who executed a corrupt judge and used his skin to upholster the new judge’s chair; for good measure, the new judge was the executed one’s son.34 It is better to live under the rule of a benign king than to endure a corrupt republic. And while the American judiciary works diligently to hide its myriad scandals from public view, even in the back woods of Arkansas, this kind of chicanery is intolerable to bench and bar.35 But in Colorado, it is standard operating procedure, facilitated by a regulation system designed to look the other way.


    “She Don’t Lie, She Don’t Hide, She Don’t Mind, COCAINE!”

    Judging from her record, Chief Justice Mary Mullarkey of the Colorado Supreme Court is the most cocaine-and pedophile-friendly judge in the Intermountain West. If you are cooking meth in your trailer or have a thing for underage children, the Mullarkey wing of the Court will protect your rights with unbridled zeal.36 She has made the state bench safe for cocaine abusers, taking decisive action against former District Judge Jesse Manzanares for reporting suspicions regarding a colleague’s alleged cocaine abuse to authorities -- replacing the accuser with the accused as the chief judge of that circuit.37 If you’re accused of keeping pornography on a stolen state computer, you can count on her protection, provided of course that you are a fellow Harvard Law grad and a Democrat.38 Whereas Mullarkey displays almost no concern for protecting the public from harm at the hand of potentially dangerous attorneys, 39 her minions protect our judges from scandal with vigor.40 But Her Majesty’s munificence appears only to extend to Democrats; Republican district attorneys such as Carol Chambers and Scott Storey walk around with proverbial targets on their backs.41

    While the skids for political prosecutions at OARC are always well-greased, real people with compelling grievances are politely advised to “pound sand,” in a delicate dance of absurdity that would bring tears to Joseph “Catch-22” Heller’s eyes. On the one hand, the OARC tells ordinary complainants that they won’t touch a grievance unless a court finds that there is a problem . . . but on the other, judges tell them that they should refer their complaints to OARC. Sean Harrington reports, quoting a letter from Assistant Regulation Counsel Matt Samuelson which states:

    The documentation provided in support of this request for investigation demonstrates that many issues in your divorce case have been vigorously contested. In cases of that nature, the judicial officer or officers presiding over the case are in the best position to assess whether the conduct of the parties or the conduct of the lawyers has been improper or in violation of orders entered in the underlying case. We believe the court presiding over your case should determine whether any of the issues you raise here lead to a situation where [attorney Michael Luchetta] or his client have acted improperly. If the court makes a specific finding that [he] acted improperly in any way, you may bring that specific finding to this office for review.42

    But as Harrington reports, and anyone who has complained to OARC already knows, judges are in the habit of passing the buck back to them:

    But alas, the learned and esteemed Jack W. Berryhill, district judge for the First Judicial District, disagreed, when confronted with Samuelson's pronouncement: In an Order he issued today, he decreed:

    This court lacks jurisdiction to entertain attorney misconduct complaints. The Colorado Supreme Court retains exclusive jurisdiction over lawyer misconduct involving attorneys licensed to practice in Colorado . . . If Mr. Harrington wishes to file an attorney misconduct complaint, he must do so through the Office of Attorney Regulation Counsel.

    The problem is, Berryhill also disagrees with himself: In the same case, he issued an Order in February, 2009, in which he decreed, “I presumably have some authority over ... lawyers, by virtue of the Colorado Rules of Professional Conduct applicable to attorneys as officers of the court.”43

    At the end of the day, with the exception of cases involving the theft of client funds, the main determinant of whether a grievance will be pursued by OARC is who the person doing the grieving is. If you are a federal judge with a personal score to settle, you will be placed at the front of the line.44 If you are a partner in a Seventeenth Street law firm with strong political connections, you are likely to get preferential consideration.45 If you’re a federal judge caught in the maw of a prostitution scandal, and have no chance of giving a credible explanation as to where you got the money to bang high-class hookers on a weekly basis, you are safe.46 And if you are the husband of a Colorado supreme court justice, you pretty much have to get caught in bed with a live boy or a dead girl to face sanction. 47

    Even when Colorado’s power elite have to eat one of their own, they are generally inclined to gum them softly. By way of example, prosecutors Terry Gilmore and Jolene Blair, subsequently named to the bench, were only given public censure for withholding exculpatory evidence in the case of Tim Masters, wrongfully convicted of murder in 1999.48 Masters’ life was destroyed as a direct result of their misconduct, and the well-connected Gilmore and Blair only got slaps on the wrist, whereas Mark Brennan was suspended for a year for wounding Judge Robert Blackburn’s pride. 49 And Alison Maynard faces disbarment for unpardonable sin of depriving Gary Magness of his road.

    As Maynard testified, KnowYourCourts.com proved useful in her selective prosecution defense, in submitting admissions by employees of the OARC:

    "You should first address your concerns with the court in the underlying proceeding. If the court determines that the attorney has engaged in any misconduct, as you have alleged, then please feel free to resubmit the matter to this office." [James Coyle]

    “Rule 4.5 does not preclude attorneys from threatening to bring a civil action” [Louise Culbertson-Smith]

    “As for any claims of a civil nature such as fraud, slander, civil conspiracy, or violation of constitutional rights, you may pursue those issues in an appropriate civil court forum. This office does not have jurisdiction to review or determine civil claims.” [Culbertson- Smith]50

    Apparently sensing a problem, Judge Lucero sprung into action, cross-examining Maynard on his own motion, attempting to attribute these admissions to “prosecutorial discretion.” Of course, the fact that the very agency charged with keeping attorneys honest was lying to the public somehow managed to evade his notice. When Judge Lucero came to the defense of his agency, Maynard slapped him around like an over-aggressive date. As he struggled mightily to recover, he hoisted it on its own petard:

    Maynard: But what we see here is a statement of policy for the office . . . that fraud, for instance, they won’t take that up unless a civil court has made a determination. They have abrogated that policy in my case.

    Lucero: Let me-- let me ask you something else. We’re not going to be able to look behind each of these letters and determine what-- whether or not the decision was right or not, right? I, well, let me just ask it this way, and in deciding whether or not you would prosecute a case -- take it to court -- subject someone to criminal sanction, which could include incarceration, one of the things that you would look at, would you not, is the credibility of the people involved, and you’d have to make that determination. You’d be expected to make that determination, wouldn’t you?

    [When you’re in a hole, Judge Lucero, stop digging! Your agency’s star witness has admitted under oath that he defied a subpoena, and the prosecutor knew it. Your prosecutor was expected to make that determination, and she failed. Moreover, the agency prosecuted her for acts that it refuses to prosecute as a matter of policy.]

    Maynard: Well, your Honor, if my office had a policy that certain things must be decided by a civil court first, before we would proceed, there isn’t discretion.” 51

    Distilled to essentials, Alison Maynard is being prosecuted for what the OARC has warranted time and again that they don’t even investigate, as a matter of office policy. And even though the OARC only investigates fifty claims a year, she has been the subject of eight separate investigations. While they steadfastly refused to investigate Mxxxxxxx Wxxxxx52 for having Sean Harrington involuntarily confined to a mental institution to gain advantage in a divorce case, or James Rollin Miller for apparently suborning perjury in a civil case, they pursued Maynard with all the tenacity of a pack of velociraptors. And the balance of her testimony gives us a first approximation as to why:

    Maynard: Three million acres of [state] trust land have been sold at bargain rates to developers. What I’ve seen is the pattern of the transfer of public wealth and also taxpayer funds into the pockets of a select group of elites. What we’re not seeing is enforcement. 53

    Maynard proffered a long list of names -- a list wielding an abundance of power in this town. Even if one of them got mad at her, they could make her life miserable. And as for the what, the former deputy district attorney and Green Party candidate for state Attorney General alleges that:

    The rackets can be characterized as "asset-stripping enabled by judges." Persons or entities like nonprofit corporations who own property are being targeted by developers and other unscrupulous interests, and hauled into court for trumped-up reasons. The judge then orders the wrongful transfer of the property from the true owner to the developer. I have litigated against this scenario multiple times in this state and criticized the judges. I believe this is the reason I have been targeted by OARC.54

    If what she claims is true -- it is a story far beyond our ability to research -- it would go a long way toward explaining what seems to be the OARC’s maniacal fixation on her.


    “Abandon All Hope, Ye Who Enter Here.”

    Attorney licensure and regulation is a land due process has forsaken. It is a kingdom bereft of even the most perfunctory standards, where well-connected felons and drug-dealers are embraced with open arms, and political opponents need not apply.55 Sure, the money can be decent, but you enter at the price of your soul: Many courts hold that an attorney’s voluntary entrance to the bar acts as a voluntary waiver of the right to criticize the judiciary.56 And, should you venture through these gates of earthly Hell, you exist in a state of permanent terror, for in Colorado, your license can be taken away from you for barely more than the act of breathing. Colorado Supreme Court Justice Nathan Coats concedes:

    In large part because the ethical standards governing the profession are necessarily vague (at times even approaching the aspirational), I believe excessive deference by this court to any subordinate body we create implicates fundamental, due process concerns. Disbarment or suspension from the practice of law amounts to far more than exclusion from a voluntary group or association. It deprives a lawyer of the means to earn a living, and perhaps even of participating in public life, in a way that unquestionably affects substantial property rights and expectations. Although ostensibly not intended as punishment, this official deprivation of property necessarily entitles attorneys to reasonable notice of the standards to which they must conform their conduct and reasonable consistency in the application of those standards.57

    In the case of Susan Haines, Justice Coats confessed that he couldn’t even figure out what she had done that was sanctionable, to say nothing of what the appropriate sanction should have been for the alleged offense.58 And if he doesn’t know, it is tough to assert with a straight face that the attorney in question was on reasonable notice that she was violating the rules of professional conduct.

    But this is the state of affairs in Colorado’s shipwreck of a disciplinary system, where ‘facts’ materialize from thin air, the Mullarkey Court scours its underlings’ decisions for grounds justifying predetermined conclusions, and judicial review is noticeable only by its absence.59

    The egregious due process violations begin even before your case is slated for trial. The Presiding Disciplinary Judge and OARC share the same office space -- OARC employees appear to have the run of the place -- which makes ex parte communication inevitable and the appearance of impropriety, overwhelming. Suspended attorney Mark Brennan related a story where he spotted OARC's Jim Coyle talking privately with a clerk of the judge's chambers in the hallway during his hearing. “Brennan confronted him, ‘Why, Mr. Coyle! You're having an ex parte communication with the judge's chambers. How do you explain this’ Coyle contended, ‘We were just going over a procedural matter’.”60 Sure, Jim.

    If the Brennan and Maynard cases are representative, the one certainty an attorney in the dock will face is that he or she will lose all but the most routine pre- trial motions, whereas the OARC will get everything they wanted and more. As we have seen, on numerous occasions, the former Assistant U.S. Attorney crossed the line between judge and prosecutor in the Maynard trial. On four occasions in the Brennan case, Judge Lucero summarily disposed of pre-trial motions with a handwritten notation on the motion that a written order (presumably, explaining the decisions in question) would follow, but none ever did; Brennan was never even permitted to depose his main accuser, a federal judge.61 And despite the fact that she faced six witnesses, Alison Maynard was only allowed to conduct four depositions.62

    The next thing the attorney can expect is that the OARC will attempt to cast aspersions upon the attorney’s mental state. It is a time-worn Soviet tactic: paint dissenters as crazy, and the public will shun them. The attorney who sees through this corrupt tactic will refuse, resulting in his being removed from the bar, in any event. Mark Brennan was just one conscientious objector. Alan Prendergast reports:

    When a state disciplinary judge suspended Mark Brennan's license to practice law for a year, finding that he intentionally engaged in "obstreperous behavior" in winning a $1.2 million federal verdict against the City of Denver, one requirement for reinstatement was that Brennan submit to an independent medical evaluation.

    The combative Brennan thinks that condition is illegal. And he's even more incensed that disciplinary judge William Lucero is asking him to see a psychiatrist -- and share the results of that exam with opposing counsel -- before his motion for a stay of execution will be considered.

    "To be plain, Sir," Brennan wrote in a recent letter to Lucero, "Hell will most assuredly freeze over before I see my most private medical and personal information and history disseminated to my worst enemies on the face of the Earth, who have to date demonstrated only the most complete disregard for the truth and the law imaginable."63

    For the record, I was another.


    Control the Bar, and You Control the Town

    It is widely known that many state court judges and some lower court judges play favorites among litigants and lawyers. Roy Cohn once famously quipped, "I don’t care if my opponent knows the law, as long as I know the judge." . . . I have seen it with my own eyes in the courts of Boston, New York, and elsewhere.64

    Judicial corruption is ubiquitous, from Albania to Zaire; to deny the facts is illogical. And, as notable human rights activist Geoffrey Robertson observes, it is easy to spot if you know what to look for:

    Bribes are facilitated by lawyers, court clerks and police, who take their cut on behalf of clients who do not complain when they win their case, are acquitted or released on bail as a result. Judges who are political lickspittles, ruling in favour of the state, police or army because they wish for favours, promotion or post-retirement appointments, can usually dress up their wrong decisions with bogus legal arguments or manipulate the facts to support their findings.65

    Both at the state and federal level, Colorado judges routinely fabricate facts and take indecent liberties with the law, because they know they can. Denver has been without a functional newspaper for the better part of a decade; as Post editor Greg Moore admits: “You seem to know a lot about the courts and that's an area we have largely abandoned and we shouldn't.”66 Local television stations only seem to get excited if judges are literally caught with their pants down (as in the Nottingham scandal) and often, reporters have attention spans shorter than their stories. The only hope for justice lies with the state bar -- which translates into no hope. Those who have the capacity to know no longer have the capacity to speak.

    Chief Justice Mullarkey’s reign of terror has had the desired effect of pacifying the Colorado bar, as none dare oppose her. As a result, Colorado’s bar consists almost exclusively of geldings. Prominent Republican lawyer and maven of morality Dan Caplis hosts a local radio show on one of our extremely fascist-wing Clear Channel outlets, and as to be expected, he went ballistic on Eliot Spitzer. But when a caller confronted him regarding Judge Nottingham during the Denver Players scandal,67 his spine collapsed like magic:

    First and foremost, I'm a trial lawyer, and my obligation is to my clients. And that's why there are going to be times when a judge -- a local judge -- deserves criticism and I won't offer it on-air, because I don't want to compromise my clients' interests. 68

    His radio partner, former Denver district attorney, obsequious weasel, and nominal Democrat Craig Silverman, agreed:

    [B]ut we're also attorneys, and we don't know when a case bars, or one of our partners is going to be in front of Judge Nottingham, so if you perceive a little hesitancy on my part, that it accurate. ... For me personally, it is sort of dicey for me to be talking about Judge Nottingham -- it's a delicate situation for Denver lawyers. 69

    Realistically, Denver Players is the one story that will never be told. Federal judges make less than two hundred large, and their state counterparts, about a hundred. You can’t really afford a $1,000/night hooker on a state judge’s salary. So, why were judges --in the plural-- mentioned in the news reports? And if you ‘gave’ one of those girls to a judge for the night, wouldn’t he be eternally grateful? Those who are in the know, know enough to be silent.

    Judicial systems debased by bribery undermine confidence in governance by facilitating corruption across all sectors of government, starting at the helm of power. In so doing they send a blunt message to the people: in this country corruption is tolerated. 70

    As Counsellor Robertson notes, “It is no coincidence that corruption thrives most in countries where judges are corrupt.”71 Uhh, welcome to the Third World, Colorado.

    _______________________________
    1 The Court entered a sequestration order, initiated by Ms. Maynard. While we were not technically bound by the Order itself, we chose to abide by its spirit, inasmuch as this sort of media coverage is at the discretion of the judge, and we wanted to help ensure that our presence did not infringe upon the right of the accused to what is supposed to pass for a fair trial.
    2 Colo. R. Civ. P. 251.16(a) and 251.17(a)(1).
    3 April M. McMurrey, Complainant’s Obj. to Sean Harrington’s and Suzanne Shell’s Requests for Expanded Media Coverage, People v. Maynard, No. 09PDJ028 (Colo. filed Mar. 31, 2010).
    4 Gabriel J. Adams, Gary Magness: Not Your Typical "Rich Guy," e-zine, http://ezinearticles.com/?Gary-Magness:-Not-Your-Typical-Rich-Guy&id=427460.
    5 Neighbors’ Property Dispute Bulldozes Its Way Into Court, Rocky Mountain News (AP), Nov. 9, 1997, at 46-A, InfoWeb link
    6 Magness’ entities are presumed to be controlled by him for purposes of this admitted simplification.
    7 Of course, he didn’t do it himself. Billionaires don’t work, they play.
    8 Magness Loses Long Court Fight Over Access Road, Denver Business Journal, Jul. 5, 2007, http://denver.bizjournals.com/denver/stories/2007/07/02/daily30.html
    9 See e.g., Transcript, Shields & Gigot, PBS (May 30, 1997), at http://www.pbs.org/ newshour/shields&gigot/may97/s&g_5-30.html (reference to the famous quote).
    10 Testimony of Rebecca Alexander, People v. Maynard, supra (taken Apr. 7, 2010; copy of video on file).
    11 Profile at http://www.bakerlaw.com/rebeccacalexander/
    12 “You can say I don't remember. You can say I don't recall.” Richard M. Nixon, WATERGATE: The Most Critical Nixon Conversations, Time, May 13, 1974, at http: //www.time.com/time/magazine/article/0,9171,908615-8,00.html.
    13 See, Testimony of Rebecca Alexander, People v. Maynard, supra. (10:55 A.M., Apr. 7, 2010) (she stated that she did not know, asserting that it would be the Magness billing partner’s call. There is one and only one ethical answer to that question, and she did not give it.)
    14 The author also saw him in the outside lobby, with the same stack of documents in his hand.
    15 Testimony of Michael Schaefer, People v. Maynard, supra (~2:20 P.M., Apr. 7, 2010).
    16 Id. (~2:20 P.M., Apr. 7, 2010) (other speakers’ comments elided for brevity).
    17 OARC Closing Argument, People v. Maynard, supra (~4:03 P.M., Apr. 8, 2010).
    18 See People v. Brown, 726 P.2d 638 (Colo. 1986) (being district attorney is an extreme aggravating factor).
    19 See generally, e.g., Richard J. Bonnie, Political Abuse of Psychiatry in the Soviet Union and in China: Complexities and Controversies, J Am Acad Psychiatry Law 30:136 (2002) (explaining the Soviet Way).
    20 Colo. R. Civ. P. 201.10(4) (Bradford 1994; emphasis added) (“disciplinary counsel” is now called “attorney regulation counsel” but substantively, the current statute is identical).
    21 In 1990, Congress enacted the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”), establishing additional civil rights protections for persons with disabilities. As of Jan. 26, 1992, the effective date of the Act, all public entities, including state licensing boards, see e.g., Ware v. Wyoming Bd. of Law Examiners, 973 F.Supp. 1139 (D.Wyo. 1997); Clark v. Virginia Bd. of Law Examiners, 880 F.Supp. 430, 441 (E.D.Va. 1995), are legally required to comply with its provisions. § 12132 (1999), defining such an individual as one “who meets the essential eligibility requirements . . . for the receipt of services or participation in programs” provided by a public entity, Id. § 12131; an “individual with a disability” includes those who are not legally disabled but nonetheless, are being “treated by a covered [public] entity as having a substantially limiting impairment.” 29 C.F.R. § 1630.2(1); Richards v. City of Topeka, 173 F.3d 1247 (10th Cir. 1999). The ADA’s focus is thus not the impairment itself, but the alleged impairment’s “effect upon the attitudes of others.” MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1444 (10th Cir. 1996). Section 12132 covers not only “exclusion from participation in or [denial of] benefits of the services, programs, or activities of a public entity, but also being “subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (1999). A public entity discriminates against bar applicants regarded as having disabilities if it imposes additional burdens upon them, Clark, supra., and the imposition of a substantial surcharge upon disabled persons constitutes discrimination forbidden under the ADA. See, Dare v. California, 191 F.3d 1167, 1171 (9th Cir. 1999) ($6 charge for handicapped placard is discrimination; collecting pre-1999 cases). Similarly, a public entity may not “impose or apply eligibility criteria that screen out . . . any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.” 28 C.F.R.§ 35.130(b)(6). And while it may seem intuitive that a mental fitness requirement could and should be imposed on attorneys, Rule 201.10(6) permits an applicant who has been declared mentally incompetent to even handle his own checkbook to practice law, at the apparently unfettered discretion of the Colorado Supreme Court. Given the vagueness of the standard in place, in light of the profound successes of such celebrated barristers as Abraham Lincoln who are thought to have suffered from mental illness, it is difficult to suggest that those criteria employed by Colorado are necessary.
    22 Twing v. Schott, 338 P.2d 839, 841 (Wyo. 1959).
    23 See http://www.coloradosupremecourt.com/Regulation/Staff.htm. As Mr. Coyle attended the hearing on a regular basis, it is reasonable to presume that he was McMurrey’s direct supervisor.
    24 James C. Coyle, Motion for Medical Examination of Applicant, (before a hearing panel of the Colorado Board of Law Examiners), Dec. 15, 1998 at 3.
    25 See 18 U.S.C. §§ 241-42.
    26 Colo. R. Civ. P. 201(5)(d) and (c).
    27 See e.g., Blanchard v. Bergeron, 489 U.S. 87 (1989) (an attorney's fee allowed under § 1988 is not limited to the amount provided in the plaintiff's contingent fee arrangement with his counsel); Hensley v. Eckerhart, 461 U.S. 424, 434, (1983); Spensieri v. Farmers Alliance Mut. Ins. Co., 804 P.2d 268 (Colo. App. 1990).
    28 Lt. Daniel Kaffee, A Few Good Men (Columbia, 1992) (character played by Tom Cruise).
    29 See e.g., People v. Radinsky, 490 P.2d 951 (Colo. 1971); People v. Haase, 781 P.2d 80 (Colo. 1989) (obstruction of justice).
    30 April McMurrey, e-mail (to Rebecca Alexander), Jul. 1, 2009 (back-copy in response from Alexander; copy on file).
    31 A “diary” is defined as “[a] daily record esp. a personal record of events, experiences, and observations.” Amer. Heritage Dictionary 392 (2nd Coll. ed. 1985). Diaries are like reporters’ notes, and constitute a valuable source of “state of mind” evidence, of critical import in a defamation case such as this one. Diaries are routinely discoverable where relevant. See e.g., Vermont v. Shaw, 542 A.2d 1106 (Vt. 1987) (unprotected by rape shield law).
    32 See http://www.knowyourcourts.com/CARC/CARC_grievances.htm#Thorup0.
    33 Codex Hammurabi § 5, available at http://www.wsu.edu/~dee/MESO/CODE.HTM.
    34 [The judge Sisamnes], being of the number of the royal judges, had taken money to give an unrighteous sentence. Therefore [King] Cambyses slew and flayed Sisamnes, and cutting his skin into strips, stretched them across the seat of the throne whereon he had been wont to sit when he heard causes. Having done so Cambyses appointed the son of Sisamnes to be judge in his father’s [courtroom], and bade him to never forget in what way his seat was cushioned. Herodotus, Histories, Bk. V, § 26 (tr. George Rawlinson, et al.) (D. Appleton & Co. 1889), Vol. III at 192.
    35 President Clinton was suspended from the practice of law in Arkansas for five years, see, Todd v. Ligon, No. 03-415, 2004.AR.0000220 (Ark. 2004) (Versuslaw), and permanently disbarred by the United States Supreme Court, see, Order List, 122 S.Ct. 24 (2001), for similar conduct during the Paula Jones sexual harassment suit. See generally, Ann Coulter, “Disbar Clinton!,” National Review, Aug. 30, 2000, available at http://www.nationalreview.com/comment/commentprint083000c.html (visited May 7, 2004).
    36 See e.g., Tattered Cover v. City of Thornton, 44 P.3d 1044 (Colo. 2002) (meth dealer); Martin v. People, 27 P.3d 846 (Colo. 2001) (sex offender).
    37 Karen Abbott, “FBI Settles Judge’s Case,” Rocky Mountain News, Apr. 27, 2004. It is worth noting that the only Colorado judge who has been ‘whacked’ (quite obviously, in a figurative sense) by our judicial Cosa Nostra in the past three years was a whistle-blower. Given that sterling object lesson, it is fairly safe to say that the next judge will think twice before turning state’s evidence.
    38 The Manzanares Muddle: Explanation By Court Brass Leaves Much To Be Desired, Rocky Mountain News, Mar. 7, 2007 (summary of the stolen laptop and pornography scandal which ended in the suicide of former judge, Denver City Attorney, and Harvard Law School graduate Larry Manzanares, and the Colorado Supreme Court’s interference in the course of what would have been a prosecution for felony theft). Mullarkey is also a graduate of Harvard Law School. Mary J. Mullarkey, Two Harvard Women: 1965 To Today, 27 Harv. Womens’ L.J. 367 (2004); school ties are the among the oldest conduits of corruption.
    39 Attorney, convicted felon, and known cocaine abuser Cynthia Ciancio faces a high likelihood of relapse, as do all who go down that path. See e.g., Richard B. Marx, “Impaired Attorneys and the Disciplinary System,” Florida Bar Journal, Dec. 1999, reprinted at http://www.fla-lap.org/journal/marx.html (“a practicing attorney who is impaired can be substantial danger to the public and the judicial system as a whole”). As cocaine addicts “have a very high relapse rate,” “Epilepsy Drug May Block Cocaine Addiction,” CNN, Aug. 5, 1998, at http://www.cnn.com/HEALTH/9808/- 05/anti.addiction.drug, the odds of Ms. Ciancio’s posing a danger to the public are high.
    40 Tony Kovaleski, “Judges Admit To Signing Inaccurate Affidavits,” TheDenverChannel.com, story aired Nov. 13, 2002 (transcript on file).
    41 See, Carlos Illescas, “DA Chambers Issued Censure by State Panel,” Denver Post, Dec. 27, 2006; George Merritt, Jeffco DA Faces Conduct Probe, Denver Post, By stark contrast, Chief Justice Mullarkey used the powers of her office in an attempt to shelter fellow Democrat and Harvard Law School graduate Larry Manzanares from criminal prosecution.
    42 Matthew A. Samuelson, Letter (to Blake Leverett), Jan. 12, 2010, at 1-2, reprinted at http://www.knowyourcourts.com/CARC/correspondence/2010-01-12_OARCresponse.pdf. The author is under no legal obligation to redact the accused attorney’s name, but reminds the reader that these are mere allegations.
    43 News and Comment, KnowYourCourts.com, Apr. 7, 2010, at http://www.knowyourcourts.com/News/news.htm (emphasis added).
    44 In re Mark E. Brennan, No. 08PDJ052 (Oct. 28, 2009), see, Carolyn Elefant, A Travesty of Justice in Colorado: Lawyer Suspended for A Year and A Day for WINNING His Client's Case, MyShingle.com, Jan. 12, 2010; Felisa Cardona, Colorado Supreme Court Panel Suspends Attorney For Court Outbursts, Denver Post, Oct. 29, 2009.
    45 See, In re Maynard, supra (Ms. Alexander was the complainant).
    46 Based on published reports over a long period and citing multiple witnesses, Judge Naughty was spending about $60,000 a year on courtesans (the main difference between a courtesan and a garden-variety whore is $1,000 a night) and, judging from public financial disclosure reports, reprinted at http://www.judicialwatch.org/judge/nottinghamedward- w, he had neither the outside income nor accumulated savings to pay for his prodigious sexploits out of his own resources. See generally, http://www.knowyourcourts.com/Nottingham/Nottingham.htm (collecting/archiving articles).
    47 Significant publicly-available evidence suggests that former local U.S. Attorney Troy Eid failed to disclose the lobbying activity performed before Interior Secretary Gale Norton for convicted felon Jack Abramoff’s infamous client, the Mashpee Tribe, Sarah Kershaw, Drug Traffickers Find Haven in Shadows of Indian Country, N.Y. Times, Feb. 19, 2006; Did CO's USA Hide His Abramoff-Related Lobbying?, The Next Hurrah (Blog), May 1, 2007, http://thenexthurrah.typepad.com/the_next_hurrah/2007/05/did_cos_usa_hid.html, and that he had his official DoJ biography massaged to avoid any obvious links to Abramoff. Id. While the documents themselves have vanished into the ether, the author retains copies. Eid is the husband of Colorado Supreme Court Justice Allison Eid.
    48 Miles Moffeit, Discipline For Masters' Prosecutors, Denver Post, Sept. 9, 2008.
    49 Eliott C. McLaughlin, Man Says Bogus Conviction Leaves Him Without Wife, Job, CNN, Feb. 25, 2009; Elefant, Travesty, supra.
    50 In re Maynard, supra (11:45 A.M., Apr. 8, 2010).
    51 Id. at 11:45-11:50 A.M (emphasis added).
    52 Name has been redacted pursuant to stipulated agreement.
    53 Id. at 11:40 A.M.
    54 Alison Maynard, e-mail (to author), Apr. 11, 2010 (copy on file).
    55 Cf., Steve Garnaas, “Police Blast Adams DA Felon Hired As Prosecutor,” Denver Post, July 15, 1997, at B1. (convicted felon and cocaine dealer Cynthia Ciancio is the daughter of Democratic activist and judge Gene Ciancio); In re Application of Leonard Alford Thomas, No. LX 99-23 (Colo. Nov. 9, 2000) (Republican candidate for state House of Representatives, denied a license within a week of his loss).
    56 E.g., In re Westfall, 808 S.W.2d 829, 834 (Mo. 1991); In re Raggio, 487 P.2d 499, 500 (Nev. 1971); but see, e.g., In re Hinds, 449 A.2d 483, 489 (N.J. 1982) (lawyer has full array of First Amendment protections; minority view).
    57 In re Susan G. Haines, 177 P.3d 1239, 1255-56 (Colo. 2008)
    58 Id. at 1256.
    59 See id. at 1254 (Coats takes his colleagues to task for their “slavish[] defer[ence]” to the Hearing Board's factual conclusions, “even though they were clearly inferred from erroneous premises,” and its desperate attempt to search the record “for new and different support for the board's discredited findings.”).
    60 http://knowyourcourts.com/CARC/Brennan/08PDJ052.htm.
    61 Id.
    62 Author interview with Ms. Maynard, Apr. 8, 2010.
    63 Alan Prendergast, Defiant Attorney Awaits Cold Day in Hell For Psych Exam, Westword Blog, Dec. 9, 2009, at http://blogs.westword.com/latestword/2009/12/defiant_attorney_awaits_cold_d.php.
    64 Alan Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 116 (Oxford U. Press, 2001).
    65 Geoffrey Robertson, Q.C., The Media and Judicial Corruption, in Transparency Int’l., The 2007 Global Corruption Report,109 (Cambridge U. Press 2007) (emphasis added).
    66 Greg Moore, E-mail (to “Randy King”), Mar. 4, 2009 (copy on file).
    67 This is a representative sample of what a federal judge might have gotten for about $1,000 a night, plus a healthy tip: http://s248.photobucket.com/albums/gg166/bouldergeist/?action=view¤t=daphne.jpg.
    68 Caplis and Silverman, KHOW, March, 2008. Caplis has his own vulnerabilities, apparently having filed a lawsuit against activist Greg Spagnuolo simply for the purpose of harassing him.
    69 Id.
    70 Transparency Int’l, Judiciary Advocacy in the TI Global Movement (website), http://www.transparency.org/global_priorities/other_thematic_issues/judiciary (visited Oct. 21, 2009; PDF copy on file; emphasis added). 70 Geoffrey Robertson, Q.C., The Media and Judicial Corruption, in The 2007 Global Corruption Report, Transparency International 108-09 (Cambridge U. Press 2007) (emphasis added).

    Apr. 7, 2010 - KnowYourCOurts.com exclusive - Your attorney regulation system: Working hard to protect Coloradoans; Your courts; the last bulwark against the erosion of your rights!

    Update: Rule 59 Motion and commentary added; Wolf and lamb parable added
    So, last week, I filed an attorney misconduct complaint regarding Mxxxxxxx "turn-the-other-cheek" Wxxxxx to the district court in the case of Marriage of Harrington. 1 Why? (It's not because I have a lot of free time on my hands).2 Because the Office of Attorney Regulation Counsel has, for years, turned away complainants (in violation of Rule 251.9) for failing to have findings from a civil or criminal court as a condition precedent to commencing an investigation. See Dec. 31, 2007 entry (here) for a dozen examples. And see the recent memorandum from Ass't Regulation Counsel Matt Samuelson, stating:

    The documentation provided in support of this request for investigation demonstrates that many issues in your divorce case have been vigorously contested. In cases of that nature, the judicial officer or officers presiding over the case are in the best position to assess whether the conduct of the parties or the conduct of the lawyers has been improper or in violation of orders entered in the underlying case. We believe the court presiding over your case should determine whether any of the issues you raise here lead to a situation where [respondent-attorney] or his client have acted improperly. If the court makes a specific finding that [respondent-attorney] acted improperly in any way, you may bring that specific finding to this office for review.

    But alas, the learned and esteemed Jack W. Berryhill, district judge for the First Judicial District, disagreed, when confronted with Samuelson's pronouncement: In an Order he issued today, he decreed:

    This court lacks jurisdiction to entertain attorney misconduct complaints. The Colorado Supreme Court retains exclusive jurisdiction over lawyer misconduct involving attorneys licensed to practice in Colorado . . . If Mr. Harrington wishes to file an attorney misconduct complaint, he must do so through the Office of Attorney Regulation Counsel.

    The problem is, Berryhill also disagrees with himself: In the same case, he issued an Order in February, 2009, in which he decreed, “I presumably have some authority over . . . lawyers, by virtue of the Colorado Rules of Professional Conduct applicable to attorneys as officers of the court”3

    The truth is, as this example well illustrates, this court has been stepping all over itself for years to rule against me for the sake of ruling against me, just as the OARC has been stepping all over itself to silence me for the sake of silencing me. And notice how this court established new precedent in Colorado by "entertaining" the dishonest attorney's request to fine me with $6,220 for my temerity to complain about her dishonesty and misconduct.4

    Indeed, the foregoing is a perfect example of the capricious, callous disregard for the Rule of Law, for which this Web site was established to call attention to. This is the kind of lunacy and chicanery that average, hard-working Coloradoans can expect when they follow the procedures prescribed by law.

    Of course, today, I filed a Rule 59 Motion for Reconsideration, making the same arguments in this article. So, how do you suppose the judge will find a way to deny it (as he certainly will)? He will either not rule on it and let it become "deemed denied" under Rule 59(j), or he'll do what these judges almost always do when they're wrong and the law requires them to rule a certain way, but they refuse to --he will get out his black ink-stamp and mark it "DENIED" without comment.

    Which outcome, by the way, reminds me of the following Aesop parable:

    Wolf, meeting with a Lamb astray from the fold, resolved not to lay violent hands on him, but to find some plea to justify to the Lamb the Wolf's right to eat him.

    He thus addressed him: "Sirrah, last year you grossly insulted me." "Indeed," bleated the Lamb in a mournful tone of voice, "I was not then born."

    Then said the Wolf, "You feed in my pasture." "No, good sir," replied the Lamb, "I have not yet tasted grass."

    Again said the Wolf, "You drink of my well." "No," exclaimed the Lamb, "I never yet drank water, for as yet my mother's milk is both food and drink to me."

    Upon which the Wolf seized him and ate him up, saying, "Well! I won't remain supperless, even though you refute every one of my imputations."

    The tyrant will always find a pretext for his tyranny.




    _____________________________________________
    1 Name has been redacted pursuant to stipulated agreement.
    2 For example, this afternoon, I will be guest-lecturing in a Computer & Internet Law class at Hamline Law School.
    3 This also happens to be one of the few statements in the 12-page Order that was consistent with law. See Marriage of Redmond, 131 P.3d 1167 (Colo. App. 2005)). And see Anderson v. Kenelly, 37 Colo.App. 217, 218, 547 P.2d 260, 261 (1975) (noting a trial court's general supervisory power over attorneys as officers of the court); In re Court Facilities for the Routt County Combined Court, 107 P.3d 981, 984 (Colo.App. 2004) (“[C]ourts necessarily possess certain inherent powers, which . . . consist of all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective”).
    4 All of this is payback, because I'm a non-lawyer, who has been a thorn in their side for years, and who has embarrassed this particular court's judges by exposing their "intellectual dishonesty" (as the foregoing example well illustrates).

    Apr. 6, 2010 - KnowYourCOurts.com exclusive - KnowYourCOurts.com covers the OARC v. Maynard attorney disciplinary trial by video-camera.

    Yesterday, as reported by Colorado Law Week, the Presiding Disciplinary Judge granted KnowYourCourts' Request for Expanded Media Coverage over the objection of the Office of Attorney Regulation Counsel, rejecting OARC's arguments that KnowYourCourts.com is not a newsgatherer and that my purpose for seeking expanded coverage was to advance some "personal agenda" arising from the fact that I was a party to a divorce case in Colorado initiated in 1999.1 The pleadings are here

    Don Knox, Law Week's Editor-in-Chief, graciously provided KnowYourCourts.com with a video-camera with which to record the proceedings.2

    _____________________________
    1 Although Law Week has characterized it as a "victory" for bloggers, I am more circumspect: The OARC's objection was so lame and specious, that it may be deserving of sanctions on its face as groundless, frivolous, and vexatious.
    2 Under the original pooling arrangements, Suzanne Shell was to provide the video-taping, but her request for expanded coverage was denied. Although I am a still-camera photographer and also have sound-mixing and studio engineering experience, I do not own any video-camera equipment.

    Apr. 5, 2010 - KnowYourCOurts.com exclusive - Colorado's OARC modi operandi: Regulation Counsel's employment records are a mystery; ass't regulation counsel caught lying about visits to KnowYourCourts.com Web site; rumors abound about proceedings transcripts being altered; OARC objects to recording by independent media; and now, materially altering e-mail evidence?

    Although the truth may be in the eye of the beholder and KnowYourCourts.com holds no license on truth, a number of transactions chronicled on this site are troubling even to one not schooled in the law:
    • I caught OARC lying about their visits to this site (read about it in this embarrassing Westword article here).


    • Recently, a prominent district attorney publicly alleged, "the transcript of [the disciplinary] hearing appears to have been altered."


    • Recently, I reported that certain seeming discrepancies in Regulation Counsel John S. Gleason's curriculum vitae have given rise to speculation that he may have falsified his credentials, and that in response to an Open Records Request, OARC claims to have not employment application records for Gleason.


    • And, just last week, OARC tried [unsuccessfully] to prevent me from providing media coverage of the upcoming trial of Alison "Sunny" Maynard, because I was a party to a divorce case initiated in 1999, and I purportedly have a "personal agenda."
    Today, I discovered what appears to me to be a ham-fisted attempt to alter an e-mail that OARC submitted into evidence.

    In the Maynard case, OARC submitted a "Motion for security during April 6-8, 2010 hearing." Attached to that Motion was a putative e-mail message from Alison "Sunny" Maynard to assistant regulation counsel April McMurrey,1 in which Maynard allegedly states nothing more than, "Well, the hearing panel will hear about the lawyer- impersonator who runs your office. So have some law enforcement types." OARC argued that Maynard was requesting enhanced courthouse security.

    But, Maynard forwarded me the actual e-mail message she sent. It states, as follows:

    So, I see these various standards you have included, both of which relate to DISBARMENT, nothing less, and neither of which have anything to do with the bogus charges you have preferred against me.

    Are you seeking disbarment? This is the first I have heard of it. Is there any limit to the sneaky, unethical, harassing things you will do?

    Well, the hearing panel will hear about the lawyer-impersonator who runs your office. So have some law enforcement types.

    Certainly, none of us is privy to the context of this communication between Maynard and McMurrey. But Maynard told KnowYourCourts.com that she was referring to Gleason being a "lawyer- impersonator," because she believes Gleason has falsified his credentials not unlike Howard Kieffer and Maynard was merely suggesting that she would raise the issue of Gleason's credentials at her hearing, and that the law should be enforced against Gleason as it has been against Kieffer, who is now serving time in federal prison.

    Maynard's explanation seems plausible, when you read the entire actual e-mail and recognize that there is history, context, and an established course-of-dealing between Maynard and her tormentors.

    But what is alarming is that OARC submitted an exhibit purporting to be an e-mail, which clearly was not the e-mail they received. There is no prominent indication that redactions were made (such as when necessary to remove social security numbers, financial information, victim's or children's names), and there is no reason for altering the e-mail other than to make an assertion that is disrespectful of the truth. But for OARC's claim that Maynard was asking for additional security, which she clear did not, the altered e-mail appears as a thinly-veiled threat by Maynard that law enforcement will be necessary to protect Gleason.

    I believe this alteration may be a violation of the Colorado Rules of Professional Conduct committed by none other than those who are tasked with enforcing those rules in Colorado.

    ____________________________
    1 I previously reported a story regarding McMurrey on Septemer 10, 2009 (here).


    last updated: 08/30/2010

    tipline@KnowYourCOURTS.com