Posts Tagged ‘complaint’

Judicial Independence Equals Nonaccountability?

April 8, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”

What the Proponents Of “Judicial Independence” Say

The Justice at Stake Campaign has asserted the following:

Judicial independence means that judges are free to decide cases fairly and impartially, relying only on the facts and the law. It means that judges are protected from political pressure, legislative pressure, special interest pressure, media pressure, public pressure, financial pressure, or even personal pressure.

No one expects judges to be perfect, or please everyone. That’s why there are mechanisms to hold judges accountable. Rulings can be appealed up to the Supreme Court. Laws can be changed. Wrongdoing and ethical violations can be punished. In most states, judges must stand for re-election.

According to the Justice at Stake Campaign, This position is supported by the American Bar Association, American Judicature Society, Brennan Center for Justice at NYU School of Law, and a host of others. Without reading the rest of this post, one need only go to mmason.freeshell.org/methods.htm, to find out why “mechanisms to hold judges accountable” do not work with respect to federal judges. Federal Judges are above the law and can not be punished except under the most extreme circumstances and then only with public scrutiny.

You stop here and read the post on this blog, “Chief Judge J.L. Edmondson Aggressively Defends Judge Donald L. Graham” to see why “Judicial Independence” is a deeply flawed concept.

https://mcneilmason.wordpress.com/2008/04/17/chief-judge-jl-edmondson-aggressively-defends-judge-donald-l-graham


Preparatory Work

This is a fact oriented site backed up with actual real world documents and not some academic exercise. This site and similar ones takes the case of U.S. Judge Donald L. Graham and documents acts of judicial misconduct. It also documents the extreme measures that other judges will take to shield fellow judges from public scrutiny and hence accountability to the American public. The American public can not scrutinize what it does not know exists in the first instance. This author recommends that you first read the Allegations of Misconduct leveled at Judge Graham. Satisfy yourself that they are legitimate and return to this page. These allegations include, but are not limited to the following:

  • Committing a criminal act by abuse of the criminal contempt procedure. Judge Graham took a clearly invalid sua sponte issued pre-filing injunction or vexatious litigant injunction and made it the basis of a criminal contempt complaint and conviction. Judge Graham framed an innocent man by concocting a crime out of “whole cloth”. See Framed.
  • Lying and intentionally misrepresenting law.
  • Lying and intentionally misrepresenting material facts.
  • Refusing to rule on a motion for a preliminary injunction that had been pending for more
    than 17 months.
  • Allowing scores of motions and filings to languish without being decided.
  • Usurping legal authority. Allowing a Magistrate to issue an injunction prohibiting direct communication with the Highlands County Government.
    Additionally, prohibiting Marcellus Mason from making public
    records request under Florida Law directly to Highlands County.
  • Routinely violating clearly established law and the authority of the U.S. Supreme Court by issuing pre-filing injunctions.
  • Ignoring the U.S. Supreme Court denying access to the courts by refusing to state any reason for denying IFP applications.

Judicial Independence Equals Unaccountability

In the case of federal judges, it is the opinion of this author that Judicial Independence Equals Unaccountability. There are several methods of disciplining rogue judges that include:

  • Appellate Review. This could be Direct Appeal, Mandamus, or some other method of petitioning an appellate court for relief.
  • Judicial Misconduct and Disability Act. The Judicial Improvements Act of 2002 replaced 28 U.S.C. § 372(c), which formerly governed complaints of judicial misconduct or disability, with 28 U.S.C. § 351, et seq., effective November 2, 2002. This is a complaint procedure that is suppose to handle misconduct of a federal judge by filing a complaint with the Chief Judge and Judicial Council, composed of federal judges.
  • Lawsuit. A lawsuit can be filed against the offending judge, the lawsuit needs to defeat a virtually insurmountable concept called “absolute immunity” which means that a judge could intentionally jail someone and still not be punished. Judges get to decide who have absolute immunity” or “judicial immunity” and who doesn’t.
  • Impeachment. Congress has the right to remove any federal judge, however this is a massive undertaking for the Congress and one that is rarely used. See Section below on Impeachment.

Except for impeachment, the other three methods are controlled by Judges and most often without public scrutiny. If federal judges are determined to undermine each of these methods, they can do so quite easily and appear to be acting within the law. This is easily done with a process or tactic that this author calls “herding”. Herding being the shepherd or the cowboy leads the sheep or cows to the desired destination or outcome. In the sense for which this author uses the term “herding”, judges leads you to the desire outcome by choosing the method and controlling both the facts and their publication. Specifically, complaints under the Judicial Misconduct and Disability Act are summarily dismissed because the allegations are “directly related to the merits”. See Methods Page and Section 351 Page. This suggests that your allegations of misconduct, if true, can be addressed through the appellate process. Chief Judge J. L. Edmondson, Eleventh Circuit, U.S. Court of Appeal, has become very adept at this tactic and has defined judicial misconduct out of existence. Not only has he defined judicial misconduct out of existence he does not burden himself to list the allegations of misconduct or test them for veracity. Secondly, if you choose to sue the Judge, then your complaint will be summarily dismissed because the miscreant judge has “absolute immunity” even if your allegations of misconduct are true. See Graham’s Lawsuit. The appeals court need not even mention what the judge was being sued for in the first place. A judge could maliciously and knowingly improperly jail some one and still not be personally liable. The judges will say that the appellate process is your answer. Save impeachment, you now have only have the appellate process to address allegations of misconduct. The appeals court and in this case, the Eleventh Circuit, U.S. Court of Appeals, can and does render an unpublished opinion that simply ignores your allegations of misconduct or even outright lie. See Appellate Review. On Appeal the Eleventh Circuit picks the impertinent “facts” and chooses to publish or not publish. A graphical view of the overall process as to how complaints of misconduct against Judge Graham were handled can be found at : mmason.freeshell.org/methods.htm#herding_complaints_section or mmason.freeshell.org/mockery.jpg. Specifically, the appellate process with Judge Graham has been undermined with the following tactics:

  • Lying to Cover a Lie
  • Denying Access
  • Ignoring Issues. A truly egregious example is declining to review a Sua Sponte Issued Pre-Filing Injunction
  • Lying About Jurisdiction
  • Beyond the Scope of Appeal: A Despicable and Egregious Act

Impeachment Is Not An Option

Impeachment is not a likely option and virtually impossible as the process requires the attention of all the 535 members of the House and Senate. According to the Federal Judicial Center, http://air.fjc.gov/history/topics/topics_ji_bdy.html, only 13 judges have been before the Congress on impeachment charges in the entire history of the United States. Of these 13 judges, only 7 have been kicked out of office: John Pickering, West H. Humphreys, Robert W. Archbald, Halsted L. Ritter, Harry E. Claiborne, Alcee L. Hastings, and Walter L. Nixon. Judge Mark H. Delahay resigned. It is easier to impeach the President of the United States than to impeach a federal judge. For example, of the 43 presidents of the United States, two have been impeached, Bill Clinton and Andrew Johnson, or about 4 per cent. According to the Federal Judicial Center, we have had 3055 federal judges, only 13, or about 0.004 per cent have been impeached.

As a practical matter, federal judges are rarely called to answer for their performance on the job. As difficult as they are to remove, federal judges are equally difficult to demote. Article III explicitly prohibits the diminishment of a judge’s salary while in office, no matter how errant-or delinquent or unpopular-his or her decisions may be. On the whole, judges are easily the most independent constitutional officers.

On Judicial Activism, by Judge Diarmuid F. O’Scannlain
, URL: http://open-spaces.com/article-v3n1-oscannlain.php


JUDICIAL MISCONDUCT COMPLAINTS FILED AGAINST U.S. JUDGE DONALD L. GRAHAM

Judge Graham has a host of judicial misconduct filed against him. Chief Judge J.L. Edmondson’s has dismissed most of these complaints by simply defining judicial misconduct out of existence. State court judges have been removed for less reasons than the conduct committed by Judge Graham. Read the following complaints and Judge Edmondson’s reply and form your own judgment. The following complaints have been lodged against Teflon Don, or U.S. District Judge Donald L. Graham.

Pending Judicial Misconduct Complaints

Complaint Status

Judicial Conference

pending

Reconsideration
pending

June 25, 2008
pending

July 9, 2008
pending

July 15, 2008
pending

It has been said that the Committee on Judicial Conduct and Disability, has become quite serious in investigating federal judges for misconduct. According to law.com,
Binding National Rules Adopted for Handling Judicial Misconduct Complaints,

in March of this year, the Judicial Conference adopted the first-ever binding nationwide procedures for handling complaints of judicial misconduct. U.S. Dist. Judge Donald L. Graham has escaped discipline for his abusive and possible criminal behavior.  As a result of this, Mason submitted complaints to both the Judicial Conference and
Chief Judge J.L. Edmondson, Eleventh Circuit, US Court of Appeal,
again. These complaints are governed by 28 U.S.C. §§ 351-364,”The Judicial Improvements Act of 2002” formerly “The Judicial Misconduct and Disability Act“.  Previously, Chief Judge J.L. Edmondson, had been misconstruing the statute and summarily dismissing complaints of misconduct by simply regurgitating the statutory language at 28 U.S.C. § 352 which allows him dismiss complaints that are “directly related to the merits of a decision or procedural ruling“.  Judge Edmondson is alone in his view that legal error and judicial misconduct are mutually exclusive.  For more discussion on “legal error” and judicial misconduct, see article Chief Circuit Judge J.L. Edmondson Uses Perfect Scam of Negative
Definition To Defeat Complaints of Misconduct Under the Judicial
Misconduct and Disability Act
.  On Tuesday,  June 25, 2008, a new complaint of judicial misconduct was filed against Judge Graham.  Additionally, complaints of misconduct
were initiated against Judge Graham on July 9, 2008 and July 15, 2008.


JUDICIAL MISCONDUCT DEFINED

Judicial Misconduct has been defined by Jeffrey M. Shaman, DePaul University Law, Steven Lubet, Professor, Northwestern University Law, James J. Alfini President and Dean, South Texas College of Law, U.S. Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit,
in part as:

Judicial action taken without any arguable legal basis and without giving notice and an opportunity to be heard to the party adversely affected is far worse than simple error or abuse of discretion; its an abuse of judicial power that is prejudicial to the effective and expeditious administration of the business of the courts. See 28 U.S.C. § 351(a); Shaman, Lubet & Alfini, supra, § 2.02, at 37 (Serious legal error is more likely to amount to misconduct than a minor mistake.

See Opinion online at:

http://www.ca9.uscourts.gov/coa/newopinions.nsf/F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement

.

“[A] judge is guilty of “oppression in office” when that judge intentionally commits acts which he or she knows, or should know, are obviously and seriously wrong under the circumstances and amount to an excessive use of judicial authority.

State v. Colclazier
, 2002 OK JUD 1, 106 P.3d 138.

“Where honesty or integrity are at issue, a single action can result in a finding of judicial misconduct.” In re Hill, 152 Vt. 548, 572-75, 568 A.2d 361,373-75 (1989);

“Canon 3A(5) is violated where there is a pattern of unreasonable delay or where a particular instance is so lacking in legitimate justification that it is willful. See Matter of Long, 244 Kan. 719, 724, 772 P.2d 814, 818 (1989) (Canon 3A(5) violated where delay is significant, extensive, and unjustified”); Sommerville, 364 S.E.2d at 23 n.3 (sanctions appropriate under Canon 3A(5) where there is a pattern of delay resulting from either willful neglect of, or manifest inability to effectively perform, judicial duties); Matter of Alvino, 100 N.J. 92, 97 n.2, 494 A.2d 1014, 1016 n.2 (1985) (delay can violate Canon 3A(5) if “willful” or “typical of the judge’s work”);” See URL: http://www.libraries.vermont.gov/SUPCT/157/op90-478.txt.




Judicial Independence Equals Unaccountability

In the case of federal judges, it is the opinion of this author that Judicial Independence Equals Unaccountability. There are several methods of disciplining rogue judges that include:

Except for impeachment, the other three methods are controlled by Judges and most often without public scrutiny. If federal judges are determined to undermine each of these methods, they can do so quite easily and appear to be acting within the law. This is easily done with a process or tactic that this author calls “herding”. Herding being the shepherd or the cowboy leads the sheep or cows to the desired destination or outcome. In the sense for which this author uses the term “herding”, judges leads you to the desire outcome by choosing the method and controlling both the facts and their publication. Specifically, complaints under the Judicial Misconduct and Disability Act are summarily dismissed because the allegations are “directly related to the merits”. See Methods Page and Section 351 Page. This suggests that your allegations of misconduct, if true, can be addressed through the appellate process. Chief Judge J. L. Edmondson, Eleventh Circuit, U.S. Court of Appeal, has become very adept at this tactic and has defined judicial misconduct out of existence. Not only has he defined judicial misconduct out of existence he does not burden himself to list the allegations of misconduct or test them for veracity. Secondly, if you choose to sue the Judge, then your complaint will be summarily dismissed because the miscreant judge has “absolute immunity” even if your allegations of misconduct are true. See Graham’s Lawsuit. The appeals court need not even mention what the judge was being sued for in the first place. A judge could maliciously and knowingly improperly jail some one and still not be personally liable. The judges will say that the appellate process is your answer. Save impeachment, you now have only have the appellate process to address allegations of misconduct. The appeals court and in this case, the Eleventh Circuit, U.S. Court of Appeals, can and does render an unpublished opinion that simply ignores your allegations of misconduct or even outright lie. See Appellate Review. On Appeal the Eleventh Circuit picks the impertinent “facts” and chooses to publish or not publish. A graphical view of the overall process as to how complaints of misconduct against Judge Graham were handled can be found at : mmason.freeshell.org/herding_complaints_section or mmason.freeshell.org/mockery.jpg. Specifically, the appellate process with Judge Graham has been undermined with the following tactics:

Are Allegations of Misconduct Reviewable on Appeal?

March 27, 2008

Judge Donald L. Graham
judgegraham.jpg

A US Circuit Judge On the Potential Dangers of Unpublished Opinions

“If, for example, a precedent is cited, and the other side then offers a distinction, and the judges on the panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser. (I don’t say that judges are actually doing this–only that the temptation exists.) Or if, after hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug. Again, I’m not saying that this has ever occurred in any particular case, but a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judges are human beings.” 1 J. App. Prac. & Process 219 (1999). UNPUBLISHED OPINIONS: A COMMENT, Richard S. Arnold, Copyright © 1999 University of Arkansas – Little Rock School of Law ; Richard S. Arnold

The Meaningless Appeal

Marcellus Mason filed appellate briefs with the Eleventh Circuit, U.S. Court of Appeals, in two separate cases, 01-13364 and 01-15754, accusing U.S. Dist. Judge Donald L. Graham of the following misconduct and mismanagement:

  • Lying and intentionally misrepresenting the law.
  • Refusing to rule on a motion for a preliminary injunction that had been pending for about 19 months.
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction in clear violation of law and 28 U.S.C. § 636 (b)(1)(A) which clearly states:
    Notwithstanding any provision of law to the contrary-(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court except a motion for injunction relief,…”
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction to prohibit lawful and protected out of court communication between a citizen and his government.
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction placing restrictions on how public records are accessed under the Florida Public Records Act that the State of Florida does not allow. Judge Graham has refused to state where a federal judge gets the legal authority to administer public records under the Florida Public Records Act.
  • Allowing scores of significant pre-trial motions to go undecided for months without taking any action.
  • Involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction or vexatious litigant injunction which ultimately formed the basis of a criminal contempt complaint and conviction. See Framing An Innocent Person.

In an unpublished opinion, [Case No. 01-13664] the Eleventh Circuit, Judges Stanley F. Birch, Jr., Susan H. Black, and Stanley Marcus have expressly stated that allegations of judicial misconduct are not reviewable on appeal. Theses allegations were not tested for veracity they were simply ignored. Specifically, in the opinion rendered on October 16, 2002, Judges Stanley F. Birch, Jr., Susan H. Black, and Stanley Marcus asserted:

“Mason also raises issues that relate to non-sanction matters, e.g., .. the denial of his motions to disqualify the district court and magistrate judges…”

See Opinion, page 10. This is the sum total of appellate review as to whether Judge Donald L. Graham should have been disqualified due to misconduct. There is absolutely no discussion as to whether the allegations of misconduct are true or not.

Similarly, a petition for mandamus [Case No. 01-15754] was submitted to the Eleventh Circuit on or about October 2, 2001. This petition accused Judge Graham of misconduct. The Eleventh Circuit, Judges Rosemary Barkett, Jr., Susan H. Black, and Stanley Marcus, simply ignored the allegations of misconduct by stating only the following in a one sentence unpublished “opinion” :

The ” petition for writ of mandamus and petition for writ of prohibition” is DENIED.

mmason.freeshell.org/15754/mandamus_denied.pdf .

mandamus


References
Case No. 01-13664 Appellant’s Brief

Case No. 01-15754 Mandamus Petition