Nasty Judge’s Sexism Leads to New Trial

BarristerThere is no place for mean-spirited judges in Canadian courts, but regretfully a few slip through the vigorous screening process and become tyrants in an institution where they preside as untouchables.

Mr. Justice Jean-Guy Boilard, of the Quebec Superior Court, is a case in point. A former crown prosecutor, he was appointed to the Quebec court in 1977, beginning a career steeped in controversy. Boilard retired in 2012 but not before leaving a legacy of arrogant, pompous, and derisive in-court commentary attacking the lawyers who had the misfortune of drawing him as their judge. His behavior was so loathsome that Crown Attorneys in Quebec circulated a petition urging their colleagues to sign on, in an attempt to avoid Boilard’s courtroom.

In 2001 Judge Boilard was conducting a trial involving seventeen members of the Hell’s Angels when, in the words of the Canadian Judicial Council, he was “insulting and unjustifiably derogatory…displaying a flagrant lack of respect” for defence counsel, Gilles Dore. Boilard chastised Mr. Dore saying “an insolent lawyer is rarely of use to his client” and also criticized Dore’s “bombastic rhetoric and hyperbole” and dismissed his “ridiculous” argument.

After the hearing, Gilles Dore delivered a scathing letter to Judge Boilard calling him “a coward…pendantic…aggressive…petty…arrogant…unjust…that he was of dubious legal acumen” and made “shameful, ugly, vulgar and mean personal attacks on the unsuspecting”.

Boilard removed himself from the motorcycle gang trial while Mr. Dore was left to respond to a complaint to the Barreau du Quebec, who ultimately found his letter was “likely to offend and was rude and insulting”. Dore was suspended from practice for 21 days, a ruling that was upheld by three other courts, including the Supreme Court of Canada in 2012.

In an inquiry to determine if Justice Boilard’s unilateral departure from the criminal trial was worthy of his removal from the bench, the Canadian Judicial Council ruled it was improper but not so serious that public confidence in the judicial system was undermined. This finding was made in the face of evidence that Judge Boilard’s withdrawal took place four months into the trial and was recommenced at great expense by a new judge.

However, the final blow to Judge Boilard’s reputation was the finding of the Quebec Superior Court this month that his abrasive, insulting behavior directed at criminal defence lawyer Elise Pinsonnault so profoundly compromised the 2011 jury trial of Sebastian Hebert, who was convicted of first-degree murder, that a new trial was ordered. Judge Boilard’s insulting comments included the following exchanges with Ms. Pinsonnault:

Boilard: “It would probably be a good thing if Ms. Pinsonnault listened to us.”

Pinsonnault: “I am sorry your Honour…I can do two things at the same time.”

Boilard: “That’s what women are doing all the time. It does not mean that it is always done well.”

And later:

Boilard: “What is it you want to introduce?”

Pinsonnault: “Some photos!”

Boilard: I’m not asking you to be hysterical. I’m simply asking you to answer me.”

As well:

Boilard: “Listen here, there is a limit to amateurism, isn’t there?”

Boilard: “I am not in the habit of responding to lawyers’ questions. Nor am I in the habit of polishing their education in criminal law.”

Despite the emotional rollercoaster for the victim’s family and the expense and inconvenience, a new trial was required said Chief Justice Hesler:

“Such animosity, such contempt on the part of the presiding judge, so flagrant and repeated to the appellant’s lawyer, leads me to believe that the fairness of the trial was in all probability compromised.”

It is staggering to think that Mr. Justice Boilard spent 35 years on the bench mired in anger and hostility and not one person stopped him.

Judge Trashes New York Landmark “Carnegie Deli” in Divorce Ruling

49afd8240a58bf0fb97d4a86105572c1I was in New York city last fall and near the top of our agenda was a trip to the Carnegie Deli, a landmark in mid-town since 1937 and run by the Levine family since 1976. Its claim to fame is kosher pastrami, corned beef, and their famous cheesecake, all of which they can ship almost anywhere in the world. It’s a very kitschy little place with uneven floors and plastic table cloths, but there is always a line-up.

I didn’t expect the Carnegie Deli to be featured in a divorce post, but it seems that Marian Harper Levine and her husband Sandy, who now runs the deli with her, were lambasted by Manhattan Supreme Court Justice Matthew Cooper for their petty squabbles, while litigants with serious problems were put on the back burner. The audacious judge said:

“What I care more about is the fact they’ve made millions of millions of dollars on the backs of dishwashers, cleaners and pastrami slicers who make as much in a year as they’ve made in a day or two.”

This was apparently in reference to a recent $2.65 million dollar settlement reached between the Levine’s and their staff, who were cheated out of proper wages for over a decade.

Mrs. Levine’s application was to reduce the $11,00 per month she has been paying her husband in spousal support, a request that was denied by Judge Cooper. She also complained that her husband, who began an affair with the deli’s former hostess, had helped himself to huge sums of money, an allegation that was called “all smoked meat and mirrors” by Mr. Levine’s witty attorney, Donald Frank. Mrs. Levine took exception to the trivialization of her concerns by opposing counsel, a view that Judge Cooper dismissed saying:

“This is not a case where I lose sleep at night. This is not some case where I have people with disabled children, where I have people who can’t afford to make next-month’s rent”…If I made light of anything, if I joked more than I should have, if I occasionally used a sarcastic tone…it’s not that I’ve lost track of what this case is about…”

No doubt we’ll hear more about the dissolution of the Levine’s 22-year marriage…as for me, I really didn’t like their cheesecake at all!

Lawdiva aka Georgialee Lang

Judge Presides Over Child Support Hearing While Conducting an Affair with Litigant

DSC01152_2 (2)_2If you were the payor father in a child support hearing and you learned that the judge presiding over your case was having an affair with your child’s mother, how angry would you be? How about if you read an email from the judge to your ex, agreeing with her suggestion that you be sent to jail because you’re in arrears of child support?

“I figure if he hasn’t come current by his court date, he gets jail to pay. If he says he can’t bring me the $$, I’ll put him on a tether (electric monitoring) til he brings the receipt…or do “double time”.

You might think this kind of corruption comes from a judge in Russia or Zimbabwe, but you’d be wrong. Judge Wade McCree was, until recently, a judge in Wayne County Michigan, home to two million people, best known for Motown and Motor City, and of late, the 18 billion dollar debt and subsequent bankruptcy of the City of Detroit.

Judge McCree’s judicial career ended ignominiously this Spring when Michigan’s Supreme Court suspended him for six years, after finding his conduct affected not only the litigants involved, but harmed the integrity of the judicial system as a whole.

Initially Judge McCree pulled a “Weiner” by texting a partially nude photo of himself to a female deputy sheriff, and was under investigation by the Judicial Tenure Commission. Rather than minding his “p’s and q’s” while under scrutiny for that indiscretion, he began an affair with Geniene LaShay Mott, who was the complaining party in People v. King, a court proceeding involving the enforcement and collection of arrears of child support against Robert King, who was the father of one of Ms. Mott’s children. He was in arrears of support in the amount of $15,000.

Judge McCree’s offences included:

1. Conducting an affair with Ms. Mott while he was presiding over her child support hearing;
2. Engaging in sexual relations with Ms. Mott in his judicial chambers;
3. Allowing Ms. Mott to access the court house through a rear, private door and utilize the judicial parking lot;
4. Surreptitiously arranging for Ms. Mott’s cell phone to be delivered to her in court by a sheriff so she could call him during the hearing;
5. Texting Ms. Mott from the bench while presiding over other cases;
6. Accepting Ms. Mott’s suggestions as to how he should deal with her child’s father;
7. Giving money to Ms. Mott, as much as $6,000;
8. Lying to the Judicial Commission concerning the date that he ended his affair with Ms. Mott;

But there was even more. Judge McCree presided over People v. Tillman, reducing Mr. Tillman’s bond in another child support case. Tillman was a relative of Ms. Mott’s, a fact known to McCree. And when his affair with Ms. Mott cooled down he lodged a complaint with Wayne County’s Prosecuting Attorney, alleging that Ms. Mott was stalking him and extorting him by demanding $10,000 in exchange for terminating her pregnancy and not revealing the affair and pregnancy to Judge McCree’s wife. In fact, the alleged crimes never occurred.

While Judge McCree’s attorney argued “no harm, no foul”, the judicial panel, comprised of seven judges, disagreed, saying the judge was well aware that his conduct was egregiously inappropriate as evidenced by an email he sent to Ms. Mott:

“Second, you are the complaining witness on a case that is before me. Naturally if it got out that we were seeing each other before your baby daddy’s case closed, everybody would be in deep shit”.

As for the aggrieved Mr. King, he filed a lawsuit against Judge McCree alleging constitutional violations, including the right to equal protection under the law and the right to be treated fairly in legal processes. District Court Judge Avern Cohn ruled against Mr. King finding that Judge McCree’s decisions in King’s case were “judicial acts” covered by “judicial immunity”, a protection that applies even if a judge’s actions are negligent, incompetent, or malicious.

Unfortunately for Mr. King, this week the U.S. Sixth Circuit Court of Appeals endorsed Judge Cohn’s decision while declaring Judge McCree’s behavior “reprehensible”:

“Casual readers of this opinion…may erroneously conclude that…we are somehow endorsing Judge McCree’s conduct or going out of our way to protect one of our own…We do nothing of the sort.”

The Appeals Court also noted that “the best justice possible” was achieved by the Michigan Supreme Court when they suspended Judge McCree for six years.

Is this the end of Wade McCree’s judicial career? Only the people of Detroit can decide that, since Michigan State judges are elected, not appointed.

Lawdiva aka Georgialee Lang

Tennessee Judge Fired for Refusing to Approve the Name “Messiah” for Baby Boy

DSC01152_2 (2)_2When couples with kids separate they can fight about almost anything. One of the most common points of disagreement is what surname a child will use in the future. Mom wants her surname used by the child, while Dad wants his, or one of them proposes a double-hyphenated last name. Yes, these cases are routinely heard by family court judges, usually with little fanfare.

A naming case attracted more than the usual amount of attention when Jaleesa Martin and Jawaan McCullough appeared before Tennessee Judge Lu Ann Ballew quarrelling over what surname their son Messiah should use. The Child Support Magistrate surprised both parents when she unilaterally ordered that Messiah could not use the name of Jesus and ordered that he be called Martin McCullough.

Judge Ballew opined that the name Messiah was reserved for Jesus Christ and that the youngster would suffer embarrassment and derision if he were forced to assume a name that was associated with God the Son. Messiah’s parents successfully appealed Judge Ballew’s order where the appellate court held her ruling was unconstitutional. End of story? Not quite.

Judge Ballew, whose appointment was at the pleasure of the court service, was fired last week for “inappropriate religious bias”, with the Chief Judge noting she had been cited previously for a similar offence. She will face a judicial hearing on March 3, 2014.

Something tells me there is a lot more to this story. Stay tuned….

Lawdiva aka Georgialee Lang

Judge “Friends” Wife While Hearing Her Divorce Case

P1010870 - Version 2She’s a Facebook fan and also a Florida judge who thinks its OK to “friend” a litigant in the middle of her divorce trial. No, I’m not kidding!

Sandra Chace and her husband Robert Loisel had just finished their divorce hearing and were awaiting the Judge’s decision, when Sandra received a request from the Judge to become a Facebook friend.

Ms. Chace immediately contacted her lawyer who recommended she not accept the request, so she ignored it.

Shortly thereafter the Judge handed down her Reasons. To Ms. Chace’s dismay the decision was highly favourable to her husband. Notably, the Judge left her responsible for the majority of the family debt and granted her spouse extremely generous alimony.

After learning this Judge had previously contacted litigants through social media and had been compelled to recuse herself, Ms. Chace’s lawyer brought a motion before her alleging a reasonable apprehension of bias based on her internet overture to his client and his client’s rejection of it.

The protocol for applications alleging bias is to go back to the Judge who made the order and have him or her review the situation.

Several years ago I brought a similar application before a judge in the British Columbia Supreme Court on the basis that his remarks during the hearing could lead a reasonable person to believe he was biased against my client.

At the time I thoroughly researched the law on bias and was not surprised to see that in 99.9% of cases, the judge determined there was no bias. That’s the finding this Judge made as well.

Ms. Chace then appealed the decision to the Court of Appeal who disagreed with the Facebook friendly trial judge. The Appeal Court found that Ms. Chace was caught “between the proverbial rock and a hard place”. She was trapped in a difficult position: Should she respond to the Judge’s ex parte communication or ignore it and risk offending the judge?

The Appeal Judges quashed the order of the trial judge and remitted the matter back to the trial court. Ms. Chace can only hope she does better the second time around.

Lawdiva aka Georgialee Lang

BC Court of Appeal Allows New Hearing for “Game-Playing” Litigant

BarristerThis week’s decision from the British Columbia Court of Appeal in Ghavim v. Jamali provides a stark picture of how a family law litigant can use the system to thwart a “just, speedy and inexpensive” resolution to a family law case.

The parties were married for 20 years, immigrating from Iran to British Columbia. The marriage broke down in 2009 and in September of 2010 Ms. Ghavim filed a divorce action seeking division of property and child and spousal support. There were several interlocutory applications and a five-day trial was set for November 2012.

Ms. Ghavim’s lawyer, in an effort to bring an end to the issues in the case, set down a hearing in August 2012, called a summary trial. A summary trial is an expedited hearing to resolve a case, short of a lengthy trial. Family law lawyers are encouraged to bring finality to family law cases to decrease costs and the emotional wear and tear of protracted litigation.

On the appointed date in August, Mr. Jamali showed up without a lawyer and sought an adjournment to obtain counsel. I have never seen a Court refuse an adjournment application brought by an in-person litigant and the case was adjourned for a month.

When the case began in September, Mr. Jamali, not surprisingly, still had no lawyer, but the case proceeded, as it should have. He did bring an interpreter with him.

On a summary trial the evidence before the court consists of affidavits, transcripts of other sworn testimony, and relevant documents. Each of the parties filed two affidavits.

The wife alleged her husband had a luxury apartment in Tehran valued at $1 million dollars that provided rental income of $7,000 per month. Her husband brought a lease agreement to court that showed a rental income of $50.00 a month. He also said the apartment had only $50,000 in equity with a fair market value of $200,000 to $300,000. Ms. Ghavim asserted that the rental agreement was a forgery, a recurring feature in cases like this one.

The parties sold their home in the Lower Mainland in 2009, each receiving a portion of the net sale proceeds of $259,000, however, Mr. Jamali’s previous lawyer had given an extra amount from his trust account to Mr. Jamali, although he had no authority to do so. That money, of course, was long gone and the judge voiced his criticism of the lawyer’s questionable actions.

During the hearing the judge asked questions of Mr. Jamali in order to elicit the testimony he would need to make a decision. Notably, the judge queried him with respect to the deposits in his bank account. He was utterly unable to explain the source of the funds.

The judge asked to see Mr. Jamali’s wallet, noting that for someone who had no income he was carrying a large amount of cash. Of course, Mr. Jamali had an answer for that: it was money to pay the interpreter. As an aside, I am puzzled that Canadian immigrants like Mr. Jamali who cannot speak English manage to obtain status in Canada, but that’s for another day.

The judge was openly skeptical of the husband’s evidence and at one point suggested that he stop “playing games”. The Court ultimately did not believe that Mr. Jamali had no income and imputed income to him, ordered him to pay retroactive child support and provided Ms. Ghavim with $32,000 in lump sum spousal support, which was the amount remaining from the proceeds of sale of the home.

Of course, Mr. Jamali retained the apartment in Tehran and its rental income, since only a court in Iran could divide that property.

Mr. Jamali appealed on the basis that the judge showed bias against him during the hearing. The Court of Appeal characterized the issue as to whether a reasonable observer of this trial would conclude that Mr. Jamali’s trial was unfair and ruled they would.

The Court of Appeal noted that Mr. Jamali probably didn’t understand the process of a summary trial, he probably didn’t know that he could argue that there be a full trial, he probably didn’t know that when he answered the questions of the judge that the judge would rely or scrutinize his replies to determine credibility, he probably didn’t know that he could ask to cross-examine his wife on her affidavits,and he probably didn’t know the judge would make a decision.

Yes, that’s the upshot of the case. The Court of Appeal saw Mr. Jamali as a victim of an unfair hearing and ordered that the parties start over, while confirming that the new process should also be a summary trial.

Perhaps its been too long since the Appeal Court presided over a family law hearing where there is nothing but excuses: I don’t have a lawyer; I don’t speak English; I didn’t have enough time; I didn’t know I could do this or that; please believe me, although I could have brought appraisals and documents to prove my case.

This is just one example of why the Canadian public is fed up with the system of family justice and yes, these cases happen time and time again.

How much do you want to bet that Mr. Jamali shows up again without a lawyer and the new judge makes a similar ruling?

Lawdiva aka Georgialee Lang

Father Pays His Child Support, But Still Jailed for Six Months

DSC00280Texas father Clifford Hall has a great relationship with his 11-year-old son. He pays child support and sees his son regularly. So what’s the problem?

In November 2013 Mr. Hall was in court where his ex-wife’s lawyer confirmed there were no arrears of child support. Fast forward to January 2014, when he reappeared in court and was advised that due to an administrative error his direct deposits of child support to his ex-wife’s bank account had resulted in an underpayment of support. His ex also complained that he was not in adherence with their parenting agreement, as he was seeing his son more often than the agreement permitted.

He immediately paid the $3000.00 owing and expected to walk out of court with everything squared away. Not so fast…

Houston Judge Lisa Millard had something else to say “I sentence you to Harris County Jail for 180 days”. Gulp… That’s six months!

I have to wonder whether it gets dumber than this. A good father who pays his support and sees his child, who, but for an unintentional underpayment, will no longer be in a position to pay support, and can only see his son in a prison visiting room, while the State of Texas expends tens of thousands of dollars to keep him locked up.

Fortunately, there is now talk of a state judicial investigation and Change.org have started a petition directed at Texas governor, Rick Perry, calling for the release of Mr. Hall.

This judge needs her head examined!

PS Change.org is the online petition company that launched the internet petition against George Zimmerman in the Trayvon Martin case in Florida, obtaining 2.2 million signatures

Lawdiva aka Georgialee Lang