Judge Kreep Censured for Courtroom Levity

GeorgiaLeeLang100Judges hold a special place in the community and are expected to adhere to a set of rules and ethical standards that the average Joe or Jane can choose to ignore. But judges also have their own distinct personalities, biases, attitudes, and ideologies, which they labour to keep in check in order to ensure that justice is both done and seen to be done.

Some judges display severe personalities, no off-the-cuff quips and nary a smile adorns their face, while others have effusive, even bubbly personalities and seem to enjoy interacting with lawyers and the public.

A good example of the latter is Judge Gary Kreep of the San Diego Superior Court who, as a newly elected judge, was criticized for the levity he displayed as he presided over the cases that came before him.

He ended up in judicial disciplinary proceedings before the Commission on Judicial Performance over a number of issues related to his election to the bench, and for comments he made in court, most of which were relatively harmless, but could easily be misconstrued.

When a female litigant appeared before him he commented that he “loved her accent”. Ms. Hernandez was a United States citizen who spoke fluent English with a Mexican accent. He also quipped that he had “no intention of deporting her”.

When it was suggested to him that his comments belittled her, he acknowledged that his reference to deportation was inappropriate but explained that he was simple trying to “get a laugh and put people at ease”.

Judge Kreep also liked to use nicknames for the lawyers, clerks, and interns that regularly appeared in his courtroom. With respect to three legal interns from the Public Defenders Office, he called them “Bun head”, “Dimples” and “Shorty”. Shorty was 6 feet 7 inches tall and testified before the discipline board that Judge Kreep called him Shorty at least ten times while court was in progress.

He also had a penchant for commenting on the attractiveness of the women who appeared in his courtroom, saying, “She’s a pretty girl, you know you could smile”, or “the lovely attorney showed you the form, correct?”

A deputy city attorney, who was pregnant, was the recipient of his attention as well. On one occasion he said to defence counsel, “Let’s get on with this, we don’t want Ms. S. to have her baby in the courtroom.” During other appearances he said “It’s getting closer Ms. S.” and “She wants to go home and have her baby, I’ll pick on her today.”

In criminal court he interacted with a female accused charged with prostitution who entered a guilty plea. He asked her “Ma’am, anything I can do to get you out of the life?” Later he asked her, “Is it you like the money or just like the action?” The accused began responding only to be cut off by Judge Kreep who asked “Are you going to try to get a job at the bunny ranch in Nevada?” This comment was in regards to the accused’s statement that she might leave California. His final remark was “I don’t think it’s a good lifestyle choice, but it your lifestyle choice and it’s your decision.”

At the discipline hearing Judge Kreep testified that his comments were intended to show support for her predicament, and also to persuade her to change her conduct and lifestyle.

In response to the whole of the allegations against him arising from his courtroom decorum, Judge Kreep acknowledged that he ran the proceedings in a casual matter and admitted that his comments could be taken as offensive or demeaning, although that was never his intention. He denied that his levity rose to the level of sexual harassment.

The offenses arising from his election campaign included his failure to report campaign expenses, and the use of his personal credit card and bank account to pay campaign expenses.

The discipline panel found that he engaged in one act of wilful misconduct, 17 acts of prejudicial misconduct and 11 acts of improper action, leading to the most severe form of censure. A minority of the Commission panel would have liked to see his removal from the bench, however, it was noted that most of his offenses occurred during his first year as a judge and he had changed his behaviour since then.

As for his in-court comments, in my view they were neither offensive nor demeaning, although admittedly, calling intern lawyers by fanciful nicknames was a bit odd. It seems to me that Shorty and the others could and should have addressed their discomfort with their nicknames directly with Judge Kreep, who by all accounts appears to be a congenial, likeable fellow.

Lawdiva aka Georgialee Lang

Family Law Lawyer Creates Fake Accounts for Opposing Counsel

GEO CASUALTwo busy family law lawyers in Illinois, Michelle Mosby-Scott and Drew R. Quitschau spent hours sparring in court as opposing counsel on dozens of cases.

However, their professional relationship became complicated, even sinister, when Ms. Mosby-Scott learned her colleague had set up a false Match.com account in her name, describing her as separated from her spouse, an agnostic, and a fan of grocery stores, all restaurants, the Pizza Ranch, and buffets.

Ms. Mosby-Scott obtained a court order compelling Match.com to provide her with the details of the IP address related to the fake account, which led to Mr. Quitschau’s doorstep.

He had also downloaded photos from Ms. Mosby-Scott’s law firm website and added them to her Match.com account.

But he didn’t stop there. He created false accounts in her name with the Obesity Action Coalition, Pig International, Auto Trader, Diabetic Living, and Facebook, not to mention posting negative reviews of her legal skills on martindale.com and lawyers.com.

As a result she began receiving harassing emails and phone calls from these organizations.

When approached by Ms. Mosby-Scott and the managing partner of his law firm, Mr. Quitschau denied any involvement but an IT expert was retained who confirmed that Quitschau was lying. He was immediately fired from his law firm partnership.

Ms. Mosby-Scott obtained a restraining order against Mr. Quitschau and his conduct is the subject of a pending hearing before the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission. Ms. Mosby- Scott remains mystified as to Quitschau’s motive, conduct which caused serious emotional distress for her and her family.

Lawdiva aka Georgialee Lang

Should Canadian Judges Wearing “Trump” Attire be Disciplined?

BarristerIs discipline in order for an Ontario judge who went shopping wearing a “Make American Great Again” t-shirt? What about a judge sitting in court the day after the American election wearing a baseball cap with the same logo?

Local resident Lorne Warwick was also shopping when he saw Justice Toni Skarica, of Ontario’s Superior Court, with the allegedly offensive t-shirt, describing his attire as “shocking” and a “flagrant display” of support for a politician who openly discriminated against Mexicans and Muslims. Mr. Warwick complained to the Canadian Judicial Council, suggesting that Judge Skarica’s fashion choice represented a breach of impartiality rules for judges.

In a letter dismissing Mr. Warwick’s complaint the Canadian Judicial Council referred to his concerns that President Trump was a serial liar, racist, and demagogue and that Judge Skarica’s “embrace” of such a man rendered him unfit to be an impartial arbiter for Canadian citizens before his Court.

The Council was persuaded by Judge Skarica that the t-shirt was simply historical memorabilia that had been given to him by his brother who had been in Washington, DC. He had worn the shirt to show a friend and without thinking, wore it to the grocery store. He confirmed he had not participated in the Trump campaign, had not donated monies, and had never been engaged in activities with the Republican party. Most importantly, he vehemently denied he was a racist.

However, the story for Judge Bernd Zabel is markedly different. He’s the judge that wore a Trump baseball hat in court on November 9, 2016. He apologized for his admitted “lapse in judgment” characterizing it as an attempt at failed humour. He also said:

“This gesture was not intended in any way as a political statement or endorsement of any political views, and, in particular, the views and comments of Donald Trump. I very much regret that it has been taken as such,” he said.

However, a transcript from the court proceedings revealed his support of Donald Trump:

“Brief appearance with the hat. Pissed off the rest of the judges because they all voted for Hillary, so. I was the only Trump supporter up there but that’s okay,”

“Just in celebration of a historic night in the United States. Unprecedented”

Interviewed by the Toronto Star newspaper, Anthony Moustacalis, president of the Ontario Criminal Lawyers’ Association opined:

“Judges like Zabel are outliers in an otherwise elite court led by an innovative and hard-working chief justice. He should have matched their demanding work ethic, read their judgments, or sought their wise counsel,…
Instead, he has besmirched his position and embarrassed his colleagues and he should step down immediately, pending judicial council review, if he has any respect left for the court, and the public.”

A record number of 81 complaints to the Ontario Judicial Council followed, resulting in a directive that Judge Zabel no longer conducting court hearings. His conduct is the subject of a hearing before the Council scheduled for August 23, 2017.

Admittedly Judge Bernd Zabel has called into question his ability to impartially adjudicate matters that come before him, particularly where they involve visible minorities or members of the LGBTQ community. Judges hold a place of honour and prestige in Canadian communities and the slightest taint of bias is sufficient to attract pointed scrutiny and perhaps severe discipline.

Sitting since 1990, Judge Zabel is an experienced jurist who crossed the line, although it should be pointed out that support of Donald Trump does not necessarily mean that a Trump fan endorses every part of his philosophy. Nonetheless, it is one thing for a lay person to support Mr. Trump, but quite another for a judge from the bench to endorse a politician of any stripe.

It remains to be seen whether Judge Zabel’s behaviour results in his removal from the bench.

Lawdiva aka Georgialee Lang

Zealous Advocacy or Abuse of Process?

GEO CASUALThis week two Vancouver lawyers were excoriated by a Supreme Court Justice because of the tactics they employed in a case involving the proposed adoption of a young Metis child, referred to as SS. (A.S. v. British Columbia (Director Of Child, Family and Community Services),2017 BCSC 1175)

Lawyer JH represented foster parents who were desperate to retain custody and adopt the young child, while lawyer NG represented the biological parents, who supported the claims of the Metis foster parents. Their mutual nemesis was the Director of the Ministry of Child, Family and Community Services who determined the child, born in 2013, should be placed for adoption with a non-Metis Ontario family who had already adopted the child’s two siblings.

The court battle was hard fought involving multiple and duplicate actions and subsequent appeals, however, the lynchpin of Madam Justice Fisher’s damning findings against lawyer JH centered on a settlement letter JH sent to the Ministry, threatening to disclose a recording of an interview between Ministry social workers and the child which he said would show that the social workers had perjured themselves in their evidence in court. HH wrote:

“This is critical information which should be made available to Madam Justice Dickson, the panel hearing the appeal, and every subsequent Justice hearing any further matter in these and all related proceedings. Should the contested litigation continue, appropriate sanctions may be appropriate against the 3 social workers and the Director.

I have instructions from my clients, counsel for the birth parents, and the President of the BC Metis Federation, that if the Director is prepared to consent to my clients adopting S.S. by 10:00 a.m. this Wednesday, September 7, 2016, my clients, the birth parents and the BC Metis Federation are prepared to discontinue all legal proceedings, with the exception, of course, of the finalization of the adoption, and will enter into comprehensive releases involving all of the parties with respect to any and all possible legal outstanding matters.”

Despite repeated requests by the Ministry, JH refused to produce the alleged tape, a tape that if it existed was of questionable origin since the social workers had not recorded the meeting. If a recording existed it could only have been done surreptitiously by the unwitting child.

Madam Justice Fisher found that JH and NG had become blinded by their zeal to obtain custody for the foster parents ignoring that the Ministry could only settle the case if it was in the child’s best interests. To accept JH’s proposal would be a dereliction of their duty to act only in the best interests of their wards. A settlement to avoid scandal, the purported perjury, would be unconscionable. Madam Justice Fisher characterized JH’s conduct as a form of blackmail.

Lawyer NG was chastised for an email he sent accusing a Ministry lawyer of conduct that was “totally outrageous”,”totally unreasonable” and of a pattern of behaviour that showed “utter disrespect for the Court and to counsel”. He then threatened to report the alleged misconduct to the Law Society of British Columbia, apparently forgetting that while counsel may report another lawyer’s conduct, it is inappropriate to threaten to do so. One reports or not, but threats to report are sacrosanct.

The Court found that the lawyers’ conduct, which also included advancing inconsistent versions of their clients’ claims and unreasonable delay tactics was worthy of rebuke in the form of an order that each pay special costs to the Ministry for their egregious conduct, a rare sanction from the court. It is commonplace to order that a litigant pay costs but to order a lawyer to be responsible personally for costs is highly unusual and it is even scarcer to see a judge order special costs, which is typically 90% of the actual costs of the litigation.

The Reasons in this case illustrate that while lawyers should advance every legitimate argument in favour of their client, if they become enmeshed in their client’s cause they may lose objectivity and the perspective required of them. Following a client’s instructions will not protect an overzealous lawyer who is expected to control heated litigation as both an effective advocate and an officer of the court.

It is important to note that both JH and NG retained lawyers to represent them at the hearing where special costs were imposed and I predict that each lawyer will appeal the ruling of Madam Justice Fisher.

Lawdiva aka Georgialee Lang

Couple Convicted of Satanic Child Abuse Freed From Prison and Declared Innocent

GEO_edited-1
You may recall the hysteria in the 80’s and early 90’s when an organized network of daycares were alleged to be involved in satanic ritual child abuse of youngsters in their care, the most infamous being the McMartin preschool case.

Virginia McMartin operated her preschool in Manhattan Beach, California employing family members and other staff. An investigation was commenced after one student’s mother reported to the police that her son had been sodomized by a McMartin staff member. From there the case snowballed with allegations of all manner of sexual acts involving 360 children. Eventually Mrs. McMartin and six employees were charged with 321 counts of child sexual abuse involving 48 children.

The McMartin trial lasted seven years at a cost of $15 million with not one conviction entered. Apart from prosecutorial misconduct it was determined that the interviewing of the children by specialized social workers was inherently flawed by suggestive, leading questions and interviewing which induced false memory syndrome.

The number of wrongful convictions for ritual sexual abuse is not documented but this week a couple from Austin Texas were declared innocent after serving 21 years in prison. Dan and Fran Keller operated a daycare from their home until three children accused them of dismembering babies, torturing pets and videotaping sexual orgies with the children. They were eventually convicted of sexual assaulting a three-year-old girl and sentenced to a 48-year prison term.

Their convictions in 1992 were based on the evidence of a young doctor with limited experience with sexual abuse victims who testified there was physical evidence of sexual interference. He later recognized that his inexperience had led to an erroneous conclusion that the child had been sexually abused. Prosecutors requested the release of the Kellers in 2013 and asked the court to reverse their convictions, which was done, however, the appeal court declined to pronounce the couple innocent.

The Kellers are now senior citizens who lost twenty-one of their best years, years that were more difficult because of the nature of the offence that resulted in their imprisonment. With their exoneration and declaration of innocence they will each receive $80,000 for every year they served in prison. Dan and Fran Keller are surprisingly upbeat and say they simply want to get on with their lives, now their nightmare is finally over.

Their pro bono defence lawyer, Keith Hampton, maintains that the Kellers were victims of the “satanic panic” that swept the United States in the early 90’s assisted by inept social workers and gullible police officers. The Keller investigation also identified other abuse suspects, including an Austin police captain and several of their neighbours.

Lawdiva aka Georgialee Lang

5 of the Dirtiest Divorce Tricks

Some divorcing spouses treat each other deplorably. In these sad cases, it is actually hard to believe they were once in love. Candor and kindness are replaced by artifice and cruelty. Divorce lawyers are well aware of the grab bag of dirty tricks spouses inflict on each other. My top five dirtiest divorce tricks are:

1. Conflicting Out All the Top Divorce Lawyers

An age-old practice for a spouse who expects a long, drawn out divorce battle is to ensure their estranged partner can’t retain a top divorce lawyer. It goes like this – husband or wife makes appointments with the top lawyers in the area. At each meeting they reveal enough about their situation that the top lawyer, who they have no real intention of retaining, cannot act for their spouse. If each top lawyer charges them $500.00 for a one hour consultation, they only spend a few thousand dollars to ensure they have defanged their spouse by preventing him or her from hiring a “gun” equivalent to their top-tier counsel. Yes, this happens in the world of high net worth divorce.

2. Firing Your Lawyer Just Before Trial

Another effective divorce trick is to fire your lawyer weeks before your divorce trial is set to commence. How does this work? It’s easy. Let’s say you are the wife of a wealthy husband. Since you obtained a court order ejecting your husband from the family home, you now reside in luxury with peace and quiet; you are receiving thousands of dollars a month in tax-free child and spousal support; and your life consists of tennis lessons, lunch with the girls at the Club and evening soirees. Meanwhile your husband is doing what he always does: travelling around the world doing business deals to support your mutual lifestyles. He doesn’t even see the kids much, so there’s no hassles at all.

Why would you spoil all this by taking a chance that a judge may eliminate some part of your lavish lifestyle or impose an access schedule for the children to see their father that may interfere with your plans?

3. Transferring Your Assets Off-Shore

While you may live a life of champagne and caviar, it is unlikely you can maintain that level of opulence if your spouse has arranged to stash all his liquid assets off-shore in trusts set up in any number of tax havens such as the Bahamas, the Isle of Man, Turks and Caicos or Panama.

In many jurisdictions a Court may make an order that off-shore assets be divided between the spouses, but just wait until you see how difficult it is for you to convince the foreign jurisdiction they must obey the order of a North American Court. All I can say is good luck!

4. Arranging Multiple Mortgages on Your Real Estate

It is not uncommon to see marriages where the “little lady” has no idea of what she and her husband are really worth. Imagine a spouse’s disappointment when their lawyer informs them that the family home and their summer cottage are mortgaged to the hilt and have little or no equity. Their once middle-class standard of living evaporates as Mrs. now looks for a basement suite to house her and her two children.

Another real estate divorce trick is to build a lavish home on leased land that is situated on property that is in the agricultural land reserve, so that while it may have cost $3 million to build, it has no real market value since nobody in their right mind would purchase this property. Yes, this is a true story.

5. Building a House of Cards

For a time life is grand, but inevitably problems arise in your marriage. In an effort to please your spouse you try you to spend your way back to the marriage you once had. Little does your spouse know that the trips to Europe, Hawaii and the Super Bowl were leveraged, courtesy of American Express or Visa.

The marriage does not survive and you discover your net worth is much less than you expected as you have tens of thousands of dollars in credit card debt all used for the family. Let’s just hope the Sistine Chapel was worth it.

Perhaps you think that with the explosion of mediation and collaborative divorce, these tricks have lost their luster? Think again. For spouses who need revenge more than they need closure, they are alive and well.

Ungrateful Children? You’re Not Alone.

GEO#1What everybody wishes for...a big lottery win, happened in 2011 to an English couple, Dave and Angela Dawes. They won $131.3 million dollars (US) in the Euromillions lottery, open to residents of the United Kingdom and the Isle of Man. Not surprisingly, David Dawes left his job as a factory worker, ready to enjoy the good life.

Ecstatic about their good fortune, they were equally generous with their family and friends, sharing $32 million dollars with them, as well as starting their own charity. Over a two-year period, two million dollars was gifted to Mr. Dawes' 32-year-old son Michael, who had served in Afghanistan, and his partner Jame Beedle, age 34.

Michael and his partner quickly blew through the money and wanted more. Dave Dawes expressed his concerns to his son, but the tipping point occurred when a dispute broke out at a birthday party for Michael's step-mother, his father's wife.

Mr. Dawes was not pleased when his son showed up at the party with no gift for his wife. Michael insisted the flowers he brought her was the best he could do for a "woman who had everything". As a result of their heated exchange, accompanied by too much alcohol, Michael and his father became estranged and Michael filed a lawsuit against his father.

He alleged that his father had promised he would "always be looked after". In reliance on that alleged promise, Michael Dawes said he had given up his position as a Lieutenant with the Royal Navy Fleet Auxiliary. He had previously worked as a lecturer at Southampton University and was an IT expert.

Michael asked the court to order that his parents be obliged to continue with their financial support so long as they were alive, explaining that the original funds he received helped him with his mortgage, afforded him the opportunity to purchase a BMW, and allowed him to provide funds to his friends and his partner's family.

At trial the evidence showed that over $1.3 million US had been spent by Michael in the first month, followed by an injection of $650,000 US into a house in Portsmouth, and the gifting of $300,000 US to friends. It was revealed that Michael and his partner were spending $40,000 US a month, described by the court as "some sort of Walter Mitty existence."

Mr. Dawes' counsel commented that his client's generosity "had not been repaid with gratitude... and his client's son has "developed a sense of entitlement."

Meanwhile, the ungrateful son suggested his father "showed arrogance and ungenerosity of spirit"...saying that his father's attitude changed from humbleness to grandeur.

A decision from Judge Nigel Gerald was handed down quickly, dismissing son Michael's lawsuit and saying that: “There was no basis on which any rational or normal human being could conclude that they could go back for more money whenever they wanted.” Judge Gerald remarked that Mr. Dawes could stop “bailing out his profligate son”.

Lawdiva aka Georgialee Lang