Liar, Liar, Pants on Fire: Perjury in Family Court

GEO#1People tell lies, so-called “white” lies, they tell half-truths, they prevaricate, fabricate, distort, and tell “whoppers”, and they can, unless they are in a court of law or a government hearing where they are “sworn to tell the truth, the whole truth and nothing but the truth.

Yet nowhere is the truth more elusive than in a family law trial and the recent case of Kneller v. Underwood 2015 BCSC 1410 is a prime example of perjury under oath.

The issue was whether or not 36-year-old Twyla Kneller and Jim Greenwood of Cranbrook, B.C. lived together in a marriage-like relationship for nine years, as Twyla testified, or whether they simply were “friends with benefits” as he maintained.

If they were in a spousal relationship, Ms. Kneller would be entitled to share in his property in light of the 2013 law that gave common law spouses the same property rights as married spouses.

Ms. Kneller described a traditional relationship where Mr. Greenwood worked and paid the bills, while she maintained the home with its wood stove, doing the grocery shopping, cooking, baking, canning, cleaning, laundry, and gardening. The parties initially resided in a trailer on bare land and later in a renovated home on acreage, all owned by Mr. Greenwood.

Mr. Greenwood’s parents and grandparents lived on adjacent properties and Twyla became close to his mother.

Interestingly, despite his family’s obvious knowledge of their son’s living arrangements, they were not called to testify, although many other witnesses paraded through the courtroom.

During the nine-year relationship the parties separated on one occasion for three and a half months, not surprisingly, considering Ms. Kneller’s evidence that Mr. Greenwood’s physical
assaults landed her in hospital twice. She testified to regular punching, slapping, kicking, and other abuse. She said that initially Jim would apologize for this behaviour but after a while he didn’t bother. She stayed because she loved him, an oh-so-familiar sentiment in cases of domestic violence.

When it was time for Jim Greenwood to testify his evidence could not have been more different than Ms. Kneller’s.

He swore they never lived together, although she spent some nights with him. He said she lived in Cranbrook with her mother. He apparently forgot that in an earlier affidavit he said “they lived together off and on”. He testified their finances were completely separate and they each filed “single” status tax returns, a misstatement he was forced to correct when his 2010 tax return showed he claimed tax deductions in respect of his “common law spouse”.

He denied he gave her a “promise” ring and was cornered when it came to light he had added her to his medical and dental insurance as a common law spouse. He recounted a denigrating anecdote to the court where he felt it necessary to “take her home”. When it was apparent the “home” he referred to was his, and not Twyla’s Cranbrook home, he squirmed and became agitated and nervous.

When he abruptly asked Ms. Kneller to leave, he said she had almost nothing to pack, despite photographs showing a U-Haul with furniture and personal chattels piled in. He had forgotten that in an earlier affidavit he swore she took all of the furniture, although he paid for it all. He also couldn’t keep the date of their separation straight: Was it August 2013, as he first suggested, or October 2013?

Of course, who to believe was the central issue in the trial, a task that was not daunting for the trial judge. He found that Ms. Kneller was one of the “most genuine, down-to-earth, credible and engaging witnesses” he had ever encountered.

As for Jim Greenwood the court said:

“The respondent’s evidence, in particular, was disingenuous and lacking in credibility. It consisted almost entirely of vague, unsubstantiated and unsupported assertions. His evidence at trial contradicted his earlier affidavit evidence in many significant respects. The best he could muster when faced with the conflicts in his sworn evidence was to blame the drafter of the affidavits, to say he wasn’t a very good reader and to state, “that is what you get when you don’t look at the things you sign.”

The trial judge also declared that Mr. Greenwood’s blanket denial the parties ever lived together, and his testimony that he never physically abused his spouse were “devoid of truth”.

Finally, the trial judge said he didn’t believe or accept anything Jim Greenwood had to say that contradicted the evidence of his common-law spouse and her witnesses.

“In my view, the respondent would be well served by a recalibration of his moral compass.”

It’s called “perjury”, an indictable criminal offence with a possible 14-year jail term attached to it, and yet, liars are not prosecuted in Canada. Oh yes, Air India terrorist, Inderjit Singh Reyat’s acquittal in 2003 on murder charges prompted the Crown to charge him with perjury, securing a conviction and a nine-year prison term, but that is the exception, not the rule.

Not so in the United States where Roger Clemens, Barry Bonds, Martha Stewart and others faced charges, not for steroid use or securities fraud, but for lying.

Canada’s refusal to deliver consequences to parties who blatantly lie in court needs to be addressed. Mr. Greenwood was a poor liar but there are many cases where Mr. or Ms. Charming fool the court and justice does not prevail. Perjury is a serious issue, particularly in our family courts and steps must be taken to punish liars who make a mockery of their oath to tell the truth.

Lawdiva aka Georgialee Lang

Former Toronto Lawyer Founder of Infidelity Site, Ashley Madison

_DSC4851Noel Biderman’s corporate slogan is “Life is short, have an affair”, although he says that personally he does not subscribe to his company’s philosophy.

A graduate of Toronto’s Osgoode Hall Law School, Biderman says he saw an opportunity after he noticed all the “sexual partner wanted” ads on Craigslist, and realized over 30% of the men and women on the list were married or otherwise “attached”.

His site, Ashley Madison, was hacked on July 12, 2015 by cyberpunks who call themselves “The Impact Team”, a sophisticated hacker crew that snagged 33 million personal files, announcing their attack by leaving a message on staff computers, accompanied by music, heavy metal group AC/DC’s “Thunderstruck”.

The company operates in 50 countries and has 38 million users, many of whom are terrified their name, location, and email address will be released. The ramifications are enormous and include the possibility of extortion and bribery or worse. Toronto police say that already they are aware of two suicides related to the breach of security, including a police captain from San Antonio, Texas.

The already beleaguered former reality star Josh Duggar’s name also came to light, leading to his admission that despite his well-known Christian values and his anti-divorce stance he is a member of the site.

Media articles abound suggesting the Ashley Madison debacle will translate to enhanced business opportunities for divorce lawyers,

While Mr. Biderman has offered a $500,000 Cdn. reward for
information leading to the capture and arrest of the hackers, he must also contend with a class-action lawsuit that demands multi-millions of dollars in damages.

Mr. Biderman may wish he had never left the law as he now copes with the “largest data breach in the world”.

All we know for sure is that the Impact Team didn’t like Ashley Madison’s casual rejection of marital monogamy, although Biderman says that he’s not to blame if men and women wander outside their marriage. Not surprising for a practising Jew who critiques the Torah’s Ten Commandments, including “Thou Shall Not Commit Adultery” as irrelevant and out of date.

Lawdiva aka Georgialee Lang

Jared Fogle, Subway Spokesman, Had Secret Life as a Pedophile

10950859361151CDPJared Fogle was a clean-cut college kid from a good family in Indiana who weighed 425 pounds and decided he needed to lose some weight. He gave up his craving for fast food and began eating exclusively at Subway. Along the way he lost 235 pounds on what he called the “Subway diet”.Subway’s head office heard about Jared’s success and presto! he became the well-paid spokesperson for Subway Restaurants. By 2013 he had filmed over 300 commercials for Subway and travelled around the country touting the health benefits of Subway’s fare.

In 2001 Jared married his first wife, a union that ended in divorce in 2007. In 2010 he remarried and fathered two children. His life, it seemed, was charmed. He was famous, affluent, and had a loving family.

But all that changed when Jared Fogle’s home was raided by FBI and Indiana State Police last month, an investigation that followed the arrest of Fogle’s colleague, Russell Taylor, who was the director of the Jared Foundation, a non-profit that was geared to programs and education for obese children. Taylor was charged with child exploitation, possession of child pornography and voyeurism. He apparently shared videotaped kiddie porn with Jared, obtained through hidden cameras in his home.

After his arrest he attempted suicide in the Marion County Jail and was placed on life support for a time. He is now back in jail.

Subway immediately suspended its relationship with Jared and with the news this week that Jared will plead guilty to charges of possessing child pornography and traveling to pay for sex with minors, Subway has now terminated his contract.  It is reported the charges involve 14 minors, both male and female, and that as part of his plea bargain he will serve a minimum of five years in prison, although he could be sentenced to as long as 12 years. He has also agreed to compensate each of the 14 victims the sum of $100,000.

His parents, a doctor and a teacher, released the following statement today:

“Our family is shocked and profoundly disappointed in Jared’s abhorrent criminal behavior and we are very concerned for the well-being of those affected by his conduct. At the same time, we are gratified that Jared is accepting responsibility for what he has done by agreeing to plea guilty to the charges filed today and by volunteering to make restitution to the victims.

We are also gratified that he is seeking medical treatment. We hope that he will become healthy again and are confident that after he serves his sentence, he will continue to make amends. We look forward to the day that he rejoins our family and society.”

Jared’s wife also filed for divorce this week and will now raise two children under the age of five without their father. Further, as a registered sex offender, when Jared is released from prison he may not have any contact with his children.

The American Psychiatric Association characterizes pedophilia as a mental disorder, while other experts working with sex offenders say it is a sexual orientation and compare it to the once held view that homosexuality was a mental illness, a position that has now been abandoned.

Jared’s lawyer advised media outlets that Jared will avail himself of psychiatric treatment and has already begun therapy.

Lawdiva aka Georgialee Lang

Kelly Rutherford’s Lawyer Threw the Dice and Lost

GEO CASUALThere are certain actions that are available to family law counsel that in the long run may hurt a client more than help them.

The first that comes to mind is the notion that revenge can be exacted by reporting one’s estranged spouse to the income tax authorities. In high conflict divorce each spouse is looking for a way to “get even”. However, anonymous reports to the IRS or Revenue Canada are wrong-headed and counsel who recommend such actions seem to forget that if their client’s spouse owes additional monies for income tax, usually their client is on the hook as well. Income tax debts that relate to income earned during the marriage are generally found to be “family debts” and both spouses must share the burden of payment.

Similarly, actress Kelly Rutherford’s lawyer “threw the dice” by contacting immigration authorities with allegations of bad conduct, urging them to deport her German-born husband, Daniel Giersch, who was in the United States on a visitor’s visa that had been extended from time to time.

The Decision in the Rutherford case paints a vivid picture of Kelly and Daniel in the California court hallway where Rutherford’s lawyer, Matthew Rich, in the presence of his client and opposing counsel, dialled the phone number of the U.S. State Department and urged them to arrest Daniel Giersch, advising them of his Visa status and the likelihood he would wrongfully remove the children, Hermes and Helena, from the United States.

Then Matthew Rich turned to Mr. Giersch and his lawyer suggesting that if they would sign a “stipulation” that Daniel would not have visitation with the children until further order of the court, that Rich would make the immigration problem go away. Giersch declined and shortly thereafter was deported.

The trial judge found that it was more than coincidence that Daniel’s deportation occurred after Mr. Rich’s imprudent call to the State Department.

Matthew Rich threw the dice, no doubt hoping that with Daniel out of the way, Ms. Rutherford would have custody of the children in the United States with little “interference” from the children’s father. What her lawyer didn’t count on was the possibility that Daniel Giersch would become primary resident parent outside of the United States, but that’s exactly what happened.

As the judge notes in his Decision, if Mr. Rich had not taken the steps he did, it is very likely Kelly and Daniel, who each were described as “excellent” parents, would have co-parented their children and avoided the emotional and physical expense of a custody and relocation trial.

While strategy is important in custody battles, all scenarios must be considered before action is taken that can backfire leaving disastrous results. Kelly Rutherford did not help herself by agreeing to her lawyer’s strategy, a finding the judge also made.

She couldn’t blame this on her lawyer.

Lawdiva aka Georgialee Lang

When Obnoxious Lawyers Converge, Clients Are Not Well-Served

DSC00507 (2)One of the worst possible scenarios for those unlucky enough to be involved in a lawsuit is when their respective lawyers are at each other’s throats. You may think you are being well-served by an aggressive, boorish lawyer whose focus is on denigrating and insulting opposing counsel, but you are not.

On the other hand, as a client you should be happy if you know or see that your lawyer has a good working relationship with opposing counsel, as you can be sure that the resolution of your case will not be hampered by ill-will between lawyers.

Oddly enough, some clients are disturbed when they see cooperation between their lawyers, misreading it as a sign of weakness on their lawyer’s part. Nothing could be further from the truth.

In fact, there are lawyers who are so well-known for their cranky, obnoxious behavior that other lawyers refuse to take on cases where Mr. or Ms. Miserable is on the opposite side.

A recent example of bickering lawyers arose in a courtroom in Chicago, where last week the final act of an ongoing legal saga came to an end, with Judge Raymond Mitchell ordering both lawyers to resign from the case and their clients to retain new lawyers.

Lawyers Joel Brodsky and Michael Meschino treated their clients and the court to months of disturbing behavior while representing their clients in a business dispute, taking potshots at one another in open court, with no concern for their lack of professionalism and decorum.

At one point Mr. Brodsky called Mr. Meschino a “moron” and a “liar”. Meschino responded with words like “fat, short, and bald” complaining that “Brodsky was constantly shaking his bald head, so that a light was shining on me”. Over time, when the lawyers were in court, up to four sheriffs were present in the courtroom and on two occasions Mr. Meschino was escorted out of the courtroom by sheriffs.

Outside of court, threatening and insulting emails were the norm, and discovery of each party took place in the courthouse rather than in the privacy of a court reporter’s office, as is the usual practice.

Judge Mitchell advised Brodsky and Meschino that a copy of his order would be sent to the Illinois Attorney Discipline Commission so that appropriate action could be taken by the Illinois Bar.

Joel Brodsky is certainly no stranger to ethics complaints. He was the lawyer that acted for former police office Drew Peterson, who was accused of murdering his third wife Kathleen Savio.

Before the case was finished Mr. Brodsky was replaced by new counsel, an event that did not sit well with him. His public comments after his departure as counsel “shocked” the trial judge and resulted in an ethics investigation.

After Drew Peterson was convicted, the animosity between Brodsky and successor counsel, Steven Greenberg was so intense that Brodsky sued Greenberg for defamation, suggesting that Greenberg was a “pathological narcissist”.

Not surprisingly, Brodsky also suggested that Mr. Meschino was mentally ill.

While emotions can run high in hard-fought litigation, the behavior cited by Judge Mitchell has no place in our justice system and the harshest punishment should be levied against lawyers who embarrass themselves and the administration of justice. Sadly, it is their clients who suffer most.

Lawyer Who Played “Nazi Card” Slammed by Appeal Court

BarristerDonn Martinez was riding his motorcycle approaching a network of freeways referred to as “Orange Crush” in Orange County, California, so named because of the maze of highways that come together at this point.

Unfortunately, he lost control of his bike and was injured. He attributed the accident to a poorly lit curb in the middle of the highway that divided two converging roadways. He sued the California Department of Transportation for negligence.

Donn was an ordained minister and a member of a Christian motorcycle club called “Set Free Soldiers”. The logo of the Set Free Soldiers is a skull wearing a World War II German-style military helmet, called “Fritz helmets”. Some say they look very much like the helmets worn by the U.S. Army. His license plate read “The Evil 1”, a biblical term for “Satan”.

Mr. Martinez’s trial lawyer was concerned that opposing counsel would exploit his client’s motorcycle affiliation, portraying him as a low-life biker and thus, prejudicing the jury against him.

To avoid these kinds of tactics, pretrial orders were obtained that provided there be no reference at trial to “membership in motorcycle clubs/gangs or to stickers or emblems” used by Martinez. As well, Martinez’s termination of employment from a California school district was off-limits. Finally, the court ordered there be no evidence led to elicit sympathy for the Department of Transportation with regards to their dire financial situation.

Despite these clear rulings defence counsel, Karen Bilotti, ignored the ground rules in a manner the Court of Appeal described as “egregious” as they overturned the verdict that dismissed Mr. Martinez’s case. It began with her Opening Statement where she made numerous references to the state of the Department of Transportation’s financial status. The Appeal Court said:

“Blessed with a trial judge who allowed it, trial counsel ran roughshod over opposing counsel and the rules of evidence. We have no choice but to reverse.”

The Appeal Court described Ms. Bilotti’s cross-examination questions as “gratuitously besmirching” of Mr. Martinez’s character and despite repeated objections from his counsel that were sustained (agreed to) by the trial judge, she flippantly ignored him.

Most blatant, however, was her final question to Mr. Martinez’s wife:

“At the time of the accident, the motorcycle that your husband was riding had a skull picture on it wearing a Nazi helmet; right?”

In relation to this breach of the pretrial court orders the Appeal Court referred to “Godwin’s Law”, a term coined by American attorney Michael Godwin in 1990 that provides that the first person to introduce the Holocaust or make analogies with Nazism is the loser in any discussion or argument. Bilotti was apparently attempting to counter the positive evidence led by Martinez’s lawyer of his charitable, Christian activities.

In her closing argument Ms. Bilotti mentioned the word “Nazi” multiple times, no longer referring to Mr. Martinez’s motorcycle helmet but directly to him. The Court noted:

“The law, like boxing, prohibits hitting below the belt. The basic rule forbids an attorney to pander to the prejudice, passion, or sympathy of the jury.”

The Appeal Court concluded its opinion with a directive that the clerk of the court was instructed to send a copy of the Reasons to the State Bar (equivalent to the Law Society) notifying the Bar of its reversal of the case based “solely on prejudicial attorney misconduct”.

There is a broad line between aggressive advocacy and representation that intentionally mischaracterizes a litigant and the evidence proferred. Bilotti knowingly crossed that line, no doubt in her zeal to win at all costs.

Lawdiva aka Georgialee Lang