How “Uncivil” Can a Lawyer be in Court? The Groia Case

GEO_edited-1If you are a litigator in Canada you should know the name “Joe Groia”. He is a masterful legal advocate from Ontario who specializes in securities law. His prominence in the legal profession was capped this week when Groia v. The Law Society of Upper Canada (now the Law Society of Ontario) was argued before the Supreme Court of Canada. (Law Society of Upper Canada v. Joseph Peter Paul Groia, 2012 ONLSHP 94)

Why is Mr. Groia suing Ontario’s Law Society and why would the Supreme Court of Canada agree to hear his case? In June 2012 the Law Society held that Mr. Groia had professionally misconducted himself while defending his client John Felderhof in an action taken against him by the Ontario Securities Commission. You may recall that Mr. Felderhof was second in command at Bre-X Minerals Ltd, the Canadian-owned gold mine in Borneo that turned out to be a fraud, leaving thousands of investors with losses of hundreds of millions of dollars after investing in the bogus company.

Groia’s representation of Mr. Felderhof was second-to-none, as Mr. Felderhof, after 160 days of trial, was acquitted of all charges. However, the Law Society took it upon themselves to call Mr. Groia to account for his allegedly “uncivil” behaviour during the proceedings, conduct so egregious that during the trial, lawyers for the Ontario Securities Commission asked the judge to stop the trial arguing that he had lost jurisdiction by failing to rein in Mr. Groia’s outrageously rude behaviour in the courtroom. That application failed and the trial continued.

Two Ontario courts reviewed and upheld the Law Society’s ruling against Mr. Groia, describing his trial conduct as “unrestrained invective”, excessive rhetoric”, “theatrically excessive”, “sarcastic and petulant”, “more guerrilla theatre than advocacy in court”, and “attacks on the prosecutor’s integrity”.

Nonetheless, it is noteworthy and significant to Mr. Groia’s defence that the trial judge did not hold him in contempt, neither did he report Mr. Groia’s trial behaviour to the Law Society.

Groia, in rebuttal offered the following arguments:

1. He cast no personal aspersions against opposing counsel, but only targeted the Securities Commission and the prosecution;

2. His basis for alleging prosecutorial misconduct was based on his reasonably held views;

3. His language was mischaracterized by the Law Society and the courts;

4. The tone of the trial was an important factor in assessing his conduct, particularly in light of the prosecutor’s behaviour;

5. The Law Society retroactively applied standards of the “civility movement” to his conduct; and

6. His obligation as an effective advocate outstripped any absence of civility.

Without reading the whole of the transcripts of the trial, it is difficult to assess whether Mr. Groia’s behaviour fell so far below the standard of professionalism of a barrister that he ought to have been sanctioned by the Law Society. His original punishment was a two-month suspension of his license to practice law and an order that he pay costs of $250,000. This penalty was later reduced by the courts to a one-month suspension and $200,000 in costs.

Mr. Groia would, of course, argue that even reading the transcripts one would not be in a position to assess the conduct and roles of each of the counsel and judge at the trial and that may very well be true. It’s the old story that “you had to be there” to understand the dynamics.

Media reports from the hearing in the Supreme Court of Canada this week, appear to underscore the high court’s focus on the absence of disapproval from the trial judge, who was best placed to determine whether Mr. Groia’s conduct sunk to a level where he deserved to be chastised or disciplined.

As a trial lawyer in hard-fought cases, I tend to agree that it is not the Law Society’s place to interfere as a back-seat referee in a hotly contested proceeding where an unsuccessful defence will lead to dire consequences for the accused.

The Supreme Court of Canada clearly wants to provide guidance to litigators. We must now wait to see what the Supremes think…

I Didn’t Do It: Is There Justice for the Wrongfully Convicted?

_DSC4851My sense of justice really comes unglued when I read about another poor schlep who has spent years in prison for a crime he or she did not commit.

One of the most recent is Romeo Phillion, now 74-years-old, who was wrongfully convicted of murdering Ottawa firefighter, Leopold Roy in 1967. Mr. Phillion spent 31 years behind bars, mainly because of his initial false confession, quickly recanted, which resulted in a plea deal, and the despicable suppression of crucial evidence by the Crown, that would have exculpated Mr. Phillion.

Nothing really important…just uncontroverted evidence known by the Crown, that Romeo Phillion was two hundred kilometres away from the murder scene. You mean he was somewhere else? Yes, that’s right. You mean the real killer is still at large? Yes, again, that’s correct.

It’s a tie as to which family should feel more aggrieved, Mr. Roy’s or Mr. Phillion’s.

While I am a law and order defender, what really galls me is the lack of remorse of police and prosecutors in botched criminal cases. In Mr. Phillion’s case, retired Superintendent John McCombie said “Everything I did, I did according to the law”, also noting that he was “surprised and disappointed”, presumably because Mr. Phillion was set free. The level of arrogance is astounding.

Even with this evidence and Mr. Phillion’s release from prison in 2003, the Crown insisted that he be retried, maintaining this position until 2009 when all charges were dropped. In May 2012 Mr. Phillion filed a $14 million dollar lawsuit, which no doubt will be vigorously opposed by the Crown.

Quebecer Rejean Hinse is another victim who never received an apology. Imprisoned in the 1960’s for an armed robbery conviction, he served eight years of a fifteen year sentence. However, justice was still illusory after the Quebec Court of Appeal quashed his conviction because the Crown, in their wisdom, only entered a “stay of proceedings”.

A “stay” puts the case on hold for one year or permanently, but provides no resolution as to guilt or innocence. Clearly not a satisfactory outcome for an innocent accused.

Mr. Hinse was able to take his case to the Supreme Court of Canada where the Court ruled there was insufficient evidence to convict. Despite his acquittal, he had to fight for financial compensation, finally in 2011 receiving $4.5 million in a settlement with the Quebec government and obtaining a judgment against the federal government of $8.6 million. Not surprisingly, the feds are appealing the order that they pay millions in compensation.

The road to a declaration of innocence is long and tortuous. Of course, Canada is not alone in its reluctance to implement a process where the wrongfully convicted can have speedy access to independent review procedures, DNA testing and the like. Criminal justice reformers have recommended an independent committee, outside of the criminal justice system, to address these horrific cases, a plan that is long overdue.

In a recent Illinois case, 50-year-old Andre Davis, who served 32 years in prison for the 1980 rape and murder of three-year-old Brianna Sickler, was exonerated when it was determined that blood and semen at the crime scene was not Davis’. Nonetheless, State Attorney Julia Reitz could not bring herself to admit the unbelievable injustice of Mr. Davis’ wrongful conviction, instead remarking they would not retry Andre Davis because of the age of the case and deceased or missing witnesses.

While it is difficult to find Canadian statistics on the number of wrongfully convicted, the University of Michigan has established a national registry for the United States where they record 891 wrongfully convicted persons between January 1989 and March 2012.. These numbers do not include another 1,170 victims who were exonerated in “group exonerations”, cases where thirteen separate “police scandals” have resulted in overturned convictions.

I can’t imagine what it must be like to be tried and convicted at trial, endure an unsuccessful appeal, perhaps even a further appeal to the Supreme Court of Canada, and then languish in prison for dozens of years, for a crime you didn’t commit.

When Rejean Hinse was asked by the media to describe his time in prison, he showed them a picture of Edvard Munch’s “The Scream” to explain the utter despair he suffered. No amount of money can atone for a life in prison.

Lawdiva aka Georgialee Lang

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

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

17 Years in Prison for Divorce Fraud

BarristerCalifornia businessman Steven Zinnel, age 50, thought he could get away with cheating his wife, his two teenage children, and the bankruptcy court, but he was wrong….boy was he wrong!

Zinnel and his wife, of Gold River, separated in 1999. By 2001 their uncoupling got even more ugly when he told his wife she would get nothing, no assets or support because he was filing for bankruptcy.

Zinnel systematically funnelled millions of dollars into the names of other persons and true to his word, filed for voluntary bankruptcy in 2005. He also laundered money through shell corporations in order to conceal his true income.

Shockingly, he did all this with the assistance of lawyer, Derian Eidson, age 50, who used her trust account, her personal account and a corporation she owned to return the funds to Zinnel after his discharge from bankruptcy.

But he didn’t stop there…Zinnel went on to initiate an FBI investigation of his ex-wife, displaying a hatred that knew no bounds and that eventually led to his own demise.

In the course of the investigation, authorities uncovered Mr. Zinnel’s bankruptcy and divorce fraud. Before U.S. District Court Judge Troy Nunley he was sentenced to 17 years and eight months in prison, fined $500,000, and ordered to disgorge the sum of $2.8 million to the state.

Judge Nunley in bankruptcy court and the 3rd District Court of Appeal in respect of his divorce matter condemned Zinnel for his narcissistic arrogance, and found that while he was articulate and charismatic he used those traits for his own selfish purposes.

Yorba Linda lawyer Ms. Eidson, was disbarred and sentenced to 10 years and one month in prison for money laundering. She was also fined $200,000. Her undoing began when she commenced an intimate relationship with Zinnel and became a victim of her own greed.

As for Mr. Zinnel, his phone call to his son when first imprisoned shows that he still doesn’t get it…he told his son that he was “railroaded” and blamed his ex-wife!

Lawdiva aka Georgialee Lang

A Christian Response to Racism

BarristerOne common thread throughout mankind is the endemic ugliness of racism.

Human history is rife with examples: early Romans subjugated the Jews; slavery was rampant; India’s caste system ostracizes the untouchables; Japanese immigrants to Canada and the United States were rounded up and forced into internment camps; indigenous peoples in Canada, Australia, the United States live amid poverty and discrimination; Germany oversaw the murder of Jews, political prisoners, homosexuals, and the mentally disabled; colonialism and apartheid ruled South Africa;  Jim Crow laws ruled the south, and today in North America, African-Americans have risen up to demand an end to systemic racism, their action propelled by a wave of police shootings of black men.

Meanwhile, white America reels as black vigilantes assassinate white and black police officers in retaliation, as Black Lives Matter assumes centre stage in the public arena.

The question I pose is whether Christians should believe and act upon the notion that racial injustice is a gospel issue that deserves our energy and attention. I believe it is.

How could it not be when the spirit-breathed Word of God tells us that Christians should be peacemakers: “So then let us pursue what makes for peace and for mutual up building.” Romans 14:19

We are told to forgive those who do harm to us and treat our enemies with love. “Clothe yourselves with compassion, kindness, humility, gentleness, and patience.” Colossians 3:12

Admittedly, these are difficult aspirations for flawed mortals to embrace, but the message of the Gospel demands the abolition of discrimination of any kind, be it sexism, homophobia, ageism, disablism, fat-shaming, or religious discrimination.

When Moses descended from Mount Sinai with the commandments of God, men and women had no difficulty understanding the Sixth Commandment: “Thou Shall Not Kill.” Later, in the Gospel of John we read: “Whoever hates his brother is a murderer, and you know that no murderer has eternal life abiding in him.” 1 John 3:15

Jesus Christ, delivering his Sermon on the Mount, admonished his followers: “You have heard that it was said, ‘You shall love your neighbor and hate your enemy.’ But I say to you, love your enemies, bless those who curse you, do good to those who hate you, and pray for those who spitefully use you and persecute you, that you may be sons of your Father in heaven; for He makes His sun rise on the evil and on the good, and sends rain on the just and on the unjust.” Matthew 5:43-45

It seems there are so many ways that people hurt people, often inadvertently, but the pain remains the same. Is the Church of Jesus Christ prepared to tackle this difficult issue?

Following on the heels of a Sunnyvale, California church, a congregation in Concord, North Carolina is taking action to defeat the affliction of racism. Based on the 12-Step program of Alcoholics Anonymous, this predominantly white church invites their members and the public to join weekly meetings of Racists Anonymous, encouraging and fostering this decidedly uncomfortable conversation. Pastor Nathan King reports that the meetings attract old and young, those admittedly racist, and others who are unsure or believe they may have a problem.

The only sure remedy for racism is the love of Jesus Christ. The gospel of Christ has the power to transform our understanding of race and discrimination. We must confront it, name it, shame it, and banish it forever.

Lawdiva aka Georgialee Lang

Judge Presides Over His Own Divorce Case

GeorgiaLeeLang016

How would you feel if your jurist husband filed for divorce and coincidentally had his divorce petition assigned to his courtroom?  Hard to believe, but that is exactly what occurred with Texas Judge Miguel (Mike) Herrara.

 

In Judge Herrara’s discipline hearing he acknowledged that the same day he filed his divorce petition he learned it had been assigned to his courtroom. He didn’t think it was a problem because he and his wife, Melissa Carrasco were “trying to save the marriage and he did not want to do anything on the case”. (In my 28 years of practicing family law I have never seen a litigant file a divorce petition, while seriously “trying to save the marriage”).

He explained that he saw his role in the divorce as that of a husband, not an attorney or judge and justified his behaviour, saying:

“I did not care to place my family in the same position as other litigants find themselves, in conflicts and court hearings, which, for the most part only benefit the attorneys financially. It is really sad and embarrassing to see the reputation of some of the litigants being dragged in the mud in these court proceedings.”

Judge Herrara’s breach of ethics may have escaped scrutiny if he and his wife reconciled, but that didn’t happen. Instead, she retained lawyer Angelica Carreon who filed a counter-petition for divorce against Judge Herrara.

This did not please the judge who asked his wife why she was involving Ms. Carreon  who he alleged did not like  him. In his testimony he admitted that he refused to recognize the “legitimacy” of Ms. Carreon’s representation because she had improperly solicited his wife as her client, had campaigned against him during judicial elections, and was “dishonest, unethical and unreasonable”.

Several months after the judge’s original filing he terminated his divorce petition, leaving his wife’s counter-petition to be determined. At this stage, Ms.  Carrasco’s lawyer filed a motion requesting the judge to produce certain documents. Judge Herrara responded by filing a motion in his court for an order to extend the time beyond the normal time-frame for responding to the document request. He also filed a motion for a protective order.

Again, Judge Herrara did not recognize the absurdity of filing motions in his own court, saying that he did nothing wrong as he did not rule on the motions. But that wasn’t the end of his problems. His wife’s lawyer began filing motions requesting that he recuse himself from officiating over a number of other cases that were scheduled to be heard in his courtroom. Ms. Carreon alleged that Judge Herrara could not be fair and unbiased, because of the difficult professional relationship that had developed between them over her representation of Ms. Carrasco.

Many of the recusal motions were resolved by moving the cases to another judge, but several others remained in his courtroom and were not referred out. But, Herrara wasn’t done yet. He filed yet another motion to intervene in certain recusal cases because he wanted his views to be heard by the court. He testified that if he agreed to recuse himself he would be admitting the truth of Ms. Carreon’s allegations and would suffer at the polls in the next election.

The Texas Discipline Commission found that Judge Herrara failed to comply with the law, demonstrated a lack of professional competence, and engaged in wilful and persistent conduct that was inconsistent with his judicial duties.

They also determined that Judge Herrara showed no genuine remorse and continued to believe his conduct was justified.

His discipline? Six hours of instruction with a “mentor”. In 2016 he was re-elected for an additional four-year term.

Lawdiva aka Georgialee Lang

When Will Our Judges Speak Out Forcefully Against Perjury?

_DSC4851In yet another British Columbia family law decision, the court fails to denounce, in the strongest terms, a litigant whose testimony is rife with lies. Yes, this judge addresses credibility, but in the same anemic way that permeates most family law cases, namely ” I accept the evidence of the claimant where it differs from the evidence of the respondent.”

That’s it, no rebuke, no censure, not even an award of special costs, despite the litigant’s devious conduct requiring untold extra preparation and court time to present a narrative that is flagrantly false, requiring a robust defence….yes, a rebuttal to a pack of lies.

Ngo v. Do 2017 BCSC 83 focuses on the breakdown of the marriage of a Vietnamese couple who agreed they married and immigrated to Canada in 1994. From that point on the parties’ evidence is sharply divergent.

He said their marriage ended two years later, in 1996, while she maintained they lived together as husband and wife in the family home in East Vancouver until their separation in 2012. When asked where he lived after 1996, since he alleged he did not live with his wife and children,  he was unable to provide a single address, except to say that he lived in East Vancouver with a friend.

When asked to explain how it was that he and his wife added three additional children to their union after his alleged departure in 1996, he acknowledged that despite the shattering of the bonds of matrimony, they remained intimate with one another.

The date of separation was critical to a determination of the wife’s interest in two homes, a crab boat, and a license to catch crab. Ms. Ngo testified their first home was purchased in 2000 and became the family home where she and her husband raised the children, for all but one year of their marriage.  She believed the home was registered in her husband’s name. Not so, said Mr. Do. He testified that the home’s owner was Mr. Den Van Ta, who he said he barely knew, although he had earlier said Den Van Ta was”like a brother” to him.

A second home in Maple Ridge was purchased in 2004, however, Mr. Do said it was purchased by his cousin, Kevin Phan. He testified that he lived with the children in the home from 2004 to 2008 rent-free and that Ms. Ngo was not permitted to live there. Ms. Ngo gave evidence that her husband told her the second home was rented out, but in 2006 he moved the family to the second home for a year, advising her that it was a more convenient location to travel to his employment in Maple Ridge.

Eventually the Maple Ridge home was registered in Mr. Do’s name. He explained that his cousin took pity on him and gifted the property to him in 2007. However, land title documents described the transaction as a cash sale for $445,000, subject to his cousin’s existing mortgage. Mr. Do sold the Maple Ridge home in 2009 netting $145,000 in profit.

Mr. Do’s lucky streak continued. He advised the court that the first home in East Vancouver was later gifted to him by Mr. Den Van Ta. The statement of adjustments described the transfer as a “gift of equity from the seller to the buyer in the amount of $269,000.” He also purchased a vessel and crab license sharing the cost equally with Mr. Den Van Ta, who, no surprise here, later gifted his one-half interest in their crab business to Mr. Do, gratis, for free.

The parties’ two eldest children corroborated Ms. Ngo’s evidence, while Mr. Den Van Ta was called to back up Mr. Do’s version of events with respect to the first home and the crab business. He was less than impressive. Mr. Phan was not called to testify leaving the court to draw an adverse inference.

The outcome? Mr. Do’s evidence was rejected and all the family property was shared equally. However, nowhere does the court suggest that Mr. Do’s perjured testimony is an abuse of process or of such a character as to bring the administration of justice into disrepute. Can anybody reason why Ms. Ngo was not awarded special costs, which is a full reimbursement of every penny she paid to her lawyer to respond to her husband’s pernicious lies? The court’s apparent trivialization of perjury by failing to award  special costs to Ms. Ngo sends a strong message to litigants that perjury is acceptable.

Pulitzer prize-winning author James B. Stewart succinctly writes in “Tangled Webs: How False Statements are Undermining America”: “Our judicial system rests on an honor code: “I swear to tell the truth, the whole truth and nothing but the truth.” Perjury is not acceptable behaviour.”

Lawdiva aka Georgialee Lang