Politically Incorrect Judge Faces Disciplinary Charges

GEO CASUALWhat’s wrong with a judge discretely complimenting a civil servant witness in a guardianship case? Plenty, according to New Jersey’s Advisory Committee on Judicial Conduct, who have Superior Family Court Judge Joseph A. Portelli in their cross-hairs for passing a note to a family service specialist who was testifying, that read “You look nice today.”

He is also accused of inviting a deputy attorney general and her supervisor into his chambers during a break in court proceedings, putting his arm around the deputy AG’s shoulders and telling both of them they were doing a great job. On the same occasion he also said that he liked how she was “shoving it up the law guardian’s ass”.

Now the latter comment may be vulgar but is it really so outrageous that formal discipline is required?

Other allegations include Judge Portelli’s practice of making children more comfortable in his courtroom by inviting them to visit his chambers, engaging in small talk, and permitting them to sit behind the bench on his lap and use his gavel. On one occasion in 2013, Portelli invited a child to sit on his lap and then jokingly turned to a deputy attorney general who was present in the courtroom and said to her, “No…you can’t come and sit on my lap next.”

The judge, age 60, has been on the bench for nine years with an impeccable record and no complaints. Nonetheless the PC police say his comments show poor judgment and a lack of dignity and respect for his office.

Somebody needs to get a life!

Lawdiva aka Georgialee Lang

Arrest Made in Thirty-Year Old Cold Case Called the “Family Court Murders”

49afd8240a58bf0fb97d4a86105572c1The notion that your wicked past will eventually catch up with you is one motivating factor for investigators following up on unsolved crimes, even decades after the abhorrent acts were committed.

There’s a story about “consequences” out of Australia that is sure to warm the cockles of any police detective’s heart… and yours and mine!

Between 1980 and 1985 a series of horrific crimes took place in Sydney, Australia that terrorized the city, particularly the legal community. Media pundits called the case the “Family Court Murders”.

Firefighter Leonard George Warwick seemed to be the link between a number of homicides beginning in February 1980 with the shooting of Stephen Blanchard, Mr. Warwick’s brother-in-law.

A few months later Justice David Opas heard the door bell ring at his home and opened the door to be greeted by a bullet that took his life. He was the judge who presided over a hotly disputed custody case involving Leonard Warwick, his then-wife, Andrea Warwick, nee Blanchard, and their one-year old daughter.

With Judge Opas’ violent demise a new judge was appointed, Justice Richard Gee. He too was the victim of violence when his home was bombed, injuring him and his family.

In April of 1984 the courthouse in Parramatta was bombed. Thankfully no one was injured but you shouldn’t be surprised to learn that it was in Parramatta that Mr. Warwick’s custody trial took place.

During Judge Gee’s convalescence, another judge was directed to take over the Warwick case. Justice Ray Watson presided until July of 1984 when his wife Pearle was killed by a bomb placed on the doorstep of their home.

In February 1995 Andrea Warwick’s lawyer, Gary Watts, was the target of another bomb attack. However, Mr. Watts no longer lived at the address targeted. When the new tenant opened the hood of his car parked outside the home to do some minor mechanical work, he saw the bomb and called police. He was a very lucky man.

But there was more to come, much more. Six months later a bomb was detonated at a Jehovah’s Witness Kingdom Hall in a suburb of Sydney, killing minister Graham Wykes and injuring 13 other parishioners, who were at the church for a service. The connection to Mr. Warwick? Andrea Warwick’s sister attended the church and had been a shoulder for her to cry on.

And then the violence stopped, coincident with Andrea Warwick’s decision to relinquish custody of their now 7-year old daughter to Mr. Warwick.

All of this occurred with nary an arrest despite a reward of $500,000, until a cold case squad picked up the investigative mantle in 2012 after decades of dormancy.

Last week police in Sydney laid 32 charges against Leonard Warwick, including four murder charges and attempted murder charges. New South Wales deputy police commissioner, Nick Kaldas commented:

“The evidence that we’ve gathered includes significant new evidence, historic evidence enhanced using technology not available 30 years ago, witness evidence that was historic and new witness evidence.”

It boggles the mind that Mr. Warwick was not arrested 30 years earlier, but as the police commissioner remarked:

“We won’t give up!”

Lawdiva aka Georgialee Lang

Sleepy Judges: Winkin’, Blinkin’, and Nod

DSC01152_2 (2)_2Every trial lawyer has their own story of a judge falling asleep on the job. Before I was called to the bar I was a law clerk for an elderly judge and would accompany him to court to take notes.

On more than one occasion I observed him nodding off during counsel’s tedious argument. During “tea” breaks in his chambers he would also rest his head on his chest for more than just a few minutes He retired at the mandatory age of 75 and went on to hold several high-profile government positions until he retired for the last time at the age of 85.

I’ve also heard stories of lawyers dropping large books on their podiums or the floor to awaken the sleeping judge who will decide their client’s fate.

Of course, the precursor to sleep is yawning and closing one’s eyes. That is fairly routine in long cases where a lawyer consistently meanders away from relevant evidence, or has the habit of repetition, a trait I abhor.

The “precursor” is only welcomed when it is opposing counsel who is causing the judicial condition.

Judge Ian Dodd, age 56, of the New South Wales District Court, endured a media frenzy when his judicial sleepiness was thrust into the spotlight in 2005. The allegations included incidents in 2002 when Judge Dodd fell asleep during a corporate fraud trial and a criminal matter involving weapons offences. In 2003 it was reported that Judge Dodd was sleeping and snoring during the evidence of a rape victim.

In 2004 Judge Dodd, now nicknamed Judge Nodd, fell asleep numerous times during a seven month drug smuggling trial. Defence counsel took to passing notes to the court clerk to gain her assistance to wake up the judge. This was a jury trial and several jurors admitted they were taken aback by the judge’s behavior. Judge Dodd sentenced the convicted offenders to 24 years in jail.

On appeal the accused argued that Judge Dodd’s demeanor was prejudicial to them as it signalled the Court’s disinterest in their evidence and their case.

The Court of Appeal agreed, but refused a new trial and merely reduced their sentences.

Later in 2004 Judge Dodd initiated a medical examination for himself that revealed he had sleep apnea and he began treatment that reportedly cured his condition.

But the media attention did not subside and eventually the State Judicial Commission launched an investigation.

As a result of now seven separate complaints a public hearing was scheduled and Judge Dodd also lost his driver’s license. The hearing was averted when Judge Dodd opted to resign, thus terminating the investigation.

Major changes were made to the legislation governing judges in New South Wales including granting power to the State Judicial Commission to compel a judge to undergo a physical or mental examination, even where there has been no complaint.

The story of Judge Dodd eventually faded from view with a last headline “Sweet Dreams as Judge Retires”. After eight years on the bench, Judge Dodd left with a $152,000 annual pension.

He’s probably out surfing on the Gold Coast!

Lawdiva aka Georgialee Lang

Is US Court’s Gay Marriage Ruling a Threat to Democracy?

BarristerToday’s gay marriage decision from the United States Supreme Court has the potential to create an even greater divide between America’s already polarized electorate.

In a 5/4 decision, the Court invented a new civil right under the banner of equal protection and due process of the law pursuant to the Fourteenth Amendment, by ruling that individual States cannot ban same-sex marriage.

The decision is neither unexpected nor surprising, however the chasm between the slim majority and the minority opinions is startling.

Mr. Justice Scalia characterizes the decision as a threat to American democracy and decries a system of government that makes the people subordinate to a committee of nine unelected patrician lawyers, who are strikingly unrepresentative of the people they serve. He notes the Court’s judges all have law degrees from Yale or Harvard, four of the nine are from New York, eight grew up in either east or west coast states, with only one judge from the large expanse between the two coasts, and not a single south-westerner.

He continues his provocative opinion by musing that the majority’s discovery of a new fundamental right in the Fourteenth Amendment has curiously been overlooked by some of the brightest legal minds in America, referring to Oliver Wendell Holmes, Learned Hand, Louis Brandeis, Benjamin Cardozo, and other brilliant jurists of the past.

Chief Justice John Roberts, in a separate dissent, writes that the majority has not just ignored America’s entire history and traditions but actively repudiates it. He laments that the Court’s imposition of its “reasoned judgment”, devoid of legal principles, or as Justice Scalia observes “lacking even a thin veneer of law”, is actually a lost opportunity for the gay and lesbian community who can no longer obtain true acceptance from their neighbours, “just when the winds of change were freshening at their backs”. Here the Chief Justice is acknowledging that only thirteen states now ban same-sex marriage.

Chief Justice Roberts rejects the majority’s view that Americans who did nothing more than uphold their understanding of marriage as between a man and a woman should be criticized for their alleged disparagement and disrespect of gays and lesbians. He describes the Court’s denouncement of citizens who uphold a Biblical view of marriage as a gratuitous assault on their character:

“It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.”

Mr. Justice Alito pursues a similar theme writing that the new law will be used to vilify those unwilling to assent to the new orthodoxy, noting that the majority compares traditional marriage laws to laws that denied equal treatment to African-Americans and women, an analogy that he fears will be exploited by those who wish to stamp out any vestige of dissent.

Justice Alito predicts the majority’s imposition of its views on America facilitates the marginalization of traditional Americans who may fall victim to the harsh treatment once afforded gays and lesbians. He says:

“…some may think that turn-about is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.”

Mr. Justice Clarence Thomas sees the majority decision as a threat to religious liberty, as does the Chief Justice who remarks that the “good and decent people who oppose same-sex marriage as a tenet of faith and their freedom to exercise religion is, unlike the right imagined by the majority, actually spelled out in the Constitution.”

Justice Clarence states that the decision on same-sex marriage should have been left to the political process, as the Constitution requires, and had that happened the religious implications would have been considered. He identifies the potential of a ruinous assault on religious freedom.

The chasm between members of the Court is no more apparent than in Justice Scalia’s mockery of the majority’s finding that the marriage bond creates “other freedoms, such as expression, intimacy, and spirituality”, to which he replies “Really? Whoever thought that intimacy and spirituality (whatever that means) were freedoms?…The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”

While there is much to celebrate in the gay and lesbian community, there is a silent majority who are disappointed, even angry, that their rights under the democratic process have been trampled by five elite lawyers.

Lawdiva aka Georgialee Lang

More Bad Judges

10950859361151CDPMichigan’s District Court Judge Ken Post is at it again. You may remember him as the judge who found junior lawyer, Scott Millard, in contempt for protecting his client’s right not to incriminate himself. Millard became a folk-hero of sorts for standing up to Judge Post, even as the judge directed the court sheriff to remove him from the court and escort him to the cells. Judge Post was later disciplined and suspended from the bench for thirty days.

Judge Post’s latest stunt occurred when Philip Mallery, age 23, failed to appear for his scheduled court hearing on drug and traffic charges, although his lawyer was in attendance.

Judge Post telephoned the young man and left the following message:

“We’re waiting for you because you’re supposed to be here today, you missed a drug test yesterday, and it would appear as though you’re not coming today, so a bench warrant is being issued for your arrest. My strong suggestion is that you, uhhh, when you get this message you keep going because if I find you, it will not be pleasant. Have a good day.”

Mallery’s lawyer, Joshua Blanchard, whose law partner, Scott Millard ended up in jail, has now applied to have Judge Post recuse himself from his client’s case and has reported him to the Judicial Tenure Commission. Blanchard described Judge Post’s telephone call as “threatening” and queried why the jurist would take the action he did without knowing the reason for Mallery’s absence, speculating that his client could have been ill, in a traffic accident, or his wife could have died.

I’m looking forward to hearing Judge Post explain why he thought it appropriate to call an accused, rather than relaying a message through his lawyer, which is the usual practice.

However, Judge Post’s behaviour is trifling compared to the charges against Kentucky Circuit Court Judge Steven Combs, who was suspended last week pending a decision from the Judicial Conduct Commission.

The allegations include:

1. Presiding over a gas and oil case despite his personal financial interest in the company and using information elicited in the case to make personal demands to the company;

2. Making numerous aggressive calls to the local police insisting they lay criminal trespass charges against members of the public who parked in his church’s parking lot;

3. During one of the phone calls to police, he allegedly said the next police officer who pulled him over would get a “bullet to the head.” When confronted with the statement, he allegedly said, “I’m elected by the people and not pieces of trash like you.” He also called the police department “a bunch of thieves”;

4. Calling local officials names such as “coke head, Dumbo Donovan, Fishface Jimmy, and Retarded Reed the little police chief”;

5. Using court letterhead to send personal letters to county officials;

6. Calling a lawyer who appeared before him “a prick and a coward”;and

7. Soliciting donations from lawyers who appeared in his courtroom for a local high school golf team.

My research indicates that American judges fall afoul of judicial ethics rules much more frequently than Canadian judges, a phenomenon probably related to the absence of elected judges in Canada.

In many American states, like Michigan and Kentucky, judges are democratically elected and accountable to voters, however, the election of judges is also subject to the “tyranny of the majority” and is open to corruption and the purchase of votes.

Lawdiva aka Georgialee Lang

No Gender Bias in Family Courts Says Irish Academic

GEO CASUALA key finding in a new report on gender bias in family courts declares there is no indication of gender bias in contested cases about where a child should live.

The May 2015 report authored by Dr Maebh Harding, from the University of Warwick and
Dr Annika Newnham of the University of Reading is based on a document analysis of a retrospective of 197 case files from five county courts in England and Wales over a six month period in 2011. Of the 197 cases, 23 were custody disputes between a parent and another relative, usually a grandparent.

In the “two parent cases”, fathers initiated 70% of the applications, whereas only 30% of the cases started with an application by a mother.

The most common type of court application was for an order to allow contact or access, making up 41% of their sample. Fathers brought 96% of all access applications. The majority of these applications were made in order to initiate or restart contact.

Applications which sought a sole residence order made up 43% of the sample. Similar numbers of applications for sole residence were made by fathers (32) and mothers (30) but their reasons for going to court differed.

Joint custody and joint residence applications amounted to only 7%.

Notably, in 2011 there was no presumption in the British law that the involvement of a non-resident parent would further a child’s welfare. In 2014 this presumption was added to the governing statute, the Children Act 1989.

In my view, the analysis of the data in the report suffers from the absence of real-life experience in the family law trenches. Let me give you some examples:

1. The authors discovered that in 51% of cases the father had been cut off from contact with the child and that in almost half of the parent cases (86 out of 174) mothers had made allegations of domestic violence against fathers. However, in only 45 of the 86 cases was their sufficient evidence of family violence.

The report reads “Court investigations into the truth of domestic violence allegations were rare and took place in only 21 of the 86 cases in which allegations of domestic violence were made.

Where fact-findings were held, few ended in a clear determination on the alleged facts. Instead, the question of domestic violence tended to be reconceptualised as being primarily about reducing the risk to the child and facilitating as much contact as was possible in the circumstances.”

In other words, even unproven domestic violence was used to minimize a father’s role in parenting.


2. The authors found that many of the cases took two years to resolve but expressed little concern about the delay saying:

“Time taken in the court process should not always be viewed as unnecessary delay. Cases need time to build trust between the parties and reach a workable child-centred conclusion ensuring contact was safe.”


3. The authors opine that going to court did not amplify or entrench the conflict between the parties finding that the vast majority of cases were resolved by consent orders. Only 25 of the 174 parent cases ended in a contested final hearing.


Perhaps if academics conferred with family law lawyers when analyzing court data they would gain insight into the dynamics between feuding parents; understand the nuances and strategies employed by parents who seek to discount or eliminate the other parent; understand that children need both parents in their lives; and resist the attraction of the “primary parent” philosophy that is no longer relevant in today’s world.

The report is titled “HOW DO COUNTY COURTS SHARE THE CARE OF CHILDREN BETWEEN PARENTS?” and can be found at http://www.nuffieldfoundation.org.

Lawdiva aka Georgialee Lang

Canadian Judge Faces Scrutiny by Federal Judicial Council

BarristerIt’s been a busy few years for Canada’s Judicial Council, the body that reviews complaints against federally appointed judges in Canada.

While all eyes and ears were focused on the lengthy and salacious Justice Lori Douglas Inquiry, which finally ended with the announcement of her voluntary retirement in November 2014, and the welcomed termination of the “dog and pony show” that the Inquiry became, other members of the Judicial Council have been anything but idle.

In 2012 Quebec’s Chief Justice brought forward a complaint to the Judicial Council with respect to Superior Court Justice Michel Girouard, a 2010 appointment to the Quebec bench. A separate Inquiry of another Quebec judge was commenced in 2014.

With far less media scrutiny than Lori Douglas endured, the allegations against Justice Girouard centre on informants who say the judge was a regular customer of a certain drug dealer in Val d’Or while he was a lawyer.

More startling yet are the allegations that he had gangsters install a marijuana grow operation in his basement and offered legal advice in exchange for cocaine, even when he became a judge!

Wiretap evidence played at the Inquiry revealed conversations between the judge and his alleged drug dealer where the pair discussed when he could pick up certain “videos” and whether there were any good “videos” available that week. Inquiry counsel, Marie Cossette, argued that “videos” was subterfuge for “cocaine”.

Perhaps even more damning is the existence of a surveillance video of the learned jurist recorded two weeks before his appointment to the bench, where he is seen purchasing cocaine at the back of a local video store, from the same drug dealer heard in the wiretaps.

The video, which has not yet been viewed by the Inquiry panel, is said to show a transaction between the judge and Yvon Lamontagne, the store owner, who sold drugs at the back of his store and is said to be a major player in the drug scene in Northern Quebec. The wiretaps and video were collected during a successful drug sting called “Crayfish”.

Judge Girouard denied all the allegations, explaining that Mr. Lamontagne was a client to whom he was giving advice on a tax matter. He said he often visited clients’ businesses to conduct meetings.

The issue before the Inquiry panel last week was the admissibility into evidence of the video. Lawyers for Judge Girouard argued the publication of photos of their client with drug dealers or pedophiles in the course of his law practice would be damaging to his reputation and hurtful to his family. They also suggested the surveillance was unlawful and a violation of his fundamental rights.

Ms. Cossette responded saying that Judge Girouard should have no expectation of privacy when he conducts a meeting in a store with the office door open and a clerk and customers just a few steps away.

While Judge Girouard’s lawyers complained that Ms. Cossette was reaching far beyond her role as independent counsel, a strategy reminiscent of the perpetual criticism of independent counsel(s) in the Lori Douglas Inquiry, Chief Justice of Manitoba, Richard Chartier, who is chairing the Inquiry panel, confirmed his view that Ms. Cossette’s conduct was “very honourable”.

It remains to be seen whether Judge Girouard’s alleged conduct will be similarly ascribed.

Lawdiva aka Georgialee Lang