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

Christmas Parenting Conflicts

GEO CASUAL

Christmas is supposed to be the happiest time of the year, but we know that for some it is a lonely, regretful time, remembering the sorrows of seasons past.

In homes divided by separation and divorce, the areas of conflict arise from the dynamics of struggling to ensure you see your children, and the difficult discussions between former spouses about sharing their children’s holiday time.

When former spouses remarry and introduce new partners into the family, it is not unusual to hear complaints of resentment and  recrimination focused on the new stepmother or stepfather.

Perhaps one of the most annoying irritants is hearing  8-year-old Johnny call his father’s new partner “Mom”.  An unkinder cut is hard to imagine for newly divorced parents.

One parent was so disturbed she asked a judge to intervene to stop her young son from calling her ex-husband’s fiancee “Mom”.  She was also opposed to her ex’s girlfriend having increased input into her son’s life.

In this case the parents shared legal custody but Johnny lived primarily with his father. New Jersey Judge Lawrence Jones found that both parents and father’s fiancee contributed to Johnny’s well-being, but noted that while the fiancee’s opinions were welcome, it was up to Johnny’s biological parents to make decisions for Johnny.

However,  the Judge declared that it was up to Johnny to decide how he wished to refer to his parents and his father’s fiancee, mainly because the young boy was mature enough to decide for himself. The Court said:

“At this challenging point in his growth and development, he certainly does not need his parents, or a stepparent, or the court, hoisting further unnecessary burdens upon his fragile shoulders by micromanaging his words and thoughts, or commanding him how to address his stepparent in order to please his mother or father.”

I’m sure Johnny’s mother thought the decision was unfair to her, but the reality is that it is not about her feelings, it’s about her son’s self-determination and development.

Lawdiva aka Georgialee Lang

 

 

 

 

 

 

 

Judge’s Decision Results in Tragedy

BarristerHave you ever thought about how judges make decisions? Frankly, I rarely think about this as my focus is simply on persuading a judge to see it my way. But learned scholars have studied and researched the psychology of judicial decision-making with interesting results.

The authors of “Blinking on the Bench: How Judges Make Decisions”* say that judges are predominantly intuitive decision makers, a characteristic that unfortunately can lead to flawed decisions. Of course, some intuitive decisions are accurate, but as between those kind of decisions and  the more academically rigorous “deliberation” method,  acting on gut feelings or hunches can be a dangerous way to adjudicate matters of critical importance to participants in the justice system.

A case this week out of Madison, Kentucky highlights the impact of judges’ “getting it right”.

Local prosecutor Chad Lewis was in court in Madison on October 6, 2016 seeking an arrest warrant against Laura Russell’s husband, Anthony Russell, age 51. The couple was divorcing and it was going far from well. Charged in August 2016 with strangulation and domestic battery for allegedly attacking his wife on several occasions. Mr. Russell was out on bond of $500.00 and subject to a restraining order, that he apparently ignored.

This court appearance was scheduled after Ms. Russell advised the police that her husband was continuously stalking her. She was upset, intimidated and frightened.

Judge Michael Hensley presided at the hearing, however, he refused to issue a warrant for Mr. Russell’s arrest and instead issued a summons requiring Mr. Russell to attend court on  October 11, 2016 after the three-day long weekend.

Mr. Russell did not show up at court on October 11 and neither did his estranged wife. They were both dead. Mr. Russell went to Ms. Russell’s home on October 7 and stabbed her multiple times. He then  committed suicide, blowing his head off with a pistol…a tragedy that devastated Judge Hensley.

The judge released a statement to the press expressing his condolences to Ms. Russell’s family, saying he felt “horrible about her death” and understood that his sincere regret would not “bring her back”. He explained that he didn’t believe there was “probable cause” to issue a warrant and said “I made what I thought to be the correct legal decision…obviously I made a decision that had the most tragic result possible”.

Prosecutor Lewis criticized Judge Hensley for failing to accede to his request for a warrant for stalking. Meanwhile, Ms. Russell’s lawyer suggested that it was Mr. Lewis’ fault as he could have asked for a warrant for multiple breaches of the restraining order, instead of seeking a probable cause hearing for a new charge of stalking.

Judge Hensley also announced that he would institute a new procedure in respect of arrest warrants, by ensuring that a hearing be scheduled for the day the warrant request is made.

 Lawdiva aka Georgialee Lang

*Chris Guthrie,  Jeffrey J. Rachlinski & Andrew J. Wistrich

Another Crazy American Judge Story

DSC00507 (2)There will always be debates about what it is like to be a judge. Some say it’s a highly stressful position, while others argue it is a “cushy” power job, with no one looking over your shoulder as you command your courtroom. When a judge directs a lawyer or a litigant to “jump”, they jump, no ifs, ands or buts!

I lean towards the view that a judge’s job is very stressful. They deal with the most important issues in society: where should a child live? how much jail time should a convicted offender receive? and, how much money do innocent victims  of a car accident need to reclaim their lives?

Of course, there is much anecdotal evidence about the stressful nature of the judicial role, often used as a reason to excuse bad behaviour. Or does unprofessional conduct  abound because  some judges begin to believe they are untouchable, simply because they are judges?  A recent case of a “runaway” judge tends to support the “arrogant judge” theory.

Judge Arnette Hubbard, age 81 (yes, still sitting at 81!)is a silver-haired African-American jurist who presides in Chicago. One sunny July morning Judge Hubbard left the court building to smoke a cigarette in Daley Plaza, adjacent to the court facilities. Businessman David Nicosia was nearby using his cell phone and became annoyed at the second-hand smoke wafting in his direction.

Judge Hubbard and Mr. Nicosia, a white man, had an unpleasant exchange that resulted in Mr. Nicosia’s arrest for aggravated battery and a hate crime. Mr. Nicosia was at the law courts that morning to obtain a marriage license. Instead he ended up in jail, cancelled the wedding plans, and awaited his day in court.

His trial last month turned into the ever popular “He said/She said”.  Judge Hubbard testified that when Mr. Nicosia asked her to stop smoking she replied that she wasn’t permitted to smoke indoors. She said that Mr. Nicosia then spat in her face and yelled “Rosa Parks move!”. She cried out to nearby deputy sheriffs and tried to stop Mr. Nicosia from leaving the scene, whereupon she alleged he flung her off and slapped her.

Mr. Nicosia described a different series of events. He testified that after he complained the judge intentionally blew smoke in his face and said she could smoke wherever she liked. He replied “It’s not like you’re the Rosa Parks of smoking”. At that point an angry Judge Hubbard said she had something for him. She opened her mouth and delivered a projectile of tobacco-laced spittle that landed in his mouth, on his glasses, and on his shirt.  He quickly spit out the nasty “goober” which inadvertently landed on Judge Hubbard. He testified that the slap was accidental and occurred when the judge moved toward him to stop him from leaving.

Trial Judge James Obbish acquitted Mr. Nicosia of all charges, saying he believed that Mr. Nicosia would never have faced the felony charges if the alleged victim had not been a judge. He said that Judge Hubbard ought to have moved away from Mr. Nicosia once he complained. He also added that Mr. Nicosia  didn’t deserve a medal as he “didn’t act in a way that a man should act to a lady”.

Clearly the court did not believe Judge Hubbard’s version of the truth and her credibility was also damaged after she testified she had to take 17 months off work  after the “assault” for post-concussion syndrome, although she presented no medical evidence to support her claim.

Judge Hubbard has a civil lawsuit against Mr. Nicosia pending. As for me,  I think she should retire from the bench, drop her civil suit,  and pay back the 17-month salary she milked  from the citizens of Chicago.

Lawdiva aka Georgialee Lang

 

 

 

Lawyer Jailed for Refusing to Remove “Black Lives Matter” Pin

GeorgiaLeeLang100Ohio lawyer, Andrea Burton, was handcuffed and led out of a courtroom by an attending sheriff when she refused to comply with Judge Robert Milich’s  multiple requests that she remove her Black Lives Matter pin.  After her refusal, the Judge and Ms. Burton  adjourned to his chambers to discuss the impasse created by Ms. Burton’s position. She argued that the Court’s ruling was an unjustified infringement on her First Amendment right of free speech.

Judge Robert Milich reminded Ms. Burton  that based on Supreme Court case law, he had authority to prohibit any symbolic political expression in his courtroom. He later spoke to the media declaring, “There’s a difference between a flag, a pin from your church or the Eagles and having a pin that’s on a political issue”.

Judge Milich emphasized that his personal opinions had nothing to do with his decision.

“A judge doesn’t support either side, a judge is objective and tries to make sure everyone has an opportunity to have a fair hearing, and it was a situation where it was just in violation of the law.”

Burton was sentenced to five days in jail for contempt of court, although she was later released and her jail sentence “stayed” pending her appeal of the Judge’s contempt finding and  jail sentence.

Upon her release she told the local media that she believed that her First Amendment right overruled the Supreme Court law and Judge Milich’s discretion, and that she ignored the judge’s instructions because she didn’t want to remain neutral to injustice.  “To remain neutral becomes an accomplice to oppression, ” she remarked. She also said:

“It’s an act of civil disobedience, I understand that. I’m not anti-police, I work with law enforcement and I hold them in the highest regard, and just to say for the record I do believe all lives matter. But at this point they don’t all matter equally, and that’s the problem in the justice system.”

Not surprisingly, the National Association for the Advancement of Colored People announced they would be following Burton’s case and believe her civil rights may have been violated.

My view is that judges have full authority and discretion to determine what is said and what is worn in their courtrooms. They  have jurisdiction to make findings of contempt for behaviour that does not comport with the required decorum and solemnity of our courts of law.

Lawdiva aka Georgialee Lang

 

 

 

 

 

Tough Judge Fines Lawyer $4,000 for Being 8 Minutes Late

GeorgiaLeeLang025A three-day murder trial in Arkansas was aborted this week when defence counsel , Jim Morris, showed up eight minutes late, and failed to telephone the court to advise he was on his way.

Judge Bynum Gibson had requested that counsel appear at 8:30 am to deal with several preliminary motions. The trial was set to commence at 9 am with the selection of a jury. At 9:08 when  Mr. Morris arrived, the potential jury members and witnesses, numbering 60 to 70, had been already been dismissed by the judge.

Counsel Morris told the Court he had to drop his daughter off at camp in Little Rock and was unable to call the Court due to bad cell phone reception. Judge Gibson,  who was also an AT&T subscriber, didn’t believe him.

Judge Gibson said: “I would have given you some lee-way, if you had called,” adding that 60-70 jurors had to be paid, and multiple witnesses had to be reimbursed.  “I’ve had defendants not show up, but never had attorneys show up after 9 o’clock. It’s killed 3 days of court time.”

Judge Gibson levied a fine of $4,000 against Mr. Morris, despite his protestations that he couldn’t pay such a large fine. Judge Gibson told him that initially he had considered jailing him, but decided a fine would suffice. Lawyer Morris replied “I merely made a bad decision, trying to be a good father.”

Demarcus Veasey’s first-degree murder trial was adjourned to July 2016. While Judge Gibson’s treatment of Mr. Morris was harsh, what is most notable is that accused Mr. Veasey, who allegedly committed the crime in January 2016 was set for trial only 6 months later, and the trial was set for a mere 3 days. I’d say the State of Arkansas knows how to get down to business, wouldn’t you?

Lawdiva aka Georgialee Lang

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Judge Threatened With Removal From the Bench for Her Religious Beliefs

GeorgiaLeeLang057Pinedale, Wyoming is a town with a population of just over 2,000 people. It is considered a gateway to the more famous Jackson Hole and sits surrounded by over 1,300 lakes. In such a small town everyone knows everyone else, and their local judge is beloved by all.

Her name is Ruth Neely and her career is in jeopardy after she gave an interview to a local newspaper admitting that her religious beliefs would prevent her from officiating at a same-sex marriage, an interview she gave shortly after Wyoming legalized same-sex marriage in 2014.

Mind you, Judge Neely is a municipal judge and circuit court magistrate whose cases involve traffic offences, bylaw breaches, and the like. Her judicial role does not include performing marriages of any kind, and she has never been asked to perform a same-sex marriage.

Nonetheless, the Wyoming Commission on Judicial Conduct and Ethics is seeking to remove her from her position and wants her to pay $40,000 in fines as well, because they allege her media comments manifest a bias and make her unfit to be a judge.

The Casper Star Tribune reported that the Wyoming Commission told Judge Neely  they would drop their prosecution of her if she would resign, admit wrongdoing, and never again seek a judicial position in Wyoming. Later the Commission suggested she could stay on, but only if she publicly apologized, and agreed to perform same-sex marriages. Judge Neely declined their offers and is now fighting to maintain her religious convictions.

Judge Neely’s dilemma has engendered a groundswell of support, including from members of the local LGBT community.  An oft-repeated sentiment is that “it would be obscene and offensive to discipline Judge Neely for her religious beliefs about marriage.”

The Commission’s persecution of Judge Neely is particularly egregious as they admit she has served the community well for twenty years,  and is a well-recognized and well-respected judge.

The Becket Fund for Religious Liberty, a non-profit advocacy group based in Washington, D. C. have come to Judge Neely’s aid. Their mission is to “protect the free expression of all religious traditions. Their clients have included Buddhists, Christians, Hindus, Jews, Muslims, Sikhs, and Zoroastrians.

Lawyers from the Becket Fund filed a brief on the judge’s behalf which declared “This would be the first time in the country that a judge was removed from office because of her religious beliefs about marriage.”

It seems wrongheaded to oust a judge for her religious views when those views do not interfere with her judicial duties. There is something very strange going on here.

Lawdiva aka Georgialee Lang