FRAUD ON THE COURT
David R. Hague
Unbeknownst to many, federal courts have the power under the Federal Rules of Civil Procedure to set aside judgments entered years earlier that were obtained by “fraud on the court.” Fraud on the court, however, can take many forms and courts and commentators agree that it is a nebulous concept. The power to set aside a judgment requires courts to strike a balance between the principles of justice and finality. A majority of courts require a showing, by clear and convincing evidence, of intentional fraudulent conduct specifically directed at the court itself. This standard is flawed. And courts that have adopted it are abdicating their solemn responsibility as the gatekeeper to justice because innocent victims seeking to set aside judgments obtained by abusive discovery find themselves as a square-peg trying to fit into a round hole. The remedial and equitable nature of the fraud-on-the-court doctrine and the great public policy that it embodies militates against making that burden an impossible hurdle for victims of abusive discovery.
This Article suggests that courts depart from the heightened standard used to set aside judgments, particularly judgments obtained by abusive discovery. Specifically, this Article advances a four-step process to resolve the ultimate inquiry: whether the abusive conduct caused the court not to perform in the usual manner its impartial task of adjudging cases. Under this standard, courts will more readily find that abusive discovery that undermines the integrity of the judi- cial process or influences the decision of the court constitutes a fraud on the court.
TABLE OF CONTENTS
I. ABUSIVE DISCOVERY PRACTICE ..........................................................
A. Common Discovery Abuse ........................................................... 711
B. The Vulnerable Victims ................................................................ 717 1. The Pro Se Litigant................................................................ 717 2. The Attorney-Abandoned Litigant ......................................... 722
II. FRAUD ON THE COURT ......................................................................... 725
III. ABUSIVE DISCOVERY AS FRAUD ON THE COURT AND
REEVALUATING THE STANDARD ......................................................... 730
A. The Offender and His Duty .......................................................... 730
* Assistant Professor of Law, South Texas College of Law. I would like to thank my re- search assistant, Laura Thetford, for her help with this article.
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Evaluation of the Conduct ........................................................... 732 Consideration of the Victim’s Status (The Equitable Component).................................................................................. 735 Consideration of the Relief Being Sought.................................... 737 Illustration of the Four-Part Test ................................................ 739
1. The Offending Party and His Duty ........................................ 740
2. The Conduct........................................................................... 740
3. The Victim .............................................................................. 741
4. The Relief ............................................................................... 741
CONCLUSION ................................................................................................... 742 INTRODUCTION
There is an old adage that nice guys finish last. It is well documented that in litigation, this maxim oftentimes rings true. General William Tecumesh Sherman stated, “War is Hell!”1 Litigation, some think, is like war. Make your opponent’s life miserable, put them through hell, and you will eventually defeat your adversary. Why is hardball litigation so common? Is it because it works and frequently goes unpunished? As one scholar noted, “[t]hough perceptions differ, there seems to be some consensus that adversary excess is frequent, of- ten not by any standard justifiable as zealous representation, and that many lawyers will indeed cross ethical lines when they think they can get away with it, which, because of the weakness of monitoring agents, they usually do.”2
When this abusive practice—sometimes referred to by lawyers and judges as “Rambo-Lawyering”3—occurs during litigation, parties are equipped with several tools under the rules of civil procedure to thwart improper behavior and move the proceeding into civil territory. However, when attorney misconduct or abusive discovery tactics result in favorable judgments to the offending par- ties, the available remedies under the rules diminish substantially, and the party
1 William Tecumseh Sherman, WIKIQUOTE, http://en.wikiquote.org/wiki/William_Tecum seh_Sherman (last visited Jan. 5, 2016).
2 Robert W. Gordon, The Ethical Worlds of Large-Firm Litigators: Preliminary Observa- tions, 67 FORDHAM L. REV. 709, 736 (1998).
The term “Rambo Lawyering” has been discussed in several legal articles. See, e.g., Jean
M. Cary, Rambo Depositions: Controlling an Ethical Cancer in Civil Litigation, 25 HOFSTRA L. REV. 561 (1996); Gideon Kanner, Welcome Home Rambo: High-Minded Ethics and Low-Down Tactics in the Courts, 25 LOY. L.A. L. REV. 81 (1991); Robert N. Sayler, Rambo Litigation: Why Hardball Tactics Don’t Work, A.B.A. J., Mar. 1, 1988, at 79. More- over, the District Court of Denver includes a “Rambo Lawyering” instruction to attorneys in
case management orders. The instruction reads as follows:
This is a CIVIL
. “Rambo Lawyering” will not be tolerated. Counsel will treat jurors,
parties, witnesses, me, my staff and each other with professionalism, courtesy and respect at all
times. This applies not only to the actual trial, but to all aspects of the case, including discovery
and motions practice, and includes what is written as well as what is said.
Rambo Lawyering, WEINBERGER LAW OFFICES,
(last visited Jan. 5, 2016).
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against whom the judgment was entered is now faced with a challenging legal hurdle. A rancher from Nevada knows this story all too well.
In 2007, Judith Adams sued Susan Fallini for the death of her son after he struck one of Ms. Fallini’s cows that was on a well-known highway in Neva- da.4 That stretch of highway is designated as “open range.”5 Nevada law pro- tects open-range ranchers from liability if vehicles strike their cattle.6 Thus, Ms. Fallini should have prevailed in the lawsuit because of this statutory defense, but that did not happen.7 Instead, Ms. Fallini’s lawyer abandoned her during the case and, among other things, failed to respond to plaintiff’s requests for ad- mission, which asked Ms. Fallini to admit that the accident did not occur on open range, even though it did, and even though plaintiff and her attorney knew it did.8 Because she failed to answer the request for admission, she was deemed to have admitted that the accident did not occur on open range, which obviated her complete defense under Nevada law.9 Eventually, Ms. Fallini’s “admission” led to a partial summary judgment in plaintiff’s favor and an award of damages in excess of $2.7 million.10
Was the type of conduct in the Fallini case just clever lawyering and profi- cient advocacy? Or did the attorney act uncivilly or unethically in obtaining the judgment and, consequently, violate rules of civil procedure and professional conduct? More importantly, if the attorney knew the accident occurred on open range and knew that the open-range defense provided a complete defense to Fallini as a matter of law, did that attorney perpetrate a “fraud on the court”11 when he obtained summary judgment based on Fallini’s deemed admission of a well-known false fact? The answer to this last question is puzzling.
While fraud on the court has been recognized for centuries as a basis for setting aside a final judgment, it has been used for several other purposes under the rules of civil procedure. Generally, fraud on the court is a fraud “directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents . . . . It is thus fraud where . . . the impartial functions of the court have been directly corrupted.”12 Interestingly, the term “fraud on the court” is
4 Mike Blasky, Conflicted Judge’s Decision Looms in Rancher Lawsuit, L.V. REV.-J., July 28, 2014, at B001; see also Complaint at 2–4, Estate of Adams v. Fallini, No. CV24539 (Nev. 5th Dist. Ct. Jan. 31, 2007).
5 Blasky, supra note 4.
6 Id.; see also NEV. REV. STAT. ANN. § 568.360(1) (West 2015) (providing that those who
own domestic animals do not have a duty to keep those animals off highways located on “open range” and are not liable for any damage or injury resulting from a collision between a motor vehicle and an animal on open range highways).
7 Blasky, supra note 4.
11 FED. R. CIV. P. 60(d)(3).
12 Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1266 (10th Cir. 1995) (emphasis added) (citation omitted).
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only mentioned in Rule 60(d)(3) of the Federal Rules of Civil Procedure, yet courts have also used this doctrine to order dismissal or default under other rules where a litigant has stooped to the level of fraud on the court.13
Generally, if a party wants to utilize the fraud-on-the-court doctrine as a remedy under the rules of civil procedure, it must prove, by clear and convinc- ing evidence, intentional fraudulent conduct specifically directed at the court itself.14 Recent case law incorrectly suggests that this high standard for proving fraud on the court—which several courts agree is reserved only for the most egregious misconduct, such as a bribery of a judge or jury members—lacks any flexibility or equitable components.15 Indeed, this rigid approach seems to dis- regard entirely the victim’s status. It also creates a nearly impossible hurdle for innocent victims seeking to set aside judgments obtained by attorney miscon- duct. This flawed approach—particularly as courts apply the fraud-on-the-court doctrine to abusive discovery practices resulting in favorable judgments to the offending party—is inconsistent with the purpose of Rule 60(d)(3).
This Article suggests that courts depart from the heightened standard used to set aside judgments secured by a fraud on the court. Specifically, this Article advances a four-step process and recommends courts focus on one specific question when evaluating whether conduct rises to the level of fraud on the court: whether the conduct complained of caused the court not to perform in the usual manner in its impartial task of adjudging cases.
Part I of this Article discusses the various forms of abusive discovery that may lead to improper judgments, as well as some of the relevant rules of pro- fessional conduct and civil procedure. Part I also discusses the classes of vic- tims that are the most greatly impacted by abusive discovery. Part II introduces the concept of “fraud on the court” and discusses its meaning, history, and use in combating fraudulent litigation practice. Finally, Part III introduces the four- step process, which requires an examination of the following: (1) the offending party and his duties, (2) the conduct at issue and its effect on the judicial ma-
13 See, e.g., Combs v. Rockwell Int’l Corp., 927 F.2d 486, 488 (9th Cir. 1991) (relying on Rule 11 where counsel made thirty-six changes on a deposition errata sheet after the client advised that the transcript was accurate and the testimony was correct); Brockton Sav. Bank v. Peat, Marwick, Mitchell & Co., 771 F.2d 5, 11–12 (1st Cir. 1985) (affirming district court’s entry of default judgment under court’s inherent powers in response to defendant’s abusive litigation practices); Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983) (“[C]ourts have inherent power to dismiss an action when a party has willfully de- ceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice.”); Eppes v. Snowden, 656 F. Supp. 1267, 1279 (E.D. Ky. 1986) (finding that where fraud is committed upon the court, the court’s power to dismiss is inherent “to protect the integrity of its proceedings”).
13 C.B.H. Resources, Inc. v. Mars Forging Co., 98 F.R.D. 564, 569 (W.D. Pa. 1983) (dis- missing under Fed. R. Civ. P. 41(b) where party’s fraudulent scheme, including use of a bo- gus subpoena, was “totally at odds with the . . . notions of fairness central to our system of litigation”).
14 See, e.g., Herring v. United States, 424 F.3d 384, 386–87 (3d Cir. 2005).
15 See, e.g., Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978).
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chinery, (3) the victim’s status during the underlying litigation—i.e., whether the harmed party was in a position to recognize and combat the fraud at issue prejudgment—and (4) the relief sought. Part III also utilizes the four-step pro- cess to demonstrate that advancing falsehoods during the discovery process is a form of fraud on the court and that courts have equitable power to entertain a party’s action that seeks to set aside a judgment based upon fraud during the discovery process.
I. ABUSIVE DISCOVERY PRACTICE
A. Common Discovery Abuse
In a 2008 survey conducted by the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the Ameri- can Legal System, 45 percent of those surveyed indicated they believed discov- ery is abused in “almost every case.”16 And a recent law review article led with this statement: “[o]ur discovery system is broken.”17 Unfortunately, while the system may be “broken” for some, it oftentimes works for others as it allows them to gain a tactical advantage over their opponents.
Abusive discovery includes, among other things, expensive and time- consuming “inundation . . . with tons of motions, interrogatories, document re- quests, deposition notices and other pre-trial disputes.”18 For example, in Adelman v. Brady, the Pennsylvania district court held that an interrogatory re- quest in a Title VII discrimination case was “extremely burdensome” where it required the IRS to examine personnel files for records of reprimand with no limitations, such as a date range or employed staff versus unemployed staff.19 The court found that this would “require the IRS to review thousands of files.”20 Accordingly, the request was determined to be unduly burdensome and an abuse of discovery procedures.21
Discovery abuse also includes trickery,22 harassment,23 threats,24 and inter- ference with depositions.25 In Prize Energy Resources, L.P. v. Cliff Hoskins,
16 Gordon W. Netzorg & Tobin D. Kern, Proportional Discovery: Making It the Norm, Ra- ther than the Exception, 87 DENV. U. L. REV. 513, 515 (2010) (quoting AM. COLL. OF TRIAL LAWYERS TASK FORCE ON DISCOVERY & INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., INTERIM REPORT & 2008 LITIGATION SURVEY OF THE FELLOWS OF THE AMERICAN COLLEGE OF TRIAL LAWYERS, B-1 to B-2 (2008)).
17 Netzorg & Kern, supra note 16, at 513.
18 Ronald L. Hicks, Jr., Strategies and Tips for Dealing with Dirty Litigation Tactics by Op-
posing Counsel, EMP. & LAB. L. 153, 159 (May 2013).
19 Adelman v. Brady, No. 89-4714, 1990 WL 39147, at *2 (E.D. Pa. Mar. 28, 1990).
21 See id.
22 Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 573 (Tex. App. 2011).
23 Id.; Adelman, 1990 WL 39147, at *2.
24 Prize Energy Res., 345 S.W.3d at 573; Florida Bar v. Ratiner, 46 So.3d 35, 37 (Fla. 2010)
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Inc., an attorney engaged in trickery when he “secur[ed] documents under false pretenses” during discovery.26 The attorney used a “false letterhead” to contact potential witnesses regarding a case and purported to be a “businessman” for an oil and gas company.27
In addition to his trickery, the same attorney also engaged in harassment to obtain discovery information.28 For example, he contacted the opposing party and “continually badgered him to produce documents that had already been provided,” even after the party obtained counsel.29 Additionally, he threatened the opposing party with “criminal penalties” if the party failed to comply.30
Attorneys frequently adopt similar behavior to interfere with depositions and thwart truth telling or disclosure of facts. In re Fletcher is illustrative.31 In Fletcher, an attorney threatened a police-officer witness with civil liability dur- ing his deposition as a means of intimidation by telling the officer that he had been added to an amended complaint alleging a Bivens action against the of- ficer.32
Aside from improper and unethical threats, other parties engage in Rambo- Litigation tactics to deter depositions.33 In Van Pilsum v. Iowa State University of Science and Technology, the court found that an attorney’s conduct was sanctionable when he “monopolize[d] 20% of his client’s deposition.”34 There, the attorney interrupted and objected to opposing counsel’s questioning so of- ten that between the “167 page deposition . . . only four segments [exist] where five or more pages occur without an interruption.”35 He also groundlessly at- tacked opposing counsel for his “ethics, litigation experience, and honesty.”36 For this behavior, the attorney was sanctioned and a protective order was is- sued.37
While the above clearly demonstrates abusive discovery tactics and mis- conduct, the instances likely did not rise to fraud on the court. Throw in dis- honest behavior by an officer of the court, however, and a strong argument be- gins to unfold that a fraud on the court may be in the works. Indeed, the most
25 In re Fletcher, 424 F.3d 783, 785 (8th Cir. 2005); Van Pilsum v. Iowa State Univ. of Sci. and Tech., 152 F.R.D. 179, 180–81 (S.D. Iowa 1993) (order on motion to compel); Hall v. Clifton Precision, 150 F.R.D. 525, 526 (E.D. Pa. 1993).
26 Prize Energy Res., 345 S.W.3d at 577.
27 Id. at 573.
31 See generally 424 F.3d 783 (8th Cir. 2005).
32 Id. at 790.
33 See, e.g., Van Pilsum v. Iowa State Univ. of Sci. and Tech., 152 F.R.D. 179, 181 (S.D.
Iowa 1993) (order on motion to compel).
35 Id. at 180.
37 Id. at 181.
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harmful form of discovery abuse is likely in the form of attorney deceit. No one can dispute “the discovery system is designed to facilitate truth-finding.”38 Yet, deception during discovery is all too common. As one scholar noted, “one rea- son for [attorney misconduct] is the tension inherent in the discovery pro- cess.”39 Absent information protected by the attorney-client privilege or work- product doctrine, the rules of civil procedure require full disclosure during dis- covery; yet providing an opposing party with information that might harm the client’s case seems to conflict with zealous advocacy.40 This quandary appears to be a true Catch-22 from which there is no escape. Thus, when these mutually conflicting situations arise, “the natural tendency for many lawyers is to resist the disclosure of client information”41 or consciously deceive the opposing par- ty in order to gain a tactical advantage.
In In re Shannon,42 for example, a lawyer—the subject of the complaint filed by the State Bar of Arizona—materially altered some of his client’s handwritten answers to interrogatories without providing a copy of the altered interrogatories to his client.43 After the client terminated the lawyer—but while the lawyer was still acting as the attorney of record—he submitted the altered interrogatories, along with the verification to the court for support of a motion for summary judgment.44 Fortunately, the lawyer’s motion was denied,45 and the court did not have to discuss whether the lawyer committed fraud upon the court. The opinion arose out of disciplinary proceedings, so the focus was whether the attorney violated certain rules of conduct and ethics, not whether a fraud on the court occurred. Further, despite the altered interrogatories submit- ted to the court, no judgment was ever obtained, and therefore, the parties were not seeking to set aside any judgment.46 If, however, a judgment was obtained in favor of the lawyer’s client based on the doctored answers to the interrogato- ries, would this be sufficient to set aside the judgment for fraud on the court pursuant to Rule 60(d)(3)? The answer is unclear.
In another similar case, In re Griffith,47 an attorney was disciplined for fail- ing to make critical disclosures during discovery and trial concerning his cli- ent’s medical records and treatment.48 In that case, the lawyer represented the estate of Morris Pina, Jr. in a lawsuit against the City of New Bedford for po-
38 W. Bradley Wendel, Rediscovering Discovery Ethics, 79 MARQ. L. REV. 895, 895 (1996). 39 Alex B. Long, Attorney Deceit Statutes: Promoting Professionalism Through Criminal Prosecutions and Treble Damages, 44 U.C. DAVIS L. REV. 413, 423 (2010).
42 See generally 876 P.2d 548 (Ariz. 1994), modified, 890 P.2d 602 (Ariz. 1994).
43 Id. at 552.
44 Id. at 556.
46 Id. at 577.
47 800 N.E.2d 259 (Mass. 2003).
48 Id. at 259.
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lice misconduct.49 New Bedford police officers arrested Pina and, while in cus- tody, he died.50 Before commencing the trial, however, the lawyer for the estate learned that Pina was being treated for medical problems and had tested posi- tive for human immunodeficiency virus (HIV).51 And when specifically asked through interrogatories whether Pina had ever been treated or admitted to a hospital prior to the alleged incident, the estate responded that it had no knowledge of any treatment or admissions.52 These responses were false. The estate was also served with a request for documents, including a request to pro- duce all medical records with any doctor or hospital rendering treatment on be- half of Pina for a period of five years prior to Pina’s death.53 The lawyer never produced the documents he had in his possession that would have been respon- sive to this request.54 Furthermore, the attorney retained an expert economist to testify on damages arising from Pina’s alleged wrongful death.55 However, the lawyer never told the expert about the HIV.56 Accordingly, the expert calculat- ed the decedent’s total loss of pleasure of life exceeded two million dollars.57 At trial, the estate was awarded damages in the amount of $435,000.58
But, during trial the defendant learned of the HIV and opposing counsel’s cal- culated efforts to conceal this material information.59 Following trial, the par- ties settled for $555,000 and defense counsel sought sanctions against the law- yer, alleging that he had withheld this critical information during discovery and trial.60 After a hearing, the judge entered an order in which he found that the lawyer had “engaged in a pattern of activity to hide [Pina’s HIV status] from the defendants and initially . . . from the court, and had engaged in deliberate misconduct in connection with [plaintiff’s] responses to the defendants’ inter- rogatories.”61 Again, the court was not forced to analyze Rule 60(d)(3) because the attorneys uncovered the deceit before a judgment was rendered. However, had plaintiff prevailed at trial, would the defendant have a case to set aside the judgment for fraud upon the court? Did the plaintiff intentionally aim the false responses directly at the court? Could the failure disclose relevant information cause the court not to perform in the usual manner its impartial task of adjudg- ing cases? Or was this just ordinary fraud between the parties?
at 260. at 261.
at 260, 262.
at 262 (internal quotation marks omitted).
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In another case, In re Estrada,62 the lawyer—who was representing a pharmacy in a personal injury action resulting from a pharmacist accidently filling a child’s prescription with methadone—misled the court by falsely deny- ing the plaintiff’s request for admission of fact.63 The lawyer’s indiscretion was not just a minor oversight, but rather a critical omission that could make or break the plaintiff’s case against the pharmacy.64 Indeed, the case resulted in a mistrial after it became apparent that a prescription introduced into evidence, intended to prove that the pharmacy could account for all its dispensed metha- done, was a forgery.65 Fraud on the court?
Unfortunately, the foregoing represents just a small number of cases where deceit and fraud are present. One would hope that the majority of attorneys un- derstand and acknowledge that zealous representation—even aggressive repre- sentation—can always be accomplished through playing by the rules. Indeed, despite the tension of litigation, lawyers are always responsible for maintaining the ethical standards of the profession. These standards and ethical obligations are governed by a combination of sources,66 which include the Federal Rules of Civil Procedure, state rules, and laws governing attorney conduct.67 Violating or otherwise ignoring these discovery-based rules have broad implications. As one court noted,
A lawyer who seeks excessive discovery given what is at stake in the litigation, or who makes boilerplate objections to discovery requests without particulariz- ing their basis, or who is evasive or incomplete in responding to discovery, or pursues discovery in order to make the cost for his or her adversary so great that the case settles to avoid the transaction costs, or who delays the completion of discovery to prolong the litigation in order to achieve a tactical advantage, or who engages in any of the myriad forms of discovery abuse that are so com- monplace is . . . hindering the adjudication process, and . . . violating his or her duty of loyalty to the “procedures and institutions” the adversary system is in- tended to serve.68
Notwithstanding the procedural and ethical components of these rules, there will always be lawyers and parties that simply disregard or sidestep the rules to gain an advantage. And it does not matter whether the rule falls within a “gray area” of law or is replete with obvious warnings and penalties designed to deter the offending party from abusive practice.
Consider, for example, Rule 26(g) of the Federal Rules of Civil Procedure. This rule—“[o]ne of the most important, but apparently least understood or fol-
62 143 P.3d 731 (N.M. 2006).
63 Id. at 735.
66 See Debra Lyn Bassett, E-Pitfalls: Ethics and E-Discovery, 36 N. KY. L. REV. 449, 450
(2009). 67 Id.
68 Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 362 (D. Md. 2008) (citation omitted).
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lowed, of the discovery rules”69—clearly and expressly requires that “every discovery request, response, or objection be signed by at least one attorney of record, . . . or by the [client], if unrepresented.”70 The signature “certifies that to the best of the person’s knowledge, information, and belief formed after a rea- sonable inquiry,” the discovery is complete and correct, and that the discovery request, response, or objection is
(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.71
If a lawyer or party makes the certification required by Rule 26(g) that violates the rule, the court “must” impose an appropriate sanction, which may include an order to pay reasonable expenses and attorney’s fees caused by the viola- tion.72 But do fraudulent responses to written discovery, for example, expose a party to default or dismissal for committing fraud on the court?
Rule 26 is clear on its face and in its purpose: deter abusive discovery and sanction offending parties for misconduct in discovery. One would think that the transparencies of the rule and the obvious consequences for compliance would have a strong deterrent effect, yet that is not always the case. In addition to Rule 26, other remedies exist to prevent abusive discovery, including sanc-
69 Id. at 357.
70 FED. R. CIV. P. 26(g).
72 Id. The Advisory Committee’s Notes to Rule 26(g) provide further guidance:
Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37. In addition, Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. The subdivision provides a deterrent to both excessive discovery and evasion by imposing a certifica- tion requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection. . . .
If primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse. With this in mind, Rule 26(g), which paral- lels the amendments to Rule 11, requires an attorney or unrepresented party to sign each discov- ery request, response, or objection. . . .
Although the certification duty requires the lawyer to pause and consider the reasonableness of his request, response, or objection, it is not meant to discourage or restrict necessary and legiti- mate discovery. The rule simply requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection.
The duty to make a “reasonable inquiry” is satisfied if the investigation undertaken by the at- torney and the conclusions drawn therefrom are reasonable under the circumstances. It is an ob- jective standard similar to the one imposed by Rule 11.
FED. R. CIV. P. 26(g) advisory committee’s notes to the 1983 amendments (emphasis added) (citations omitted).
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tions,73 discovery statutes,74 and misconduct-reporting boards.75 These rules and remedies share a few common shortfalls. First, they are written and used to deter abusive conduct during the litigation. However, these rules have little utility post-judgment (i.e., if abusive discovery leads to an improper judgment, these rules have minimal value or impact). Second, while these rules may com- bat abuse that otherwise might lead to improper judgments, the rules are plainly more effective in the hands of competent attorneys who understand how they operate and how they can potentially deter attorney misconduct. Yet, when vic- tims of abusive discovery are representing themselves pro se, or have been abandoned by counsel, the rules serve a very limited function, if any, in these victims’ hands.
B. The Vulnerable Victims
Abusive discovery practice comes in all shapes and sizes. From the multi- billion-dollar case with hundreds of defendants to the ten-thousand dollar breach of contract case, one is likely to find attorneys engaging in unsound liti- gation tactics. Any party on the receiving end of this abuse is a victim and has standing to seek redress from the court. However, abusive discovery’s impact seems to be far greater for two classes of victims: the pro se litigant and the at- torney-abandoned litigant. Should these victims receive special treatment when faced with judgments obtained by fraud? Is their status relevant to the court’s analysis under Rule 60(d)(3)—i.e., should the courts be more flexible and will- ing to set aside judgments in cases where the victim was not adequately repre- sented by counsel when the fraud occurred?
1. The Pro Se Litigant
The saying goes, “one who is his own lawyer has a fool for a client.”76 In Powell v. Alabama,77 the Supreme Court wrote,
Even the intelligent and educated layman has small and sometimes no skill in the science of law. . . . He lacks both the skill and knowledge adequately to pre- pare his defense, even though he have a perfect one. He requires the guiding
73 See, e.g., In re Lucas, 789 N.W.2d 73, 78 (N.D. 2010) (suspending an attorney for mis- conduct). Sanctions can also include paying opposing party’s attorney’s fees.
74 See, e.g., FED. R. CIV. P. 26(b)(2)(C) (providing that a court “must limit the frequency or extent of discovery”); FED. R. CIV. P. 33(a)(1) (providing that “[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written inter- rogatories”); FED. R. CIV. P. 37(a)(1) (allowing a party to compel discovery); FED. R. CIV. P. 45(d)(3)(A) (authorizing a district court to quash a subpoena if it subjects a person, including a non-party, to an undue burden, fails to allow for a reasonable time for compliance, or re- quires disclosure of confidential information).
75 Outback Steakhouse of Florida., Inc. v. Markley, 856 N.E.2d 65, 85 (Ind. 2006) (disci- plining by ethics committee for false statements); People v. Scruggs, 52 P.3d 237, 241 (Colo. 2002) (holding that disbarment was an appropriate remedy for abuse).
76 Faretta v. California, 422 U.S. 806, 852 (1975) (Blackmun, J., dissenting).
77 Powell v. Alabama, 287 U.S. 45 (1932).
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hand of counsel at every step in the proceeding against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.78
So why would anyone choose to appear pro se? The likely response is that they have no choice. They are victims of a legal market failure. On the demand side, most Americans struggle to find a lawyer to provide them with legal ad- vice. On the supply side, law school graduates and other lawyers are either un- employed or underemployed.79 Chief Justice Warren Burger predicted thirty- five years ago that America was turning into “a society overrun by hordes of lawyers, hungry as locusts.”80 But what are these lawyers craving? Pro bono work? Serving the underprivileged? Not likely. Lawyers, generally, provide for the legal needs of those individuals and businesses that can deliver a secure re- tainer and pay a considerable amount of money. However, there are only so many low-risk, high-paying clients around. As a result, scores of the American population are forced to represent themselves because lawyers are either not willing to take on the risk of not being paid or not willing to devote a signifi- cant amount of time to serving the underprivileged.
This “pro se” problem was recently highlighted in states where foreclo- sures require a judge’s approval. “[H]omeowners in default have traditionally surrendered their homes without ever coming to court to defend themselves.”81 That inaction, however, has begun to recede.82 Indeed, “[w]hile many foreclo- sures are still unopposed, courts are seeing a sharp rise in cases where defend- ants show up representing themselves.”83 Some courts “welcome the influx of parties defending themselves.”84 Louis McDonald, the chief judge for New Mexico’s Thirteenth Judicial District, acknowledged that “[s]ome of [the pro se defendants] have fairly legitimate defenses.”85 But the law grows more com- plex as cases progress through litigation, and several of the pro se defendants are in over their heads and unable to combat abusive practice.86 These parties are susceptible to the problems highlighted above. “Admit you signed the loan documents.” “Admit you are in default.” “Admit we hold the deed of trust against your home and we are the entitled beneficiaries.” If true, these requests to admit, alone, could establish a lender’s prima facie foreclosure case. But what if the plaintiff submitting these requests was not the beneficiary? What if they were not in possession of the promissory note and the deed of trust? That
78 Id. at 69.
79 Michael S. Hooker & Guy P. McConnell, Too Many Lawyers—Is It Really a Problem?,
FED. LAW., Sept. 2014, at 62, 63–64.
80 Warren E. Burger, Our Vicious Legal Spiral, 16 JUDGES’ J. 22, 49 (1977).
81 David Streitfeld, For the Foreclosed, Themselves, N.Y. TIMES, Feb. 3, 2011, at B1.
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alone would be sufficient to prevent the lender from foreclosing. If the requests went unanswered, they would be deemed admitted.87 By asking the homeown- ers to admit known falsehoods and then injecting those falsehoods into the court system to support a motion for summary judgment, would the plaintiff seeking to foreclose be committing fraud on the court?
New York has experienced similar issues. Before 2008, “about 90 percent of foreclosure defendants never appeared before a judge.”88 However, with new mandatory settlement laws in place, “more than three-quarters of defendants now show up to court, about 32,000 in the first [ten months of 2010].”89 How- ever, only about 12,000 had a lawyer.90 The other 20,000 were in charge of their own fate. “We’re getting the people in here, getting them to the table with the bank, but I don’t know what happens to these cases long term,” said Paul Lewis, chief of staff to New York’s chief administrative judge.91 “Many of the homeowners would do much better with an attorney.”92
Unlike criminal proceedings, the right to counsel is not absolute in civil cases.93 This further strengthens the argument that most pro se appearances by civil litigants are not voluntary, but instead result because they simply cannot afford attorneys to represent them. This is especially true when one considers the potential costs involved with discovery alone. Indeed, “[p]erhaps the great- est driving force in litigation today is discovery. Discovery abuse is a principal cause of high litigation transaction costs.”94 Unfortunately, “in far too many cases, economics—and not the merits—govern discovery decisions.”95 The re- sult is that “[l]itigants of moderate means are often deterred through discovery from vindicating claims or defenses, and the litigation process all too often be- comes a war of attrition for all parties.”96
If the right to counsel were absolute in civil cases, pro se appearances would decrease significantly, if not entirely. For several justifiable reasons, however, this is not how the American legal system functions. Because of this, some courts accord pro se litigants a certain degree of leniency, particularly
87 See, e.g., FED. R. CIV. P. 36(a)(3) (stating that “[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its at- torney”).
88 Streitfeld, supra note 83.
93 Lassiter v. Dep’t. of Soc. Servs., 452 U.S. 18, 26–27 (1981).
94 S. REP. NO. 101-650, at 20 (1990), as reprinted in 1990 U.S.C.C.A.N. 5763, 6823.
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720 NEVADA LAW JOURNAL [Vol. 16:707 with respect to procedural rules.97 Notwithstanding, extending too much leni-
ency undermines the system. As one court recently explained,
[T]he Court may not be co-opted by a pro se litigant to perform tasks normally carried out by hired counsel. Providing assistance or extending too much proce- dural leniency to a pro se litigant risks undermining the impartial role of the judge in the adversary system. Moreover, it has never been suggested that pro- cedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel. Pro se litigants must adhere to procedural rules as would parties assisted by counsel. This includes procedural requirements regarding the provision of adequate factual averments to sustain legal claims.98
In other words, claims of discovery abuse may be null, even if there is some trickery or omission from the opposing counsel because procedural rules tend to apply uniformly to pro se and represented parties, regardless of the une- qual knowledge of the law.99 For example, in Tall v. Alaska Airlines, a Ken- tucky court of appeals held that a pro se defendant’s belief that he had entered a settlement agreement with the plaintiff’s counsel during discovery did not pro- vide a remedy when he failed to submit a denial in a request for admissions.100 The defendant defaulted on a credit agreement and responded to a complaint filed by the bank by “denying that he owed any debt.”101 He stated that he dis- cussed a settlement amount with the bank’s attorney that would allow him to bring his account current; this conversation allegedly occurred prior to suit.102 A review of the case indicates there was a misunderstanding as to the agree- ment, and instead of a monthly payment, the defendant rendered the total “prin- cipal amount,” minus “interest owed, costs, or fees.”103
During discovery, the opposing counsel requested admissions and the de- fendant failed to answer, resulting in his admission that he still owed the debt.104 The defendant argued that counsel had “tak[en] advantage of [his] ig- norance of the law” in violation of a state statute that required parties to make a “good faith effort” to resolve discovery disputes.105 Yet, the court held that be- cause the “unanswered admission requests are deemed admitted . . . there is no
97 See, e.g., GJR Invs., Inc. v. Cty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998) (stat- ing that “[c]ourts do and should show a leniency to pro se litigants not enjoyed by those with the benefit of a legal education”).
98 United States v. Gregg, No. 12-322, 2013 WL 6498249, at *4 (W.D. Pa. Dec. 11, 2013) (internal quotations and citations omitted).
99 Paselk v. Rabun, 293 S.W.3d 600, 611 (Tex. Ct. App. 2009) (petition denied).
100 Tall v. Alaska Airlines, No. 2009-CA-002256-MR, 2011 WL 831918, at *1–*2 (Ky. Ct. App. Mar. 11, 2011) (alleging Credit Union took advantage of Tall’s pro se representation during discovery, in violation of Jefferson County Local Rule 4).
101 Id. at *1.
102 Id. at *3.
103 Id. at *4.
104 Id. at *3.
105 Id. at *4 (citing Local Rule 402).
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foreseeable reason for a party to seek to compel such admissions.”106 There- fore, an opposing attorney does not have a duty to warn another party, even pro se, to follow discovery procedures.107
This Article does not necessarily advocate for extra-judicial assistance to pro se litigants.108 Instead, it highlights a growing problem: pro se litigants are becoming more plentiful and they lack legal skill and knowledge to oppose ag- gressive counsel. As one scholar noted,
Our civil process before and during trial, in state and federal courts, is a master- piece of complexity that dazzles in its details—in discovery, in the use of ex- perts, in the preparation and presentation of evidence, in the selection of the fact- finder and the choreography of the trial. But few litigants or courts can afford it.109
When a party opponent senses this weakness, it will seize its prey. In one article discussing foreclosures and pro se parties, it was noted that lawyers “pretty much bank on people not showing up, or not having an attorney to rep- resent them.”110 Consequently, in addition to facing the aggressive lawyer, the misguided and naïve litigant is likely to encounter an opposing party who re- fuses to play by the rules because it knows (1) the chances of being caught, sanctioned, or challenged are relatively small and (2) the probability of prevail- ing in the lawsuit is significantly greater if the rules are not observed. The skilled lawyer, knowing that his opponent is not qualified, is thus encouraged to engage in improper or unsound litigation tactics.111 During the pending litiga- tion, there are several remedies available to thwart abusive litigation practice. Yet, when abusive practice actually leads to a judgment in favor of the perpe-
108 Some courts actually do accord “special attention” to pro se litigants faced with proce-
dural complexities, such as summary judgment motions. Ham v. Smith, 653 F.2d 628, 629– 30 (D.C. Cir. 1981). Indeed, some courts agree that a litigant is entitled to be warned that when she is confronted by a summary judgment motion, she must obtain evidentiary material to avoid the entry of judgment against her. See, e.g., Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992); Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam); Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C. Cir. 1968) (per curiam).
109 Kent D. Syverud, ADR and the Decline of the American Civil Jury, 44 UCLA L. REV. 1935, 1942 (1997).
110 Kat Aaron, Foreclosure Crisis + Legal Aid Cuts = @#$%!, MOTHER JONES (Feb. 14, 2011, 7:00 AM), http://www.motherjones.com/politics/2011/02/legal-services-corporation- recession.
111 See Scott L. Garland, Avoiding Goliath’s Fate: Defeating a Pro Se Litigant, 24 LITIG. 45, 46 (1998) (commenting that in his experience as a clerk at a federal district court, “[m]any lawyers seem to think that litigating against a pro se party gives the lawyer license to litigate like a pro se party, by omitting legal citations, making conclusory statements, forgoing affi- davits and evidence in favor of ipse dixit, and failing to evaluate the opponent’s argu- ments.”); see also Jon O. Newman, Pro Se Prisoner Litigation: Looking for Needles in Hay- stacks, 62 BROOK. L. REV. 519, 520 (1996) (concluding that state attorney generals’ experience with frivolous pro se prisoner litigation has led them to exaggerate or misstate the merit of certain pro se allegations).
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722 NEVADA LAW JOURNAL [Vol. 16:707 trator, the pro se litigant is left with very few procedural arrows in his quiver to
combat the wrongdoing.
2. The Attorney-Abandoned Litigant
Pro se litigants are not the only victims abused by improper gamesmanship. The Fallini case introduced in the Introduction represents the classic example of attorney abandonment.
When Fallini was sued, she retained an attorney to represent and defend her.112 He filed an answer on Fallini’s behalf. At the time of the lawsuit, Fallini was over sixty years of age and had no legal skills or knowledge of the proce- dures involved in a lawsuit.113 She relied on and trusted her attorney to resolve the legal dispute quickly, efficiently and competently. In June 2007, shortly af- ter her attorney filed Fallini’s answer, he represented to her that the case was over and that she had prevailed because of her statutory open-range defense.114 Unbeknownst to Fallini, however, the case was not over. In fact, litigation con- tinued by way of discovery requests and motion practice by counsel for the plaintiff, but Fallini’s attorney failed to answer various requests for admission, oppose a motion for summary judgment based on those unanswered requests for admissions, appear for a hearing on the motion for summary judgment, or respond to other discovery requests.115
Fallini “did not receive direct notice of the foregoing neglect of her attor- ney.”116 Nonetheless, the court entered partial summary judgment in which it imposed liability on Fallini for the accident.117 In particular, Fallini was deemed to have admitted that the accident did not occur on open range—which obviat- ed her complete defense to the action pursuant to NRS § 568.360(1)—even though she had already asserted that defense in her answer.118
The court later held her attorney in contempt of court and repeatedly im- posed significant sanctions for his failure to appear and comply with its orders in the case.119 “But despite these court-imposed sanctions, Fallini was still not informed of the status of her case, nor was she informed that her attorney was being sanctioned for his deliberate failure to represent her.”120 It was not until June 2010—three years after Fallini’s attorney told her that the case was over
112 Estate of Adams v. Fallini, No. CV 24539 (Nev. 5th Dist. Ct. Aug. 6, 2014), at 2 (court order).
113 Motion for Relief from Judgment Pursuant to NRCP 60(b) at 5, Estate of Adams, No. CV 24539.
114 Id. at 21.
115 Id. at 20–21.
116 Id. at 6.
117 Estate of Adams, No. CV 24539, at 3.
119 Id. at 3–4.
120 Motion for Relief From Judgment Pursuant to NRCP 60(b) at 6, Estate of Adams, No.
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and that she had prevailed—that Fallini learned the true status of her case—that a judgment exceeding $2.7 million had been entered against her despite her ironclad statutory defense.121
In situations where attorney misconduct like that discussed above leads to a favorable judgment, Rule 60(d)(3) should serve as a wide-open door that vic- tims can enter unhindered. One of the major problems associated with attorney abandonment is the difficultly in reversing the wrongdoing, especially if the party is faced with an adverse judgment. Abandonment has been defined in very strict terms and requires a high bar before a party may gain relief from judgment due to its own counsel’s inadequacy.122 Though not a discovery- abuse case, in Maples v. Thomas,123 the United States Supreme Court recently held that a “habeas prisoner’s default” would be excused when the filing dead- line was missed due to his attorneys’ abandonment because “a client cannot be charged with the acts or omissions of an attorney who has abandoned him.”124 However, this is a high bar, requiring “extraordinary circumstances beyond . . . [a party’s] control,” such as “evidence [of] counsel’s near-total failure to com- municate with, [or respond to], petitioner.”125 A procedural error, such as miss- ing a filing deadline, does not fit the mold.126 Abandonment requires something more akin to the injured party in Maple where the attorneys not only failed to file the petition, but also, among other things, (1) took on new employment, (2) failed to notify their client, (3) failed to withdraw, (4) allowed ineffective coun- sel to take over, and (5) permitted clerical issues to occur at their firm that de- prived the client of important communications.127 Furthermore, the “attorney abandonment” addressed by the Supreme Court occurred in a criminal proce- dure context, not in a civil suit.128
Accordingly, without facts similar to this extreme example of abandonment in a criminal case, courts are left to their discretion to render judgment against a party due to his own attorney’s misconduct during discovery. Though failing to communicate with a client129 and failing to file orders or respond to re-
121 Id. at 6–7.
122 This is a narrow exception from the normal discretion courts have to impose sanctions
for discovery violations.
123 132 S. Ct. 912 (2012).
124 Id. at 924.
125 Id. at 923–24.
126 Id. at 921. Yet, it should be noted that courts still have the discretion to sanction for a
127 Id. at 928 (Alito, J., concurring).
128 See generally id.
129 See, e.g., Comerica Bank v. Esposito, 215 Fed. App’x 506, 508 (7th Cir. 2007) (stating
that failure to communicate with a client is not generally enough for “postjudgment relief”); Cohen v. Brandywine Raceway Ass’n, 238 A.2d 320, 325 (Del. Super. Ct. 1968) (stating that even if the attorney failed to follow up after delivering the interrogatories, it was not “excusable neglect” when answers were not filed on time).
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quests130 are common, these actions generally do not afford relief, even when it is the fault of the represented party’s counsel.
For example, in Platinum Rehab, Ltd. v. Platinum Home Health Care Ser- vices, an Ohio district court found that abandonment arising to “extraordinary circumstances” did not exist when the represented party could not show she was free from fault after her attorney failed to meet several deadlines, resulting in judgment against her.131 The defendant alleged that her attorney was “grossly negligent” and “abandoned representation” when he failed to answer a com- plaint, respond to discovery requests, and failed to appear at a hearing.132 Yet, the court found that she was not abandoned for three reasons.133 First, she was present and aware of the filing dates for the answer and discovery requests.134 Second, there was no evidence except her own statement that she provided the necessary information for the discovery requests.135 Third, there was no evi- dence that she made an effort “to ensure” her attorney complied with the dead- lines.136 For these reasons, the court upheld the judgment against the defendant, even though her own counsel was negligent.137 But what if the complaint or discovery requests that went unanswered were peppered with inaccurate, mis- leading, or fraudulent statements that allowed the plaintiff to obtain a judgment against the attorney-abandoned defendant? What would be the defendant’s remedy? How could that judgment be set aside? Even if she was not free from fault because she was aware of the filing dates, would that somehow offset any fraud that occurred during discovery or mitigate the harm?
In another case, a Michigan court of appeals held that “effective abandon- ment” was not a legal term and denied reversing judgment against the plaintiff that resulted from the plaintiff’s attorney’s failure to comply with discovery.138
130 See, e.g., Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir. 2002) (refusing to over- turn dismissal for attorney’s failure to follow court orders and procedures); Tolliver v. Northrop Corp., 786 F.2d 316, 319 (7th Cir. 1986) (finding that relief for judgment was not warranted for attorney’s failure to comply with discovery requests); Corchado v. Puerto Rico Marine Mgmt., Inc., 665 F.2d 410, 413 (1st Cir. 1981) (holding that dismissal was appropri- ate where counsel repeated failed to respond to discovery requests); Weinreb v. TR Devel- opers, LLC, 943 N.E.2d 856, 858 (Ind. Ct. App. 2011) (holding that relief from summary judgment would not be granted where the defendant’s attorney failed to argue a defense that was “known or knowable” at the time judgment was granted); Moore v. Taylor Sales, Inc., 953 S.W.2d 889, 894 (Ark. Ct. App. 1997) (holding that default judgment would not be set aside where the attorney failed to file “timely answers” even though his client delivered the attorney the answers and the attorney assured the client he would file a response).
131 Platinum Rehab., Ltd. v. Platinum Home Health Care Servs., LLC, No. 1:11CV1021, 2012 WL 4461502, at *4 (N.D. Ohio Sept. 25, 2012).
132 Id. at *1.
133 Id. at *1, *4.
134 Id. at *4.
137 Id. at *5.
138 Beck v. Cass Cty. Rd. Comm’n, No. 305246, 2012 WL 4465166, at *2 (Mich. Ct. App.
Sept. 27, 2012).
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In Beck v. Cass County Road Commission, the trial court dismissed the plain- tiff’s complaint as a “sanction for the willful failure to comply with an order to compel discovery.”139 In denying the plaintiff’s motion for relief from judg- ment, the court determined that relief was unwarranted because an attorney’s professional negligence is attributable to the client and does not ordinarily con- stitute grounds for setting aside judgments.140 Even though the plaintiffs claimed that they were effectively abandoned by this non-assistance, the court found that there was no legal basis for this claim.141 Thus, the attorney’s lack of vigor and lack of compliance was insufficient to allow relief from judgment.142
As illustrated in the Fallini case, a false admission, which stems from an attorney failing to respond adequately to a request for admission, may lead to a dangerous result: an improper judgment unsupported by any law.143 While a court may have no problem withdrawing a false admission in a discovery doc- ument while discovery is ongoing,144 there is little guidance to show how a court would consider a false admission after judgment has been entered.145 A party who is represented and is subjected to judgment due to his own party’s misconduct has very limited remedies. For states that impute liability, Federal Rules of Civil Procedure Rule 60146—or state-law equivalents—appear to be the only source of relief.147
II. FRAUD ON THE COURT
Rule 60(d) of the Federal Rules of Civil Procedure, which provides the grounds for relief from a final judgment, order, or proceeding, states that the rule “does not limit a court’s power to . . . set aside a judgment for fraud on the court.”148
What is “fraud on the court” within the meaning of Rule 60? Are there cer- tain time limitations associated with this rule for parties seeking grounds for
139 Id. at *1.
140 Id. at *2.
142 Id. at *3.
143 Blasky, supra note 4.
144 See Brankovic v. Snyder, 578 S.E.2d 203, 207 (Ga. App. 2003) (stating that “[a] party
has no right to a judgment based on false ‘admissions’ ” due to a late response).
145 Turner v. Alta Mira Vill. Homeowners Ass’n, Inc., No. 2 CA-CV 2013-0151, 2014 WL 7344049, at *4 (Ariz. Ct. App. Dec. 24, 2014) (refusing to award sanctions where false ad- mission resulted from “erroneously admit[ing] the truth.”). Compare this to the somewhat analogous treatment for the failure to assert an affirmative defense (both require an affirma- tive statement). See, e.g., Allmerica Fin. Life Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 665–66 (9th Cir. 1997) (holding that failure to plead an affirmative defense does not afford relief from judgment due to an attorney’s “ ‘ignorance nor carelessness’ ”) (quoting Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992)).
146 See FED. R. CIV. P. 60.
147 Las Vegas Land & Dev. Co., LLC v. Wilkie Way, LLC, 219 Cal. Rptr. 3d 391, 392 (Ct.
App. 2013); Beck, 2012 WL 4465166, at *2. 148 FED. R. CIV. P. 60(d)(3).
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relief from a final judgment? Does “fraud on the court” require the same stand- ard of proof for common law fraud? Was that intent of the rule’s framers?
Rule 60(d)(3) was added in 1948.149 The framers’ intention may best be in- dicated in the Advisory’s Committee’s discussion of the rule:
The amendment . . . mak[es] fraud an express ground for relief by motion; and under the saving clause, fraud may be urged as a ground for relief by independ- ent action insofar as established doctrine permits. And the rule expressly does not limit the power of the court . . . to give relief under the savings clause. As an illustration of the situation, see Hazel-Atlas Glass Co. v. Hartford Empire Co. [322 U.S. 238 (1944)].150
Because of the express reference to Hazel-Atlas Glass Co. v. Hartford- Empire Co.,151 an examination of this case is important for a full understanding of the meaning of the phrase. Hartford, in support of an application for a patent, submitted to the Patent Office an article—drafted by an attorney of Hartford— referring to the contested process as a “revolutionary device.” The company had arranged to have the article printed in a trade journal under the name of an ostensibly disinterested person.152 The Patent Office relied heavily on this arti- cle in granting the patent application.153 Hartford then sued Hazel, charging in- fringement of the patent. The Third Circuit, in upholding the validity of the pa- tent, also relied on the article.154 Eventually, Hazel yielded and paid Hartford $1,000,000 and entered into a licensing agreement.155 Approximately ten years later, the information about the fraud surrounding the agreement was brought to light.156 Hazel then filed an action with the court to have the judgment against it set aside and the judgment of the district court reinstated.157 The Supreme Court, in an opinion authored by Justice Black, held that the judgment must be vacated:158
[T]he general rule [is] that [federal courts will] not alter or set aside their judg- ments after the expiration of the term at which the judgments were finally en- tered. . . . [but]
[e]very element of the fraud here disclosed demands the exercise of the his- toric power of equity to set aside fraudulently begotten judgments. This is not simply a case of a judgment obtained with the aid of a witness who, on the basis of after-discovered evidence, is believed possibly to have been guilty of perjury.
149 11 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE CIVIL § 2870 (3d ed. 2015).
150 FED. R. CIV. P. 60 advisory committee’s note to 1946 amendment (citations omitted).
151 322 U.S. 238 (1944).
152 Id. at 240.
153 Id. at 241.
155 Id. at 243.
158 Id. at 251.
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Here, even if we consider nothing but Hartford’s sworn admissions, we find a deliberately planned and carefully executed scheme to defraud not only the Pa- tent Office but the Circuit Court of Appeals.159
Additionally, although Hazel may not have exercised proper diligence in uncovering the fraud, the Court thought it immaterial.160 Indeed, it noted the case did not concern just the private parties, but rather the public at large be- cause there are “issues of great moment to the public in a patent suit.”161 It then stated,
Furthermore, tampering with the administration of justice in the manner indis- putably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institu- tions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judi- cial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.162
Interestingly, the Court held that it need not decide to what extent the pub- lished article by Hartford had influenced the judges who voted to uphold the patent or whether the article was the primary basis of that ruling because “Hart- ford’s officials and lawyers thought the article material” and they were in “no position now to dispute its effectiveness.”163 And since the fraud had been di- rected to the Third Circuit, that court was the appropriate court to remedy the fraud.164 Thus, the Supreme Court directed the Third Circuit to vacate its 1932 judgment and to direct the district court to deny all relief to Hartford.165
Nearly all of the principles that govern a claim of fraud on the court come from the Hazel-Atlas case.166 First, the power to set aside a judgment exists in every court.167 Second, in whichever court the fraud was committed, that court should consider the matter.168 Third, while parties have the right to file a mo- tion requesting the court to set aside a judgment procured by fraud, the court may also proceed on its own motion.169 Indeed, one court stated that the facts that had come to its attention “not only justify the inquiry but impose upon us the duty to make it, even if no party to the original cause should be willing to cooperate, to the end that the records of the court might be purged of fraud, if
159 Id. at 244–45.
160 Id. at 246.
163 Id. at 246–47.
164 Id. at 248–50.
165 Id. at 251.
166 WRIGHT ET AL., supra note 151.
168 Id. (citing Universal Oil Prods. Co. v. Root Refining Co., 328 U.S. 575 (1946) (other ci-
tations omitted)). 169 Id.
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any should be found to exist.”170 Fourth, unlike just about every other remedy or claim existing under the rules of civil procedure or common law, there is no time limit on setting aside a judgment obtained by fraud, nor can laches bar consideration of the matter.171 The logic is clear: “[T]he law favors discovery and correction of corruption of the judicial process even more than it requires an end to lawsuits.”172
The United States Supreme Court—in a case a few years after the Hazel- Atlas case—discussed some of the appropriate procedures used in adjudicating fraud on the court claims.
The power to unearth such a fraud is the power to unearth it effectively. Accord- ingly, a federal court may bring before it by appropriate means all those who may be affected by the outcome of its investigation. But if the rights of parties are to be adjudicated in such an investigation, the usual safeguards of adversary proceedings must be observed.173
Since Hazel-Atlas, a considerable number of courts have had the oppor- tunity to dissect the meaning of “fraud on the court” and several definitions have been attempted. A number of courts have held that a “fraud on the court” occurs “where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improp- erly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.”174
Fraud on the court is a very high bar. The Tenth Circuit has held that it is fraud “directed to the judicial machinery itself and is not fraud between the par- ties or fraudulent documents . . . . It is thus fraud where . . . the impartial func- tions of the court have been directly corrupted.”175 And “only the most egre- gious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated, will con- stitute a fraud on the court.”176
Some courts require the moving party to meet certain elements in order to set aside a judgment for fraud on the court. For example, in the Third Circuit,
170 Root Refining Co. v. Universal Oil Prods. Co., 169 F.2d 514, 521–23 (3d Cir. 1948) (emphasis added).
171 See WRIGHT ET AL., supra note 151.
172 Lockwood v. Bowles, 46 F.R.D. 625, 634 (D.D.C. 1969).
173 Universal Oil, 328 U.S. at 580.
174 Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989) (emphasis added) (citing
Alexander v. Robertson, 882 F.2d 421, 424 (9th Cir. 1989)); Pfizer Inc. v. Int’l Rectifier Corp., 538 F.2d 180, 195 (8th Cir. 1976); England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960); United Bus. Commc’ns, Inc. v. Racal-Milgo, Inc., 591 F. Supp. 1172, 1186–87 (D. Kan. 1984); United States v. ITT Corp., 349 F. Supp. 22, 29 (D. Conn. 1972), aff’d mem., 410 U.S. 919 (1973).
175 Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1266 (10th Cir. 1995) (emphasis added).
176 Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978).
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fraud on the court applies to only “the most egregious misconduct directed to the court itself”177 and requires the following elements: “(1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court.”178
Furthermore, fraud on the court under Rule 60(d)(3) does not encompass “ordinary fraud,” and must also be distinguished from “fraud” under Rule 60(b)(3)—i.e., those frauds which are not directed to the judicial machinery it- self.179 Rule 60(b)(3) provides relief from judgment where there is “fraud . . . misrepresentation, or misconduct by an opposing party.”180 “Fraud upon the court as distinguished from fraud on an adverse party is limited to fraud which seriously affects the integrity of the normal process of adjudication.”181 Ac- cordingly, the standard for establishing fraud on the court under Rule 60(d)(3) “is higher and distinct from the more general standard for fraud under Rule 60(b)(3).”182 Furthermore, while Rule 60(c)(1) limits to one year the time with- in which a motion under Rule 60(b)(3) must be made, a claim based upon fraud on the court under Rule 60(d)(3) is intended “to protect the integrity of the ju- dicial process” and, therefore, is not time barred.183
Despite the definitions and standards developed by the courts, the distinc- tion between “fraud” and “fraud on the court” is unclear and much confusion still exists about what type of conduct falls into this category. As one court que- ried,
What is meant by “defile the court itself”? What is meant by “fraud perpetrated by officers of the court”? Does this include attorneys? Does it include the case in which an attorney is deceived by his client, and is thus led to deceive the court? The most that we can get . . . is that the phrase “fraud on the court” should be read narrowly, in the interest of preserving the finality of judgments, which is an important legal and social interest. We agree, but do not find this of much help to us in deciding the question before us.184
As one commentator noted, “[p]erhaps the principal contribution of all of these attempts to define ‘fraud upon the court’ and to distinguish it from mere ‘fraud’ is  a reminder that there is a distinction.”185 If any fraud connected with the presentation of a case to a court is fraud on the court, then Rule 60(b)(3) and the time restraints imposed on that rule lose meaning. Nonethe- less, because of its opaque meaning and application, several arguments can be made that abusive discovery between the parties, which ultimately results in a
177 Herring v. United States, 424 F.3d 384, 386–87 (3d Cir. 2005).
178 Id. at 386.
179 See United States v. Buck, 281 F.3d 1336, 1342 (10th Cir. 2002).
180 FED. R. CIV. P. 60(b)(3).
181 King v. First Am. Investigations, Inc. 287 F.3d 91, 95 (2d Cir. 2002) (internal quotations
182 In re Old Carco LLC, 423 B.R. 40, 52 (Bankr. S.D.N.Y. 2010).
183 Bowie v. Maddox, 677 F. Supp. 2d 276, 278 (D.D.C. 2010).
184 Toscano v. Comm’r of Internal Revenue, 441 F.2d 930, 933–34 (9th Cir. 1971).
185 WRIGHT ET AL., supra note 151.
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on the court under Rule 60(d)(3).
III. ABUSIVE DISCOVERY AS FRAUD ON THE COURT AND REEVALUATING THE STANDARD
When, if ever, will abusive discovery practices rise to the level of fraud on the court within the meaning of Rule 60(d)(3)? Do the current standards adopt- ed by the courts preclude utilizing Rule 60(d)(3) to set aside judgments pro- cured by deceptive or misleading discovery? Is it proper to modify the height- ened standard under Rule 60(d)(3) based on the victim, the offender, and the relief sought?
Unfortunately, courts tend to focus on antiquated standards when analyzing whether a party has committed fraud on the court, but fail to recognize the flex- ibility and equitable nature of the fraud-on-the-court rule. Indeed, nearly all courts that undertake the fraud-on-the-court analysis begin their opinions with the Hazel-Atlas case, then discuss the standards and definitions adopted by oth- er courts, and finally decide whether the facts fit within that definition and standard.186 The problem with this flawed analysis, however, is that victims of fraudulent discovery find themselves as a square-peg trying to fit into a round hole. But each case is unique and must be assessed and adjudicated according to its own facts.
Accordingly, this article suggests that courts engage in a four-step process that requires (1) examination of the offender and his duties to the court, (2) evaluation of the conduct and its effect, (3) consideration of the victim’s status (the equitable component), and (4) consideration of the relief being sought. By engaging in this four-step process, courts may be more willing to set aside judgments under Rule 60(d)(3) when abusive discovery occurs that influences the decisions of courts.
A. The Offender and His Duty
When abusive discovery is at issue, the offending party will likely be an at- torney.187 Why is the offender’s status important to the analysis? “An attorney is an officer of the court and owes the court fiduciary duties and loyalty.”188 Accordingly, “[w]hen an attorney misrepresents or omits material facts to the court, or acts on a client’s perjury or distortion of evidence, his conduct may
186 See, e.g., Murray v. Ledbetter, 144 P.3d 492, 498 (Alaska 2006) (discussing Hazel- Atlas’s “strict” definition of the elements necessary to prove fraud on the court, the tracing of the rule, and whether, “[i]n keeping with Hazel-Atlas,” the activity at hand constituted a fraud on the court).
187 Obviously, there may be some situations where pro-se litigants are the one conducting abusive discovery, but that appears to be a rare occurrence.
188 Trehan v. Von Tarkanyi, 63 B.R. 1001, 1007 (Bankr. S.D.N.Y. 1986).
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constitute a fraud on the court.”189 Furthermore, when an officer of the court fails to correct a misrepresentation or retract false evidence submitted to the court, it may also constitute fraud on the court.190 Notwithstanding, examina- tion of the offender and his duty is not limited solely to an attorney’s duty of candor toward the tribunal.191 Rather, the analysis requires courts to examine certain duties that arise well before the offender involves the court.
At the outset, Rule 26(g) of the Federal Rules of Civil Procedure requires that an attorney of record sign discovery-related filings, and prescribes that the signature certifies that “to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry” the discovery request, response, or ob- jection is “consistent with these rules and warranted by existing law.”192 The signature also certifies that the request, response, or objection is “not interposed for any improper purpose, such as to harass, cause unnecessary delay, or need- lessly increase the cost of litigation.”193 Accordingly, Rule 26 obligates “each attorney to stop and think about the legitimacy of a discovery request, a re- sponse thereto, or an objection”194 and to make a reasonable inquiry into the factual and legal basis of his response, request, or objection. The Model Rules of Professional Conduct provide further guidance.
Lawyers are professionally and ethically responsible for accuracy in their representations to the court. Rule 3.1 of the Model Rules of Professional Con- duct states that lawyers “shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law.”195 Similarly, Rule 3.3 provides that “[a] lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”196
In addition to the rules of professional conduct and an attorney’s duty of candor as an officer of the court, “Rule 11 [of the F.R.C.P.] imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have de- termined that any papers filed with the court are well grounded in fact, legally tenable, and not interposed for any improper purpose.”197 The United States Supreme Court has held that Rule 11,
190 In re McCarthy, 623 N.E.2d 473, 477 (Mass. 1993).
191 See, e.g., NEV. RULES OF PROF’L CONDUCT 3.3 (stating that lawyers shall not make false
statements of fact or law to the court or fail to correct false statements of material fact to the court).
192 FED. R. CIV. P. 26(g).
194 FED. R. CIV. P. 60 advisory committee’s note to 1983 amendment.
195 MODEL RULES OF PROF’L CONDUCT r 3.1 (AM. BAR. ASS’N 2013).
196 Id. at 3.3(a).
197 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990) (internal quotation marks
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imposes on any party who signs a pleading, motion, or other paper—whether the party’s signature is required by the Rule or is provided voluntarily—an affirma- tive duty to conduct a reasonable inquiry into the facts and the law before filing, and that the applicable standard is one of reasonableness under the circumstanc- es.198
An examination of the offender and his duties is important because, as dis- cussed below, violations of Rule 26, Rule 11, or even the rules of professional conduct may give rise to a fraud-on-the-court claim, even if those violations were not specifically directed to the court itself.
B. Evaluation of the Conduct
After evaluating the offender and his duties, courts should analyze the con- duct at issue. In examining the conduct, however, this Article suggests that the heightened standard adopted by several courts for fraud on the court does not comport with the rationale for employing Rule 60(d)(3) to set aside judgments. Instead, this Article suggests that courts examine one specific question when evaluating the conduct: did the conduct cause the court not to perform in the usual manner in its impartial task of adjudging cases?
While some suggest that the fraud or deceit committed by the attorney must be aimed directly at the court to constitute fraud on the court, this position seems faulty; however, it raises an important issue: since “[f]raud between the parties and fraud on the court are two distinct bases for post-judgment re- lief,”199 how can a victim use Rule 60(d)(3) to ever set aside a judgment? In other words, abusive discovery is aimed at the opposing party rather than the court, and, thus, it would appear a victim has no claim under Rule 60(d)(3). But that is not necessarily true. Fraud on the court can originate from abusive dis- covery and find its way, sometimes unintentionally, to the steps of the court- house. Accordingly, it is a myopic approach to only examine the arrow that the attorney shot towards the court and then decide whether the arrow was suffi- ciently harmful to constitute fraud on the court. Rather, a proper approach will examine all of the arrows the attorney shot at the victim and then analyze which arrows found their way to the court and the impact those arrows caused on the judgment.
Thus, for example, if an adversary misrepresents certain relevant infor- mation, fails to disclose such information, requests admissions that he knows to be false, lies during a deposition, or engages in any other deceitful form of dis- covery, he has clearly violated Rule 26 and has potentially engaged in fraud, misrepresentation, or other misconduct prohibited by ethical rules and state and federal rules of civil procedure. Admittedly, fraud on the court requires more than misconduct between the adverse parties—it must be some sort of miscon- duct that hampers the judicial machinery. Therefore, the critical component to
198 Bus. Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 551 (1991).
199 Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1291 (10th Cir. 2005).
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the analysis is whether the offending party utilizes the information it obtained through abusive discovery practices to obtain a favorable judgment.
In Kupferman v. Consolidated Research & Manufacturing Corp,200 the court stated that
[w]hile an attorney “should represent his client with singular loyalty that loyalty obviously does not demand that he act dishonestly or fraudulently; on the con- trary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court.” And when he departs from that standard in the conduct of a case he perpetrates a fraud upon the court.201
In other words, “[s]ince attorneys are officers of the court, their conduct, if dis- honest, would constitute fraud on the court.”202
In order to establish fraud on the court, some courts require the movant to prove by clear and convincing evidence intentional fraudulent conduct specifi- cally directed at the court itself.203 For example, the Tenth Circuit had held that the fraud must directed to the judicial machinery itself and cannot be fraud or misconduct between the parties or fraudulent documents exchanged between the parties.204 Other courts have held that an action for fraud on the court is available only when the movant can show an “unconscionable plan or scheme” to improperly influence the court’s decision.205 Under this strict approach, one could argue that the only cases of fraud on the court would be those of bribery of a judge or members of a jury. In fact, the strict approach would arguably take away any consideration of the conduct that occurred between the parties or an attorney making filings to the court without making “an inquiry reasonable under the circumstances,” as required under Rule 11(b).206
This strict approach in evaluating the conduct that occurred, however, seems inconsistent with the purpose of Rule 60(d)(3). If the judicial machinery is unable to perform in the usual manner in its impartial task of adjudicating cases because of attorney misconduct, why does fraud on the court require the conduct at issue to be intentional and aimed directly at the court itself? Why does it have to be an intentional “plan” or “scheme”?207 On the contrary, if a party is responsible for undermining the integrity of the judicial process be- cause it chose to recklessly present misleading or false evidence to the court and the court’s judgment was influenced by the conduct at issue, the judgment should be set aside as a fraud on the court.
200 459 F.2d 1072 (2d Cir. 1972).
201 Id. at 1078 (internal citation omitted).
202 H.K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d 1115, 1119 (6th Cir. 1976).
203 Herring v. United States, 424 F.3d 384, 386–87 (3d Cir. 2005).
204 Robinson v. Aktiengesellschaft, 56 F.3d 1259, 1266 (10th Cir. 1995).
205 Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978) (emphasis added) (quot-
ing England v. Doyle, 281 F.2d 304, 309 (9th Cir 1960)).
206 FED. R. CIV. P. 11(b).
207 See, e.g., Fierro v. Johnson, 197 F.3d 147, 154 (5th Cir. 1999) (holding that in order to
establish fraud on the court, it is “necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its discretion.”) (citation omitted).
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Accordingly, lawyers that use information obtained through discovery that has no basis in law or fact to support motions filed with the court are clearly misleading the court, even if they have no intent to defraud the court. Indeed, “an attorney might commit fraud upon the court by instituting an action ‘to which he knew [or should have known] there was a complete defense.’”208 Similarly, lawyers that choose to conduct discovery without making an inquiry reasonable under the circumstances and then present false or misleading infor- mation to the court in order to obtain a favorable judgment may be guilty of fraud on the court. For example, kneejerk discovery requests served without consideration of existing law can, and should, rise to the level of fraud on the court under Rule 60(d)(3) if the court is influenced by the discovery that was improperly obtained.
Some cases may be opening the door for a more relaxed approach to the conduct component. For example, in Eastern Financing Corporation v. JSC Alchevsk Iron and Steel Works,209 the court found that an attorney committed fraud on the court when he filed a motion for default judgment.210 Absent from the court’s opinion is any analysis of the attorney’s intent.211 Instead, the court focuses on a few areas of conduct that suggest a more relaxed approach to the fraud on the court standard.212 Admittedly, the case does not involve abusive discovery, but it is illustrative of a softened approach when analyzing whether certain conduct rises to the level of fraud on the court.
Of particular importance in Eastern Financing is the court’s continued ref- erence to Rule 11 violations and a lawyer’s duty to conduct a reasonable in- quiry before filing documents with the court. Interestingly, Rule 11 does not speak to fraud, nor does a violation of Rule 11 require the movant to prove in- tent. Yet the court seemed content relying, at least in part, on this rule to find that a fraud on the court had occurred.213 In fact, a Rule 11 violation can occur when an attorney acts recklessly. Indeed, the court found that the attorney filed the complaint “without making an inquiry reasonable under the circumstances as required under Rule 11(b).”214 The court held that this was “irresponsible” for the attorney to rely on his client’s “oral recitation of facts” in preparing the complaint.215
The most compelling evidence against the attorney, however, was that he knowingly sponsored his client’s nondisclosure and misrepresentations when
208 Alexander v. Robertson, 882 F.2d 421, 424 (9th Cir. 1989) (citing Kupferman v. Consol. Research & Mfg. Corp., 456 F.2d 1072, 1079 (2d Cir. 1972)).
209 258 F.R.D. 76 (S.D.N.Y. 2008).
210 Id. at 88.
211 But see, e.g., Herring v. United States, 424 F.3d 384, 386 (3d Cir. 2005) (requiring inten-
tional fraudulent conduct by an officer of the court in order to come within the purview of fraud on the court under Rule 60(d)(3)).
212 See Eastern Financing, 258 F.R.D. at 85.
213 Id. at 86.
215 Id. at 87.
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verifying the complaint and then filing the motion for default judgment.216 That alone was enough for the court to find that the attorney committed a fraud on the court.217 The court also found that a letter submitted by the attorney to the court that failed to make mention of a pending bankruptcy case was “less than honest dealing with the court.”218 When discussing the party’s conduct that contributed to a Rule 11 violation, the court said his submissions to the court show that he is “careless with facts and often misleading, and that he relies on suspicion and hearsay.”219 Absent again from the court’s analysis, however, is any reference to intentional fraudulent conduct specifically directed at the court itself.220 Notably, the court continued to analyze the very question posed by this Article: did the conduct at issue cause the court not to perform in the usual manner its impartial task of adjudging cases?221
In further support of a lightened standard, courts that have analyzed fraud on the court claims consistently refer to the “fraud, misrepresentation, or con- duct” that occurred in procuring the judgment.222 Again, suggesting that inten- tional fraudulent conduct specifically directed at the court is not a prerequisite to a successful fraud on the court claim. Even the Supreme Court in Hazel- Atlas stated that “[t]he public welfare demands that the agencies of public jus- tice be not so impotent that they must always be mute and helpless victims of deception and fraud.”223 There is no plausible explanation why a claim for fraud on the court cannot stand when the deception or misconduct occurs be- tween the litigants during discovery and then, at some point during the case, the conduct at issue impedes the court from performing in the usual manner its im- partial task of adjudging the case.
C. Consideration of the Victim’s Status (The Equitable Component)
The doctrine of fraud on the court allows courts to provide equitable relief. Indeed, “the doctrine of fraud on the court is a judicially devised equitable doc-
216 Id. at 82–83.
217 Id. at 88.
219 Id. at 90.
220 See, e.g., Robinson v. Aktiengesellschaft, 56 F.3d 1259, 1266 (10th Cir. 1995) (holding
that fraud on the court requires fraud directed to the judicial machinery itself).
221 See Eastern Financing, 258 F.R.D. at 85.
222 See, e.g., Anderson v. New York, No. 07 Civ. 9599(SAS), 2012 WL 4513410, at *4 (S.D.N.Y. Oct. 2, 2012) (stating that the “fraud, misrepresentation or conduct must have ac- tually deceived the court”) (emphasis added); see also In re Old Carco, LLC, 423 B.R. 40, 52 (Bankr. S.D.N.Y. 2010) (stating that “[t]he fraud, misrepresentation or conduct must in- volve an unconscionable plan or scheme which is designed to improperly influence the court in its decision”) (internal citation omitted).
223 Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944) (emphasis add- ed).
16 NEV. L. J. 707, HAGUE - FINAL.DOCX 4/12/16 6:31 PM
736 NEVADA LAW JOURNAL [Vol. 16:707 trine, the application of which is dependent on the facts of the case.”224 In Ha-
zel-Atlas, the Court noted,
Equitable relief against fraudulent judgments is not of statutory creation. It is a judicially devised remedy fashioned to relieve hardships which, from time to time, arise from a hard and fast adherence to another court-made rule, the gen- eral rule that judgments should not be disturbed after the term of their entry has expired. Created to avert the evils of archaic rigidity, this equitable procedure has always been characterized by flexibility which enables it to meet new situa- tions which demand equitable intervention, and to accord all the relief neces- sary to correct the particular injustices involved in these situations.225
Notwithstanding, some courts have held that even if a party can demon- strate conduct that caused the court not to perform in the usual manner its im- partial task of adjudging a case, “[a]ny issues that may have been ‘addressed through the unimpeded adversary process’ are not appropriately attacked on the basis of fraud upon the court.”226 For example, in Gleason v. Jandrucko, the court found no fraud on the court where the plaintiff had an opportunity to ex- pose misrepresentations made in discovery at trial.227 There, the plaintiff moved under Rule 60 after the plaintiff’s case was dismissed.228 The plaintiff argued that the officers in the case lied during their depositions about having probable cause; however, the district court found that the plaintiff had opportunity to ex- pose those inconsistencies during trial and failed to do so.229 Other courts have stated that allegations of an opposing counsel’s intentional mischaracterization of the applicable law, evidence, or affidavits submitted to the court does not rise to the level of fraud on the court if the movant’s own counsel could have rebutted opposing counsel’s mischaracterization of the law and the record be- fore the court.230
This harsh approach is unreasonable, especially if courts consider the vic- tim. The Supreme Court in Hazel-Atlas made it clear that the fraud-on-the-court rule should be characterized by flexibility and an ability to meet new situations demanding equitable intervention.231 Because of the equitable and flexible na- ture of the rule, this Article contends that courts have ample leeway and discre- tion to consider the victim’s status—i.e., those parties unable to recognize or combat the fraud prejudgment—in determining whether to set aside a judgment for fraud on the court.
224 State ex rel. Corbin v. Arizona Corp. Comm’n, 693 P.2d 362, 370 (Ariz. Ct. App. 1984).
225 Hazel-Atlas, 322 U.S. at 248 (emphasis added).
226 In re Old Carco, 423 B.R. at 53 (citing Weldon v. United States, No. 99-6142, 2000 WL
1134358, at *2 (2d Cir. Aug. 9, 2000)).
227 Gleason v. Jandrucko, 860 F.2d 556, 557 (2d Cir. 1988).
228 Id. at 558.
229 Id. at 560.
230 Weldon, 2000 WL 1134358, at *2.
231 Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 248 (1944) (emphasis add-
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Is it fair to suggest that pro se litigants or attorney-abandoned litigants have a duty to root out all evil during the discovery process and that any issues that could have been addressed cannot be appropriately attacked on the basis of fraud on the court? Should courts deny these victims relief because they should have, for example, rebutted opposing counsel’s mischaracterization of the law and the record before the court? Or should courts, equipped with equitable power to correct transgressions that occur before them, recognize that often- times victims of abusive discovery lack both the skill and knowledge to uncov- er misconduct during discovery or at trial? Pro se litigants and attorney- abandoned litigants do not have the tools to combat abusive discovery. These victims do not understand what a deemed admission means. These victims do not understand how interrogatories can be used fraudulently to support a mo- tion for summary judgment. These victims do not understand how the rules of civil procedure can be employed to thwart abusive discovery before it is too late.
Because courts are endowed with the power to ascertain whether their judgments were obtained by fraud, misrepresentation, or other misconduct, the victim’s status should be a consideration. The fact that the misconduct could have been rooted out during discovery should be insignificant in most cases, but it should be especially inconsequential when an attorney does not represent the victim involved. Actions involving these sorts of victims should be gov- erned by even more flexibility to afford necessary relief. The harsh standard other courts have employed should not be the current view because it is contra- ry to the equitable principles behind the relief afforded by Rule 60(d)(3).
D. Consideration of the Relief Being Sought
Interestingly, although Rule 60(d)(3) is the only rule that even mentions the fraud-on-the-court doctrine, other Federal Rules of Civil Procedure, including Rules 11, 16, 26, 37, and 41, have been cited in applying the doctrine. For ex- ample, courts have dismissed, defaulted, and sanctioned litigants for fraud on the court, and have found the necessary authority outside of Rule 60(d)(3)— often citing the inherent power given to all courts to fashion appropriate reme- dies and sanctions for conduct which abuses the judicial process.232 Some courts have premised dismissal or default of a litigant who committed fraud on the court entirely on Rule 11.233 Other courts have relied on Rule 41(b) for au- thority to dismiss a plaintiff who has committed fraud on the court.234 Rule
232 See, e.g., Brockton Sav. Bank v. Peat, Marwick, Mitchell & Co., 771 F.2d 5, 11–12 (1st Cir. 1985); Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983); Eppes v. Snowden, 656 F. Supp. 1267, 1279 (E.D. Ky. 1986).
233 See, e.g., Combs v. Rockwell Int’l Corp., 927 F.2d 486, 488 (9th Cir. 1991).
234 C.B.H. Res., Inc. v. Mars Forging Co., 98 F.R.D. 564, 569 (W.D. Pa. 1983) (dismissing
under Fed. R. Civ. P. 41(b) where party’s fraudulent scheme, including use of a bogus sub- poena, was “totally at odds with the . . . notions of fairness central to our system of litiga- tion”).
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41(b) provides the court with authority to dismiss a case if a plaintiff fails to comply with the rules of civil procedure or other court orders.235 Such a dismis- sal operates as an adjudication on the merits.236 This rule, however, has no im- port if the offending party has already obtained a judgment.
The problem with the widespread use of the fraud-on-the-court doctrine is that courts continue to apply the heightened standard to prove a fraud on the court has occurred, yet the remedies and relief that flow from making such a finding can be entirely different. As one court observed,
When a fraud on the court is shown through clear and convincing evidence to have been committed in an ongoing case, the trial judge has the inherent power to take action in response to the fraudulent conduct. The judge has broad discre- tion to fashion a judicial response warranted by the fraudulent conduct. Dismis- sal of claims or of an entire action may be warranted by the fraud, as may be the entry of a default judgment.237
The First Circuit has examined the options of a federal district judge con- fronted by fraud on the court and has held that federal courts possess the inher- ent power to “order dismissal or default where a litigant has stooped to the level of fraud on the court.”238 It stated the following:
All in all, we find it surpassingly difficult to conceive of a more appropriate use of a court’s inherent power than to protect the sanctity of the judicial process— to combat those who would dare to practice unmitigated fraud upon the court it- self. To deny the existence of such power would, we think, foster the very impo- tency against which the Hazel-Atlas Court specifically warned.239
Rule 60(d)(3), however, only serves one purpose: to “set aside a judgment for fraud on the court.”240 Setting aside a judgment is different from dismissing a claim, an entire action, or entering a default judgment. “[D]ismissal sounds ‘the death knell of the lawsuit’”241 and is an extreme remedy that “must be ex- ercised with restraint and discretion.”242 On the other hand, Rule 60 enables courts to set aside judgments when necessary to accomplish justice and return the parties to the status quo that existed prior to the misconduct. In other words, Rule 60(d)(3) does not mandate a court to set aside a judgment and dismiss the entire case with prejudice. While dismissal with prejudice is certainly an op- tion,243 it is not a mandate created by Rule 60(d)(3). Courts repeatedly hold that
235 FED. R. CIV. P. 41(b).
237 Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 638 N.E.2d 29, 31 (Mass. 1994) (emphasis
238 Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1119 (1st Cir. 1989).
240 FED. R. CIV. P. 60(d)(3).
241 Aoude, 892 F.2d at 1118.
242 Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).
243 See, e.g., Root Refining Co. v. Universal Oil Prods. Co., 169 F.2d 514, 534–35 (3d Cir.
1948) (stating that “[t]he records of the courts must be purged and the judgments in Univer- sal’s favor, both in this court and in the District Court, must be vacated and the suits by Uni-
16 NEV. L. J. 707, HAGUE - FINAL.DOCX 4/12/16 6:31 PM
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cases are to be tried on the merits if possible.244 Thus, based on the indiscretion at issue, courts may set aside the judgment and additionally take any of the fol- lowing actions: (1) require a trial on the merits unblemished by the misconduct, (2) sanction the offending party, (3) dismiss a particular cause of action, or (4) dismiss the entire proceeding with prejudice.
The bottom line is that fraud on the court can take many forms and the standard for setting aside a judgment for fraud on the court under Rule 60(d) ought to be flexible. The options afforded to courts confronted by attorney mis- conduct suggest that courts can and should focus on the egregiousness of the conduct and the relief being sought. While some misconduct might fall short of furnishing a basis for setting aside a judgment and dismissal with prejudice, other indiscretions may warrant such a harsh remedy. Courts possess plenary authority “to manage their own affairs so as to achieve the orderly and expedi- tious disposition of cases.”245 As a result, examination of the options of the court confronted by misconduct—whether that is taking additional steps be- yond setting aside the judgment such as ordering dismissal or imposing sanc- tions—is an important component to process litigation to a just and equitable conclusion.
E. Illustration of the Four-Part Test
The Fallini case cited above provides a logical illustration of the four-part test for several reasons. First, it involved alleged misconduct by an officer of the court.246 Second, the alleged misconduct originated during the discovery process.247 Third, the attorney abandoned the victim when the misconduct tran- spired.248 And finally, the conduct caused the court not to perform in the usual manner its impartial task of adjudging the case, because the court never heard the merits, but instead entered an order based on a false admission.249
In order to address the misconduct in Fallini, the victim hired a new attor- ney and on May 21, 2014, filed a motion for relief from judgment under Rule 60. It alleged that plaintiff’s counsel “knowingly forced fraudulent facts on the
versal must be finally dismissed. No principle is better settled than the maxim that he who comes into equity must come with clean hands and keep them clean throughout the course of the litigation, and that if he violates this rule, he must be denied all relief whatever may have been the merits of his claim”).
244 See, e.g., Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) (stating that “cas- es should be tried on the merits rather than the technicalities of pleadings”) (citation omit- ted).
245 Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962).
246 Estate of Adams v. Fallini, No. CV 24539 (Nev. 5th Dist. Ct. Aug. 6, 2014), at 1 (court
247 Id. at 3.
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740 NEVADA LAW JOURNAL [Vol. 16:707 court and failed to correct misrepresentations thereby committing fraud upon
1. The Offending Party and His Duty
The court, in addressing whether fraud on the court occurred under Rule 60, focused on the offending party—plaintiff’s lawyer—and noted that “as an officer of the court, [he] had a duty to not mislead the court or fail to correct a misrepresentation.”251 It held that “[s]imple dishonesty of any attorney is so damaging on courts and litigants that it is considered fraud upon the court.”252 And, citing to rules of professional conduct, the court further held that “[a]n of- ficer of the court perpetrates fraud on the court a) through an act that is calcu- lated to mislead the court or b) by failing to correct a misrepresentation or re- tract false evidence submitted to the court.”253
2. The Conduct
The court next focused on the conduct at issue. Interestingly, the attorney in Fallini denied knowing that the accident occurred on open range,254 which may have been an attempt to refute that any intentional misconduct occurred. After considering the evidence, however, the court found that the attorney “knew or should have known the accident occurred on open range prior to filing his request for admissions.”255 The court also found that “[a]t the bare mini- mum, [the attorney] possessed enough information to conduct a reasonable in- quiry into the open range status of the location where the accident occurred.”256 Despite this knowledge, the attorney sought an admission from Fallini stating that the area where the accident occurred was not open range, a false fact that was deemed admitted when Fallini’s attorney failed to respond.257
Thus, as an officer of the court, the attorney violated his duty of candor un- der the rules of professional conduct “by utilizing Defendant’s denial that the accident occurred on open range to obtain a favorable ruling in the form of an unopposed award of summary judgment.”258 Consequently, the court found a violation of Rule 60(b) because “Plaintiff’s request for admission of a known fact, a fact that was a central component of Defendant’s case, was done when
at 1. at 7. at 6.
at 7. (emphasis added). (emphasis added).
at 5. at 8.
16 NEV. L. J. 707, HAGUE - FINAL.DOCX 4/12/16 6:31 PM
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range, thereby perpetrating fraud upon the court.”259
3. The Victim
The court also considered the victim in this case. It noted that the attorney who committed the fraud on the court “may argue that all [Fallini’s prior attor- ney] had to do was simply ‘deny’ the request for admissions.”260 While this is certainly true, the court took special consideration of the fact that Fallini’s prior attorney failed “to respond to various motions and requests to the extent that [plaintiff’s attorney] knew or should have known that a response from [Fallini’s attorney] was unlikely.”261
The court also recognized the maxim the Supreme Court expressed in Ha- zel-Atlas: the fraud-on-the-court rule should be characterized by flexibility and an ability to meet new situations demanding equitable intervention.262 The court clearly considered and accepted the inequities of the case, as it acknowl- edged that “one cannot ignore the apparent injustice that Defendant has suf- fered throughout this matter. Ms. Fallini [was] responsible for a multi-million dollar judgment without the merits of the case even being addressed.”263 In oth- er words, it was significant to the court that Fallini’s attorney had abandoned her, and this certainly influenced, at least in part, the court’s decision to set aside the judgment due to a fraud on the court.
4. The Relief
The court recognized that “[f]inality has a particular importance in our le- gal system.”264 However, it also noted that a final judgment is one “that dispos- es of the issues presented in the case, determines the costs, and leaves nothing for future consideration of the court.”265 But “the issues presented in this case were summarily disposed above due to the negligence of Defendant’s counsel . . . [and] [t]he merits of the case were never actually addressed.”266 Again, rec- ognizing the victim’s status, the court found that had Fallini’s attorney “proper- ly denied the improper request for admissions, the outcome may have been much different.”267
The court’s order states several times throughout that “cases are to be heard on the merits if possible” and that Fallini was unjustly punished without the
259 Id. (emphasis added).
263 Id. at 9.
264 Id. at 10.
265 Id. (quoting Alper v. Posin, 363 P.2d 502, 503 (1961)).
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merits of the case ever being addressed.268 In addition to its express authority to set aside the judgment under Rule 60, the court clearly had the authority to or- der further relief, such as sanctions or dismissal with prejudice.269 Pursuant to the court’s Order Granting Motion for Entry of Final Judgment and Dismissing Case with Prejudice, the court entered final judgment in favor of Fallini and dismissed the case with prejudice.270
While finality of judgment matters, no worthwhile interest is served in pro- tecting judgments obtained by misconduct. The Federal Rules of Civil Proce- dure contemplate liberal discovery, but the potential for discovery abuse is ev- er-present. There are rules in place to remedy abusive discovery, yet those rules are only functional during litigation—they serve no purpose post-judgment. Thus, cheaters are prospering under the judicial system, especially against vul- nerable victims that lack both the skill and knowledge to adequately prepare a defense or thwart the abusive conduct before an unfavorable judgment is ren- dered.
Rule 60(d)(3), however, allows a court to set aside judgments—judgments obtained years earlier—which have been secured by a fraud on the court. But to succeed in setting aside a judgment, several courts require a showing, by clear and convincing evidence, of intentional fraudulent conduct specifically directed at the court itself. This standard is too high. If federal courts were compelled to follow this standard, nearly every claim of abusive discovery would fail. How- ever, the remedial and equitable nature of the fraud-on-the-court doctrine and the great public policy that it embodies militates against making that burden an impossible hurdle for victims of abusive discovery.
Fraud on the court can take many forms. Fortunately, the fraud-on-the- court rule that the United States Supreme Court articulated in Hazel-Atlas should be characterized by flexibility and an ability to meet new situations de- manding equitable intervention. The equitable and flexible nature of the rule supports the contention that the current standard for evaluating fraud on the court is flawed. The four-step step process outlined above—with the ultimate inquiry of whether the abusive conduct caused the court not to perform in the usual manner its impartial task of adjudging cases—further facilitates a court’s inherent power to do whatever is reasonably necessary to deter abuse of the ju- dicial process.
268 Id. at 9 (quoting Passarelli v. J-Mar Dev., Inc., 720 P.2d 1221, 1223 (Nev. 1986)).
269 See, e.g., Rule 41 and 11 discussed supra Parts III.B, III.D.
270 Order Granting Motion for Entry of Final Judgment and Dismissing Case with Prejudice
at 2, Estate of Adams v. Fallini, No. CV 24539 (Nev. 5th Dist. Ct. Apr. 17, 2015).
Dear Mom's of Sandy Hook,
I'm sending my best, love and support from Manhattan, however I do get to Newtown about every other week. Back on the 21st of December- the night of the Vigil, I first came to offer my support.
A few nights before, I watched a special about a similiar event in Dubane Scotland, and was comforted to learn that the way Dubane was able to move forward was that they had built a children's center. I run a 15 year old children's foundation and have the resources to immediately facilitate such a venture. Even before leaving Manhattan, I called my billionaire hedge fund buddy and asked for his support, as well as celebrities from Ricky Martin, Juliane Moore, to Bravos Andy Cohen. Again, I explained I was heading to Sandy Hook to build a children's center and within 2 hours of my arrival I had my permission. I was first asked if I wanted to break ground or rehab some of the empty buildings there at the vigil site. I then began to express the reason for my participation/ involvement and closed with I actually had no choice.
Violently, senselessly, and also prematurely my immediate family suffered the loss of two siblings. One as a result of childhood abuse, and the other a suicide very common with football players who've suffered head trauma due to concussions. We know loss, as Newtown knows loss. And although I never could compare the two, loss is loss and with that comes with a whole slew of reactionary effects. In addition, i lost a child hood hero who was also gunned down, and the person I was planning on spending my life with was on the plane that took down The World Trade Center. My family has not been the same and one could argue it destroyed our family. My oldest sister's marriage failed as a result, and its a wonder the remaining are alive this day as depression, acting out, and anger defined us for a time. I found solace in my dedication to others/humanity and used the skills learned to cope and facts I learned along the way to establish a national children's foundation- making my entire life that of service.
So, I told the town accessor who had become in charge of the donations and such that as much as I'd love to be the one identified with the center and acknowledged for my commitments, its not about me. And further more, I am still an outsider. I proposed a family step forward and I'm proud to say the Kowalski's are that family, and I will see to it that there every wish is granted. Envision a center where we honor those lost and help those left behind heal.
The proposed project is slated to become Chase's Place and will honor all those lost that fateful day and again help those left behind heal.
We have a billionaire hedge fund guy who's generously pledged a billion dollars to non profit/charities who's been very generous and good to us so far.. We have a family relationship with the new CEO of Citibank, so corporate sponsors wont be a problem. We have celebrity interest from a dozen plus A list personalities, and relationships with well known retailers that will afford our earning our own funding for operational costs, so you can be sure 96% of all monies raised will go directly to the center.
Essentially, what I'm able to do is expedite the process using first hand knowledge I've learned throughout the years. I'm here to help and with a 6 month anniversary right around the corner, I also wanted to ensure you we around the globe have not forgotten, and we are here for you whenever is needed.
To all the mom's thank you for bring the unsung hero, you are and always will be our MVP. For those of you who lost immediately, the absence will remain with a sense of emptiness. Only time will lessen this horrific traumatizing life disturbing anguish you feel. And the only way for evil to not win is to go forward finding and holding on to the fact that anything can be learned from and how you go forward will define you.
I was raped by a neighbor 37 years old to my 11. When I had courage to seek help, my priest later used information I shared personally and confidentially only to then become victimized/ assaulted again. I however will not allow for another to define me. My sister hadn't had the fight I have and succumbed.
By Alexandra Natapoff
Ms. Natapoff is a visiting law professor at Harvard Law School.
American voters have realized that prosecutors hold the keys to a fairer criminal justice system. In November’s elections, they replaced numerous incumbents with reformers who promised to reduce mass incarceration, its exorbitant costs and its racial disparities. Prosecutors are central to solving these problems because they control two of the most important decisions in the criminal process: who will be charged with a crime and what that criminal charge will be.
But in practice they do not decide alone. In the enormous world of misdemeanor processing, the police quietly wield a lot of prosecutorial authority. So for voters seeking change, switching prosecutors is only a partial solution.
In hundreds of misdemeanor courts in at least 14 states, police officers can file criminal charges and handle court cases, acting as prosecutor as well as witness and negotiator. People must defend themselves against, or work out plea deals with, the same police officers who arrested them for low-level offenses like shoplifting or trespassing.
Consider South Carolina, where most of the 400 magistrate and municipal courts had no prosecuting attorneys, according to a 2017 study by the National Association of Criminal Defense Lawyers. The police prosecuted their own misdemeanor arrests, while 90 percent of defendants had no lawyers and so faced the arresting officer-prosecutor on their own. South Carolina also does not require its lower-court judges to be lawyers, so thousands of convictions occur without input from a single attorney.
The police in other states can end up as de facto prosecutors, even without formal charging authority. Prosecutors typically lack the time and resources to screen hundreds of minor arrests, and so most arrests are routinely prosecuted. This lack of initial screening manifests in low declination rates — the rate at which prosecutors “decline” arrests and decide not to bring formal criminal charges.
In Mecklenburg, N.C., for example, the prosecutorial declination rate for drug offenses was only 4 percent, according to a study by the Vera Institute of Justice. For drug offenses brought against African-American women at the time, it was zero; every single arrest became a formal criminal charge. In Texas, the non-traffic misdemeanor declination rate in municipal court was around 8 percent in 2015. In Alaska, it was less than 4 percent. In jurisdictions with such low declination rates, over 90 percent of arrests convert to criminal charges without much scrutiny; getting arrested is tantamount to being charged with a crime.
In contrast, federal prosecutors decline about one-third of felony cases, and some jurisdictions screen misdemeanors more rigorously too. In Baltimore, prosecutors decline over 20 percent of disorderly conduct and disturbing-the-peace arrests at the jail, sending people home before anyone has to go to court. The Bronx district attorney decided to stop prosecuting trespass arrests in 2012 based on police reports alone. Two years later, the Brooklyn district attorney began declining many marijuana possession arrests. In November, Rachael Rollins became Boston’s first female African-American district attorney based partly on her campaign promise to automatically decline 15 types of minor crimes such as disorderly conduct and drug possession.
In places like those, prosecutors are performing the vital gatekeeping role that has earned them such broad discretion. But when prosecutors do not screen thoroughly, the police become accidental prosecutors, deciding, in effect, not only who will be arrested but also who will be charged with a crime.
A minor criminal charge can have ruinous consequences. People accused of misdemeanors are under heavy pressure to plead guilty, especially if they are incarcerated and cannot afford bail. Misdemeanor defendants often do not get lawyers and must make crucial decisions without legal advice.
While charges are pending, they may lose their jobs, disrupt their child care or risk their immigration status. Even when cases are dismissed, as about one-third of misdemeanor charges eventually are, defendants must still resist pressures to plead guilty, for weeks or even months.
If cases are not dismissed, well over 90 percent of defendants will plead guilty. They will then struggle with fines, probation, perhaps jail, and permanent criminal records that can derail their future employment, housing and education. It turns out that simply being arrested and charged with a minor offense is a long and painful step toward being convicted of one.
Those initial police decisions are crucial in another way: Arrests determine who will end up in the misdemeanor pipeline. African-Americans make up nearly 30 percent of national misdemeanor arrests although they represent some 12 percent of the population. Marijuana arrests are especially skewed by race; blacks are four times more likely than whites to be arrested for possession, even though the two groups use marijuana at the same rates. In many cities, people of color are disproportionately arrested for jaywalking, disorderly conduct and resisting arrest. These racially skewed policing decisions begin an official process that formally criminalizes millions of people of color every year.
That enormous misdemeanor process constitutes the bulk of the American criminal system. Thirteen million misdemeanor cases are filed annually — that’s 80 percent of all state criminal dockets. This is how our criminal system works most of the time, for the most people.
There are many ways that the police and prosecutors can improve the misdemeanor system, mostly by shrinking it. The police can deploy low-level arrests less often and in more targeted and strategic ways, as many community policing programs already do. And they can focus on reducing racial disparities.
Prosecutors should devote more time and resources to screening misdemeanors so that minor arrests do not become criminal charges so easily and so often. The ultimate aim — and the thing voters should demand in the next election — is to ease the flood of misdemeanor arrests and convictions that quietly derails millions of people’s lives every year and that exacerbates some of the worst injustices of our criminal system.
Alexandra Natapoff is a visiting law professor at Harvard Law School and a law professor at the University of California, Irvine School of Law. She is the author of the forthcoming book “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal.”
P E R J U R Y.
Our court system is a joke as they are often manipulated by malicious prosecutors like Anjelica Gregory who "Suborned Perjury" + like Brent Ferguson who committed "Fraud on the Court."
And why not? Our Supreme Court Justices themselves perjure, and the NY Court of Appeals over-looks irrefutable proof.
Prosecutors often bend laws/break in order to win bad convictions.
We are grateful to Governor Cuomo for his newly appointed Commission of Prosecutor Accountability.
*Anjelica Gregory lost her job within days of a Suborn Perjury complaint was made public.
To our 37+ MILLION friends + supporters, AND our estimated 1MILLION new visitors + supporters each month,
Manhattan DA Suborns Perjury And Brooke LIED after a Disorderly Conduct was refused.
Cy Vance’s office opportunistically targeted a Sandy Hook First Responder for responding and manipulated actress/model Brooke into lying on stand.
*Ms. Shields is on record asking that NO CHARGES be filed, nor harm to come.
Perjury is a CRIME, NOT A TACTIC.
IN OUR 30 YEARS WE ARE SUPPORTED BY/WORKED WITH::
ABC’s The View + GMA.
NBC’s Today Show
Sarah Jessica Parker
to name a few.
The Manhattan DA offered a Disordly Conduct over our work for Newtown after the Sandy Hook Massacre. Specifically the Hallmark Cards c0-sponsored tree trimming event held in Newtown on its first Anniversary.
Unlike the Manhattan DA, we would NOT perjure ourselves into accepting Sandy Hook as harassment.
The Manhattan DA acted on behalf of an individual who says in her paranoia, she holds onto a list of some 2000 people who she’s somehow made fearful by.
*One in particular was made out to be a stalker despite his being gay, offered up a list of 4boyfriends at the time, dozens of witnesses. and computer forensics that claim otherwise.
*Computer Forensics also proved that Ms. Shields was in fact a liar as it disproved her every word of testimony.
Without any bit of professionalism and a suspected high profile win, Cy Vance’s office acted without merit and recreated the past to fit their narrative Upon learning the Manhattan DA made a mistake, ADA Anjelica Gregory offered a slap on the wrist if we lied. When we refused, the Manhattan DA "Suborned Perjury" from Brooke Shields to manipulate the court by committing "Fraud on the Court." and committed the same crime to the New York Court of Appeals.
***WHEN ADA’s SUBORN PERJURY, COURT OF APPEALS IS RENDERED USELESS.
TY for visiting.
Our efforts have never been about us, but all about our answering the call asked upon an entire nation after the most horrific assault on our children.
There has been a lot of confusion about us, and therefore a constant need to defend has been warranted. While we have tried our best to understand the egregious criminal actions made against us by the Manhattan DA, Cy Vance in our opinion is nothing more than a thug opportunistically abusing his power in office.
That said, I’m not sure how long I have, but the time I do have is dedicated towards something better/bigger than ourselves. It’s also meant to serve as a constant reminder to my little boy who will undoubtedly be left behind.
Tbe message being that we cannot control what happens to us, but we can decide in which direction to proceed. Its also about when we cannot find peace within ourselves, we can always find peace in selflessly doing for others.
in 1986, I was struck and hit as a pedestrian by a drunk driver. As a result, I suffer a considerable TBI/traumatic brain injury. So, before I disappear permanently, there’s been an anxious determination of my working against the clock.
Our goal being a legacy of ensuring our nation’s children are better protected.
After Sandy Hook suffered on 12/14/12, on that day, I held my then 4year old in my arms and cried- I cried thinking of the 20 families that no longer had their child to hold and felt an overwhelming need to answer our nation’s call of kindness. I also understood that the tragedy went beyond the irresponsible gun laws of our greedy America, but that these horrors were also the result of the bullying and isolation so many of our youth’s needlessly feel.
We took on such a huge undertaking because we’re told that we all matter, and to be honest, believe we can all be the change we wish to seek.
The world needs to be better for our children, and we cannot sit idly by.
We can also not allow bully’s prevail- not even a Cy Vance and his criminal band of idiots!
ALL THIS BS, has been the result of our Sandy Hook first anniversary and our inviting actress Brooke Shields to attend. We knew her, her mother was friends with my dad, and Ms. Shields’ husband Chris Henchy was also the one to reconnect us back in 2002. In fact, Mr. Henchy dragged me across the room inhand to meet his more famous wife. Incidentally, they both hugged me and I returned with a “Rocky” like playful jab! Broole not only declined, but she was also skeptical about our legitimacy. Ms. Shields actually testified that Sandy Hook was about her, and not 26lives slaughtered! She didn’t want any charges, but she did responsibly begin a file should things get questionable. The Manhattan DA opportunistically saw an easy high profile win of harrasment by suggesting improprieties. NYPD’s 6th Precinct then looked up our car’s registration and saw that it was registered to a legitimate NY 501c3, but still chose to “create” harassment. Upon our defense, they maliciously “Stacked” charges to force a perjured plea. Simply put, we told the Manhattan DA to go fuck himself which then his office “Suborned Perjury” coaching actress/model Brooke Shields and her husband to commit perjury.
We’ve also spoke out with great success! When we were first assaulted by the NYPD, and falsely targeted we had 100,000+ followers/friends. We now have more than 37MILLION followers/friends.
Our medsage is this, we DEMAND Gun Reform to better protect our children. While we cannot always be there for our children, we can however ensure all safeties are in effect.
Today 11.18.2018, we had a Twitter war with Ryan Graney- who claims to be a representative of Vicki Soto.
Ryan Graney is awful. She's as awful today as she was in 2013 when we first released the Hallmark collaboration- a collaboration that honors each life lost at Sandy Hook Elementary School by creating 26 one-of-a-kind ornaments that honored each life senselessly take at the Sandy Hook Elementary School shooting. It's also a design still sold today in Hallmark cards nation wide each Christmas.
Ryan Graney is vindictive, spiteful, and now a bona-fide Sandy Hook conspiracist. All anyone needs to do is check out her bullying/harassment Twitter accounts @RyanEGraney or @TeamVickiSoto to see what kind of person she really is.
We were invited to be a part of the Newtown community by Newtown leaders, introduced to a Sandy Hook family, and attended most meetings surrounding the building of the 2012 proposed, and approved, Center.
Its modeled after Dunblane, Scotland’s primary school that suffered similarly to Sandy Hook. Within a year of Dunblane’s mas-Shooting, we had hoped to change gun laws in America.
But, WE get hyper-vigilant Alex-Jones-type conspiracists who stalk through phone, text, tweet + more.
Together with Hallmark, we created 26 one-of-a-kind ornaments that first hung on the original Sandy Hook Memorial on Sandy Hook’s First Anniversary (seen above.) From there they were sent to the White House under First Lady Michelle Obama and her team to hang on one of the First tree’s. They were sent- all but Vicki Soto’s, her team did not want to participate. The next year we worked on a moment of silence with ABC’s The View, to be hosted by actress Sarah Jessica Parker. Through that effort, we were on the show, became friends with he Executive Producer (a friendship that remains today). The co-hosts has even made us promise they'd be provided the first updates. (additional direct contact with the ladies is still preserved today) All 25 ornaments were sent. All, except Vicki Soto’s. The year after that they were sent to ellen- all but Vicki Soto’s. A close friend of 30years is an ellen show creator, and who doesn't love ellen.
Ryan Graney was so difficult to work with back in 2013, that we can see why she too is now considered a Sandy Hook Conspiracist. She shouts to the world, that I’m Brooke Shield’s stalker- which is good because it allows me to then state to the world that Brooke committed perjured in court. I can say this without any recourse because she knows she lied, her husband knows and lied himself, the DA knows she lied because the ADA who “Suborned Perjury” has since lost her job after a “Suborn Perjury” complaint was filed.
We understand being over-protective, and appreciate the opportunity to explain. But, this woman, Ryan Graney is crazy- antagonizing any and everyone in her way just enough to make them "slip-" meaning just enough for her victims to make a mistake out of upset so they then become in default and lose their footing.
Lets make one thing clear, we simply offered up a parking spot. And when an ordinary and playful gesture was made, a pissing match ensued. I then "slipped' up, and asked Ms. Shields' assistant to NOT vandalize my car- the same car who's spot was offered up that set this whole shit-storm ablaze. I made one mistake- actually two. First, the assistant is this rather large, nightmarish individual who looks like a giant lady. I simply asked the man to NOT touch my car. That was my first mistake. The second, I shouldn't have responded on Twitter. But, I did! Admittedly, I did it for followers as all America now does. At the time of Brooke's assistant's assault on my car, I name Harvey after my beloved Harvey Spekter, Sandy Hook Center had 100,000 "likes" on our web-site. After publishing my feud with Brooke we grew our support to now over 37+ Million. However, it bit us in our friggen' ass because BROOKE COMMITTED PERJURY.
Yes, anyone who can say what is true. If it wasn't I'd be charged with libel. BUT BROOKE lied.
WHY you ask?
Brooke lied because I was adamant in my defense- I DID NOT harass.
She believed that since I told her assistant to NOT touch my car that some how I had actually known. Ms. Shields used that comment to state that I had followed her to the pier that day. When in fact I had just assumed the "faggy" assistant was the one who vandalized my car. I was in fact several miles away at the pre-scheduled- therefore able to offer an alibi. OR simply put, this was one of Ms. Shields willful, and knowledgeable perjuries.
We came to Newtown because we were called to. America rallied behind us after 9/11, and we rallied behind Newtown after Sandy Hook.
We know loss- we lost 3siblings to senseless violence, and a boyfriend disintegrated in the sky above me on 9/11. Had I not become an advocate, I’d have no reason to be here whatsoever. But, dedicating a life to service is in itself the greatest reward and immense comfort.
Ms. Graney suggests that since we are outsiders, we have no place in Newtown. It’s called humanity, and paying it forward. The world opened their arms to us after 9/11, and we repaid it to Newtown.
*Incidentally, Ms. Graney is not in Newtown, she’s somewhere wherever her broom flies to- she claims Nashville.
In 2015, we did hire a Newtown father as COO. But, Ms. Shields via Cy Vance abuse sidelined that.
The result! Newtown Community CenTer honoring Newtown and their elderly- without mention of the 26 families. Sadly, for over a year and a half, I had made a promise to Rebecca Kowalski that the families would be considered first. We obviously had failed. There is still our commitment to seeing the Sandy Hook CenTer come to fruition. After all, it’s the very reason I stood up to an abusive prosecutor and refused a technical slap on the wrist. An unwarranted, and exaggerated slap- but a slap indeed!
Through GH our leadership and mentorship we had the resources to build a center the day of the shooting. In fact our advisors were Bill Ackman of Pershing Sq. Foundation.
*They are responsible for New York City’s Highline, amongst other things.
“Be The Change!”
They say, “be the change, so when called to action, we did so without thought or family sacrifice- sacrifice that cost us two lives.
This is NOT a business site as it’s been explained time and time again- we had www.SandyHookCenTer.com for that. The official site was scheduled to launch September 2015. It was also to be our official launch after the re-opening of the Sandy Hook Elementary School in the fall of 2015.
This site here, is an informative extension and has served us well with full transparency.
Agsin, unfortunately, an evil monster from a blue lagoon mistook our efforts, specifically our Hallmark collaboration as questionable simply because we didn’t solicit funding. As a result, we were then subject to malicious prosecution and “Stacked” into a Disorderly Conduct. When we refused to perjure a plea, ADA Anjelica Gregory Suborned Perjury manipulating actress/model Brooke Shields + her husband to commit perjury.
The same DA who refused to charge Weinstein, nor Trump Children and came under scrutiny of questionable donations.
Out of spite, they turned a slap-in-the-wrist into a harassment case and won by Suborning Perjury.
We were told that Sandy Hook wasn’t about us, and it’s not!
It’s About Us All.
Columbine inspired Sandy Hook, and since Sandy Hook didn’t inspire #GunReform, we have Mass-Shootings daily- TWO actually today!
I advocate because we- my family has lost 3 siblings to violence and I lost a spouse on flight 175 who literally disinitigrated in the sky above me.
Graham and I had just spent the summer on the Cape, and I was moving to Appleton St. in Boston.
*'computer forensics-computers +phone for the past 15years that contradicted both Brooke and her husband Chris’ sworn testimony.
Newtown, you are more than welcome to www.SandyHookCenTer.com, our Twitter, and our political, celebrity, + business support. We don’t care who achieves gun reform, as long as it gets done!
Sandy Hook is about us all- every school shooting since has had Sandy Hook on their mind- how could it not be?It terrorized a nation- a world. There's a reason that mass-shootings have become a pandemic- the irrelevant seek relevance through infamy.
According to the CDC, notoriety is its greatest impetus. It’s also no coincidence that mass-shootings happen every day- twice today as I’ve said.
TRUST ME, I’d rather do literally anything else than advocate for our children’s safety, but little progress has been made.
I’d also like my family back!
I do have a question.
We’ve been working with Ambassador Al Hoffman Jr. on a campaign to address Gun Reform with Congress.
We’ve been working with the McGruff team about updating their “take a bite out of crime campaign” to include a PSA about “Locking Up” guns around the house.
We’ve also been working with Lionel Richie and Quincy Jones about a re-release of “We Are The World NEVERAGAIN.”
We are also modeled after Dunblane CenTer and have renamed our build to Sandy Hook CenTer our of solidarity.
Would Weebly be interested in helping us build an actual professional site?
Our current Sandy Hook CenTer was meant to add further dialogue to correspondence, via phone or email.
If you check our records we operated SandyHookCenTer.org which was to officially launch the fall of 2015 after the Sandy Hook Elementary School re-opened.
These projects must all get underway if we are ever to influence our country to attain gun reform. The biggest obstacle we’ve found has been all the misconceptions that we believe are fueled by the NRA strong arming Americans for greed.
America should put people over greed, but simple basic humanity isn’t enough. We need to enlighten through essential insight.
Please contact me at your earliest convenience.
John M. Rinaldi.
Why Emmett Till’s case matters to American history and our future?
Whenever there’s an imbalance of power,
JUSTICE IS NEVER SERVED.
Brooke Shields is our
Carolyn Bryant Dohnam, a privileged white woman who lied, and destroyed lives in the process.
ITS IMPORTANT TO MENTION:
Brooke Shields wasn’t intending to destroy, in fact in testimony, Ms. Shields is quoted saying she hadn’t wanted any charges filed. She just wanted to create a record in case there was an actual problem.
Apparently, Ms. Shields has had to contend with a lot of unwanted attention. I support any vigilance! However, I do NOT appreciate her self describing hyper- vigilance.
“Hypervigilance is an enhanced state of sensory sensitivity accompanied by an exaggerated intensity of behaviors whose purpose is to detect activity.
Hypervigilance may bring about a state of increased anxiety which can cause exhaustion. Other symptoms include: abnormally increased arousal, a high responsiveness to stimuli, and a constant scanning of the environment.
In hypervigilance, there is a perpetual scanning of the environment to search for sights, sounds, people, behaviors, smells, or anything else that is reminiscent of activity, threat or trauma. The individual is placed on high alert in order to be certain danger is not near. Hypervigilance can lead to a variety of obsessive behavior patterns, as well as producing difficulties with social interaction and relationships.
Hypervigilance can be a symptom of post traumatic stress disorder (PTSD) and various types of anxiety disorders and a paranoia.
Hypervigilance is differentiated from dysphoric hyperarousal in that the person remains cogent and aware of their surroundings. In dysphoric hyperarousal, a person with PTSD may lose contact with reality and re-experience the traumatic event verbatim. Where there have been multiple traumas, a person may become hypervigilant and suffer severe anxiety attacks intense enough to induce a delusional state where the effects of related traumas overlap.”
In Brooke’s recent biography, she self explains her own difficulties of mental illness. So much in fact that it led to her having to showering at college in a bathing suit, an uncontrollable need to control that left one child disfigured, her pulling over while driving with her babies out of fear of an intentional crash, and visions of throwing her babies out an apartment window.
We’d like to think Ms. Shields is not evil, but she is in fact untruthful.
The real problem here is justice- or the lack of!
Prosecutors are rarely held accountable which is why these last few years in New York, we’ve seen unpalatable abuse in New York’s highest two law enforcement agencies- the Attorney General, and District Attorney.
Mr. Eric Schneiderman’s abuse existed both in and out of office and had been forced to concede. We have seen the “Pay-For-Play” mentality of the Manhattan DA that caused an influx of write in candidates in the recent election. So much so that Justice Advocate Shaun King has created a national movement for prosecutor accountability. It’s safe to say that this will most definitely be Cy Vance’s last years in office terrifying New Yorkers.
I’m proud to say I joined Mr. Fliedner in his recent District Attorney election campaign that garnered such support of many Hollywood advocates like Piper Perabo. I reached out to my supporters as well and added Patricia Arquette, Rosie O’Donnel, and several others. The New York Post was also quick to narrate a “bromance” with Mr. Fliedner and myself after we publicly discussed holding Suborn Perjuring Prosecutors accountable.
The problem is not Brooke Shields- although she didn’t have to commit perjury, she has children and must remain vigilant. However, hyper-vigilance according to the CDC, is a form of mental illness.
We believe she was a pawn of an opportunist District Attorney.
I also believe she lied in court to be spiteful. I had referenced Brooke’s god-mother Lila Wisdom and implied a relationship after dating a former boss of Ms. Wisdom’s. I was told Ms. Wisdom presented Teri as her girlfriend, and somehow Brooke wasn’t pleased. Brooke also didn’t like the fact that Brooke was also corrected at her AOLBuild event. Brooke told her invited audience that her mother was insecure. I warmly told her that she wasn’t to me or my family and she was a force to be reckoned with. She worked alongside my family tirelessly that led to my childhood abuser being held accountable and eventually prosecuted.
Brooke didn’t like either.
Preparing for this case, it was uncovered that Ms. Shields pays her god mother a monthly salary. I believe it’s alimony and part of her and Teri’s separation. As I said, I dated a former boss of Ms. Wisdom’s and that was everyone’s understanding. Mrs. Shields also confided in a man who woukdckater become a very close friend.
Brooke lied in court.
That’s what I know- it’s what I’ve proved.
As I learned that I was going to be unjustly charged, I panicked. There was nothing questionable in my behavior and Sandy Hook was certainly a cause to rally behind. To secure a professional standing, I had sent a letter to a PMK Publicity in NY. Having been involved in non-profit since 1991, we had worked with PMK back in 2003. We planned an event for actress Nicole Kidman honoring her work in The Hours and both she and the film’s courage in its superb story telling addressing mental illness. The film discussed a subject that afflicts many individuals, and we honored its impact and applauded the film’s reach- a reach that would take us- if ever, a lifetime to achieve. With support of the brilliant producer Scott Rubin we planned a cocktail party to follow a screening of the film to honor Ms. Kidman and Scott Rudin’s film “The Hours.”
This is why we enlist celebrity. Celebrity we do not covet- celebrity we respect for its reach. We understand its impact and the ability to solve societal ills through story telling and exposure.
In the PMK letter, I detailed the misunderstanding. described how I was a victim of stalking, Anf that I understood its destruction and declared that I’d never be so violating.
The truth is, I have in my arsenal, leaders in all aspect of the Hollywood community, and never have imposed on any of my friends to succeed.
I talked hockey with Meryl Streep backstage while watching Sir Paul McCartney rehearse. I sat with Christy Brinkley with a 4 year old Alexa Ray on my lap while Billy Joel rehearsed We Didn’t Start The Fire, I was dancing with Gloria Estefan at the Model Cafe in NY and we all had dinner congratulating Jon Secada’s Broadway debut, I met with Shania Twain at her hotel room to then become her Billboard Award date, I discussed child advocacy with Madonna over dinner, I was also Iman’s date to a Sylvester Stallone premier of his film Oscar, years later I was also invited to Thanksgiving Dinner with Iman and David Bowie’s, I was a personal guest of Celine Dion and husband Rene to a private concert at the theater inside Madison Square Garden, I had coffee in La Canada with the Costners, Halle Berry gave me her number after we both worked on the same tv show, and talked Product Placement with Tom Cruise at his Desilu bungalow office on the Paramount lot.
I included Brooke Shields in our work at Sandy Hook, because I was grateful to her mother for her helping a broken kid. I included Brooke Shields in our work at Sandy Hook because she acknowledged to the world at AOLBuild event (seen on YouTube) that she was aware of our work and our intentions and I believed I had her support. She made every indication to the public and there is no discernible reason to have thought otherwise.
The problem is the vast corruption and improprieties of District Attorneys who are not held accountable!
The Manhattan District Attorney has come under great scrutiny for his accepting (and then returning) money from Weinstein and Trump. Many believe its for special considerations. We believe they’re bribes. We believe the alleged corruption has also been extended to Ms. Shields in the form of special “favors.” Brooke’s payment was paid in full by her publicist, Jill Fritzo. Fritzo used the “This Is Us” popularity and offered up her other client Sterling K. Brown to be used as a photo-op with Cy Vance.
After being falsely accused of harassment, and the fraudulent charges “Stacked” into stalking, ADA Anjelica Gregory offered a disorderly conduct after an altercation ensued over a parking spot that left my car vandalized. Had it actually been stalking involving children, than a slap on the wrist would be grossly irresponsible.
This is by definition malicious prosecution, and my only offense is standing up in defense.
The Manhattan DA, trumped up charges and “Stacked” them into stalking which is an irresponsible tactic and are too often used. The reasoning behind tactical “Stacking” is for a prosecutor to intimidate, bully, and force a plea of guilt. It doesn’t matter if there’s actual innocence or guilt, the threat of punishment is supposed to be so unbareable and so severe that the fear alone is enough to force a plea of guilt. 90% of Court cases brought are presented this way, which results of too many unjust guilty pleas. This means lives destroyed.
In New Tork, we have seen prosecutors that will WIN at any cost- including engaging in many unethical and often questionable acts of criminal conduct including but are not limited to “Suborn Perjury” and “Fraud of the Court.”
Ms. Gregory was the subject of a recent Suborn Perjury complaint and within two weeks of her current employer becoming aware, she was no longer employed by Kirkland & Ellis LLP- the world’s 3 largest Law Firm.
Incidentally, thanks to my contacting the firm, I am now working with Kirkland & Ellis LLP to update the non-profit status of Sandy Hook’s first supporting organization, The Sandy Hook CenTer.
This is also where this nightmare began, in Sandy Hook after the horrific Sandy Hook Elementary School Shooting.
In 2012, with the entire nation’s heart broken, there was a natural call to do an Act of Kindness for Sandy Hook. We came to Newtown on 21 December, 2012 after a week of gathering our resources and support.
We first met with Bill Ackman who provided us his charitable arm of Pershing Square Foundation as a resource and mentorship.
We also met with fellow neighbors:
Sarah Jessica Parker, who along with Farris Buehler himself Matthew Broderick, (Matthew is responsible for our initial philanthropic work some 25 years prior after first meeting at a house party.)
Julianne Moore, who hugs and kisses me.
Ricky Martin, who also kisses me.
Jake Gyllenhaal and his parents over lunch.
And Liv Tyler.
We came to Newtown to do an act of kindness. I knew NBC’s Ann Curry, and decided to one-up-her 1 Act, with 26 Acts.
In Newtown, we came as trauma/PTSD specialists and when we weren’t supporting the shattered family’s, or the broken firemen we could be found taking care of the memorial. Every night between 2am and 6am, we removed broken glass, burnt-out candies, and the withering flowers. With so many visitors- thousands and thousands of visitors, we wanted the mile long memorial as livery and joyful as possible to offset all the broken hearts.
As the memorial came down, the town had decided to destroy the hundreds of thousands of donated stuffed animals, rosaries, letter jackets, and gifts brought to console the many broken hearts. Our belief was there had already been too much damage, and with permission rescued dozens of stuffed animals and keep-sakes.
There was also a team that rescued and the three of us decided to “adopt” these bears out and send them to our several better known supporters.
And we did.
HENRY, originated in Sandy Hook. He was left at the Sandy Hook Memorial in the middle of Sandy Hook Village, just days after the horrific shooting at Sandy Hook Elementary School. Henry stands about 3’ high and stood proudly in the village center that welcomed all the visitors who came with broken hearts.
Henry was the first rescue.
He’s since been animated and is being made into a book. We are currently working with an incredible artist, along with JK Rowling’s charitable arm- Lumos.
Other rescues were sent to:
Anderson Cooper. I was on his daytime television show and gave it to him personally.
Sarah Jessica Parker has one and referred us to her business rep. We then arranged for a PSA for The View.
Liv Tyler has one.
Julianne Moore was given one, but asked us to hold onto him for safe keeping. She promised to attend the forthcoming opening and her involvement going forward.
Dr. Oz has one and had presented it him personally as a guest.
Liv Tyler has one as well.
Each recipient was asked to hold onto the “rescues” while we finalized the 5 April 2016 approved plans to build the Sandy Hook CenTer. At the opening friends of Newtown were asked to then return the ‘rescues’ at the ribbon cutting.
Sandy Hook CenTer was modeled after the Dunblane Centre in Dunblane, Scotland who similarly to Newtown suffered a horrific primary school shooting. In Newtown, we met with visiting leaders of Dunblane, and have since remained in touch.
Justice Carol Edmead,
Justice Matthew Cooper, &
Justice Doris Ling-Cohan
publicly declared that Sandy Hook was not a legitimate cause.
Nor did Supreme Court Justices
Leslie E. Stein or
The problem with District Attorneys is that they are not held accountable. When they “STACK” charges to intimidate and force guilt, their findings are not valid. Despite the terrorization of “Stacking” many of the guilty are not in fact guilty. When you have an abusive acting prosecutor, seeking resolve from an appellate court is then proven unlikely.
Take the recent news events. I cannot mention the event because it’ll cloud the storyline. And whomever wishes to detract from fact will then cloud truths to again and solicit fear. Like what the Manhattan District Attorney has done.
Instead of highlighting the terror and trauma of losing a neighbor to gun violence, that I saw the horror of stalking and it being so upsetting that it caused me to not pursue a career I was formally trained in and ultimately gave up as a result. Despite that I was mentored by the powerful Michael Ovitz, or that I had presidents of studios assisting me, and had Academy Award winning actors pleading with me to remain, I still walked away.
ADA Anjelica Gregory submitted in court that a letter sent to a colleague, and not to Brooke was somehow a threat of violence, just because I mentioned an earlier trauma. Irresponsible and offensively misleading.
In recent events we saw what the result of “Stacking” does. A simple isolated incident of a disagreement is labeled harassment and quickly elevated to stalking for an efficient conviction.
The truth is that the man was harassing, and should have been disciplined accordingly. The truth was that the victim took it to law enforcement after she lost her job. Was she harassed, yes. Would she have reported him had she not lost her job, we don’t know. Was he stalking her? No. He didn’t even want her phone number to call or wished to see her. The man just wanted a friend, and was embarrassed and humiliated after she offended him.
Was he a stalker? No! Stalkers are categorized into four groups based on level of romantic interest.
The news paper however took his forced guilt and proceeded to create a biased sensationalized story meant to create “Click-Bait” to initiate revenue in a struggling medium.
***Its vital that we do not condone any act of violence, and condemn anyone that imposes upon another.
But, if we don’t identify what caused a madman to become the predator he was already labeled, I fear for the many innocents that will suffer/be lost as a result.
Prosecutors often abuse because there is no one holding them accountable. Suffice to say, there is no integrity within the Manhattan District Attorneys office, and don’t be fooled by the Conviction Integrity Unit! According to two former agents of this PR ploy. It’s essentially just a plaque on a door and utterly useless.
It’s important to realize just how broken our judicial system is, and how many lives are destroyed as a result.
Legal Aid NYC, didn’t open the case until a month prior to trial. We listened to four days of perjured testimony and never offered a defense. Judge Kevin McGrath was supposed to be on vacation that day and had metioned a quick end. We were in court Monday through Wednesday, broke for Thurday, and I hung on Friday.
We were here to extend into the following week with Monday bringing in two Sandy Hook families, a Newtown town official (who approved our proposal 21 December 2912) and a newly hired COO. I was refused by my defense attorney Jon Stonbely, and therefore denied a fair trial.
I had no defense and the four days of Perjury was left unchallenged. Which proved fatal for a proper appeal.
In 2012, with support from hedge fund billionaire Bill Ackman and his Pershing Sq. Foundation, we believed we could honor Sandy Hook. We set forward to mirror Dunblane Centre and create Sandy Hook CenTer as tribute.
On Sandy Hooks first anniversary, we partnered with Hallmark and held a tree trimming event in Newtown. The problem arose when the in invites were sent out.. Ms. Shields’ believed it was a rouse to gain her attention- it wasn’t.
Apparently Ms. Shields lived just two blocks away for several years prior to my knowing. In fact, it was after a cover story of Architectural Digest and it being promoted on social media did I even know she lived just two blocks away. It was after that she was approached to assist us in Sandy Hook.
A disagreement ensued over a parking spot, and out of caution she made a report. Things only got out of hand after which I’m defense.
It’s not that Brooke is to blame for her vigilance- it’s the hypervigilance and her lying in court.
Sandy Hook is a legitimate reason for everyone to come together, we failed based on the corruption in the Manhattan DA’s office that led to Ms. Gregory’s departure within two weeks after a Suborn Perjury complaint was filed.
Why is Emmett Till timely, 55years later?
These abuses of power happen every day, and our public defenders are ill equipped to go against a prosecutor who will often engage in criminal conduct to WIN at any cost. This abuse of power cripples our entire judicial process and castrates the appellate courts in the process.
“During my lifetime I have dedicated my life to this struggle of the abused, and have opposed abusers.
I have fought against those who abuse their power, and I have fought for the voices silenced. I have cherished the ideal of a world of unity, and a society in which all persons will live together in harmony and in peace.
It is an ideal for which I hope to live for and to see realised. But, My Lord, if it needs be, it is an ideal for which I am prepared to die.”
Official Complaint: Brent Ferguson, New York State Bar. Assistant District Attorney, City of New York
Brent Ferguson, New York State Bar.
Assistant District Attorney, City of New York
The information contained in this document and it's attachments shall be considered an official Complaint to the State Bar of New York, and provides unequivocal proof of gross prosecutorial misconduct and criminal acts committed by Brent Ferguson, State Bar #
These violations include, but are not limited to the following:
Rule 5-110 Performing the duty of a Member in Government Service
Rule 5-200 Trial Conduct
Rule 5-220 Suppression of Evidence
The State Bar is advised that this document is also provided to the New York State Grand Jury as supplemental information to the formal Public Corruption Complaint filed independently by a collaboration of Human Rights organizations, specifically naming Brent Ferguson, NY State Bar.
The State Bar is distinctly advised that the prosecutorial misconducts and criminal acts of Mr. Brent Ferguson detailed herein are not isolated incidents. They are part of a sustained pattern and course of misconduct, warrants criminal conviction, and necessitate permanent disbarment to protect the people of New York.
A substantial amount of supplemental documentation will be provided to the State Bar, the New York State Grand Jury, the Center for Prosecutorial Integrity, the Attorney General of New York, and other Human Rights Organizations investigating Brent Ferguson, New York State Bar.
BACKGROUND AND SYNOPSIS
"Contrary to defendant's contention, the "reasonable fear" and "no legitimate purpose" elements of the offense were established by the testimony of the complainant and additional eye-witnesses, who testified that defendant repeatedly appeared at and lingered around Shields' home; followed her when she left her house; ignored numerous warnings by family, security and the police to stop contacting her; parked near her home for days at a time and slept in his car; and sent her unwanted communications, including a letter with a shirtless photograph of himself and an email to her publicist in which defendant referenced an actress that had been murdered by a stalker. The court could rationally infer that defendant's conduct was designed to hound, frighten, intimidate and threaten (see People v Stuart, 100 NY2d 412, 428 )."
Mr. Ferguson not only mislead, but fabricated grossly. .
A prior complaint was made against former ADA Ms. Anjelcia Gregory for her role in the initial 2015 case. Within two weeks of the complaint presented to Kirkland & Ellis, Ms. Gregory was no longer an employed by them. .
Mr. Ferguson in the above brief, willfully and knowledgeably committed Fraud of the Courts.
"Fraud on the court occurs when the judicial machinery itself has been tainted, such as when an attorney, who is an officer of the court, is involved in the perpetration of a fraud or makes material misrepresentations to the court. Fraud upon the courtmakes void the orders and judgments of that court."
1. There was no sleeping in the car, it was awaiting street cleaning.
2. The shirtless photograph was an inch x 3/4 inch picture used as logo for a personal correspondence to Dear Friend, to support Sandy Hook, and encourage a clear mission statement.
3. Letter sent to publicist was to preserve a relationship between myself and the agency dating back to 2002. To suggest Rebecca Schaefer as a threat was utterly irresponsible. Ms. Schaefer was shot and killed just two days after I arrived from NT to Los Angeles- on the same block. It scared me, and was a significant reason I quit acting after Rob Reiner’s “A Few Good Men.”
In 2003, Mr. Chris Henchy and I met after a Broadway play. After introducing myself to him, he grabbed me , pulling me across the room and said I had to meet his wife, Brooke Shields personally. There had been a gift sent that she was said to be so in love with that she had told me point blank, 1. It was too nice to share, and 2. It would remain on her bed-room bureau. I was very pleased because throughout my life I had developed a sense of gratitude to the Shields after their stepping in and having my abuser prosecuted. Through Mrs. Shields' kindness, I was no longer of abuse, but a survivor..
After many kind words were exchanged, I gave a friendly man to man pat on his shoulder and said my good-byes.
There was no further communication since 2003 aside from my attending 3 or 4 Broadway shows..
In 2012, after my father had died things of his became more valuable to me. And in 2013 or so I stumbled upon an old gift Mrs. Teri Shields bestowed to me as a kindness.. The loss of a parent is tough, but the loss of a grandparent is especially tragic because this relationship ends when the grandchild is often quite young. Since I was given such a lavish gift of a heart shaped silver frame, I felt obliged to return it to its rightful owner, Brooke with a comment that I thought her eldest daughter would appreciate it more that I. At the time it seemed to be the right thing to do.
In 2014, I received a bulk mailing from Ms. Shields inviting me to several events to which she was to speak on behalf of a book she had previously published. During one event the mc was kind enough to ask if there were any questions, I put my hand up and we spoke of my 'paying it forward' and attributed my philanthropic work to her mother who was kind to a child a long time ago.' Brooke then asked if there was a question, and I just said no. I had only wanted to say thank you. She moved on and before I knew it I had said, yeah I do have a question after-all.. but someone had already begun to speak, and Brooke smiled at me, and I smiled back.
The next event was several hours away and was a book signing at Barnes and Noble. While I joined the line to have my book signed, I didn't solicit a conversation, but when Brooke saw me, she quickly apologized for not getting to me to ask my question. She took it upon herself to engage me, I might add.
In just a few months later, I would run into Ms. Shields in my neighborhood. For the record, Ms. Shields moved within 2blocks of me.. and to run into her in a total of 3 or 4 times over the course of many years seems expected- especially when Ms. Shields lives just two doors down from my pharmacy that I've been patronizing for over 20years.
The quantity and severity of the many criminal acts committed against me has been so expansive, so much so that it has drawn the attention of a number of Human Rights organizations, who have collaborated on a comprehensive investigation and have assisted in the filing of a formal public corruption complaint with the New York City Bar.
The evidence provided herein proves unequivocally that ADA Brent Ferguson of the Manhattan DA's office violated his oath of office, abused public trust, and made a mockery of our judicial system in her relentless pursuit of a criminal conviction.
I'd also like to add Mr. Ferguson is with no moral compass as a result of his arriving to the Manhattan District Attorneys office. Prior to his taking a position at the Manhattan DA’s office, Mr. Ferguson was a notable asset to Brennan Center for Justice, and thought to possess a great deal of integrity.
I'd like to also add that for close to two years, I was repeatedly asked to accept a disorderly conduct. With advise from Assemblyman O'Donnell, I was told not to accept if I was innocent. I was also advised that as long I was fighting a celebrity I would not win with Cy Vance as District Attorney. But, at that point the only thing that was important was the lesson I’d be instilling upon my little boy, 'perjury isn't an option even if it will afford you your freedom.'
Specifically, the facts and evidence herein establish:
Notably, Mr. Ferguson was the Attorney on record who took this case to NY Apelate Court. Throughout his brief, he constantly contradicted himself and flat out fabricated several truths. The biggest travesty was his flat out misrepresentation of facts.
Ms. Anjelica Gregory was already reported for her oath violations and within weeks of my filing was no longer employed by Kirkland & Ellis. Mr. Ferguson’s role herein was essentially his committing Fraud of the Courts.
“Fraud on the court occurs when the judicial machinery itself has been tainted, such as when an attorney, who is an officer of the court, is involved in the perpetration of a fraud or makes material misrepresentations to the court. Fraud upon the court makes void the orders and judgments of that court.”
The assumption of criminal behavior was based on the discovery from an extortion/ consumer site called Rip Off Report. This site defamed me in its accusations of being a child predator and running an illegal non profit. In 2010, thanks to Detective Paul Arroyo, these reviews were proven false. Yet, they remained because reports can not be removed. The only option was to then pay a $5,000- $100,000 service fee to have the reports 'buried.'
I could go on and on, but trust me when I say everything out of Ms Shields and Mr. Henchy's mouths were lies. To prove this any and all my actions and activities were/ are transparent on-line connected with evidentiary proof of no wrong-doing.
FACTS AND EVIDENCE.
GUN CONTROL IS COMING
I have been a gun control activist for over 10 years. Not just control. I have repeatedly advocated for the change of the Second Amendment to NOT INCLUDE Military Grade/Assault Weapons.
After every horrific tragedy in our country, especially Sandy Hook, I believed there would be change. Every time I have been disappointed.
There is something very different this time. Gun Control is going to happen thanks to the millions of High School and college students in this country. Thank you Parkland students. And they will all be voting very very soon!
It will start out slowly. First, there will be Psychiatric checks. Then, criminal background checks. Then age changes from 18 to 21. Then bumper stock restrictions. Then, General Background checks. Then, a ban on all assault weapons. Etc etc etc. It won’t happen tomorrow but I am more confident than ever that it will happen, and happen soon.
We will take your guns away. You say I’m misguided because then only the criminals would have guns and you won’t be able to protect yourself?
How realistic do you think your ability to protect yourself is? A shooter comes into your home with an assault weapon. You need to
(1) get your gun;
(2) unlock it;
(3) reach for your clip
(4) take your ammunition out of your clip
(5) load the gun
(6); pick it up;
(7) aim it;
You would be long dead long before you got to #1.
How often have you actually heard about a person successfully protecting themselves or their family with a gun, against intruders? Certainly not enough to justify widespread use of assault weapons. But we hear about family members blowing their brains out, a child discharging an armed gun, accidentally or purposely killing himself or another family member, car ride-by accidental shootings and targeted shootings, and Columbine/Sandy Hook/ Parkland type assaults and massive killings everyday.
I know you want to protect yourself but doing so with a gun is not realistic. And your right to protect yourself and your family is far outweighed by the massive killings of millions of school children. Over time, guns will dissipate, and will not be as readily available to criminals as they are now.
And hunting? Really? Where in the constitution does it say you have a right to carry an automatic assault weapon for the purpose of hunting?
I am more hopeful than ever. As of this morning’s Gallup poll, 28% of all Americans are for total repeal of the 2nd Amendment and 68% are in favor of a total ban on all assault weapons. Those are the highest poll numbers ever.
THIS TIME WE ARE COMING FOR YOUR GUNS!!
Deadpool + Celine Dion.
As a former journalist, I wrote a review on Celine Dion for Entertainment Weekly, and a Boston Magazine In Newsweekly.
“Remember the name, you’ll never forget the voice....”.
For Kathy Rinaldi Hope, we had a theme song written, we then reconnected to Ms. Dion and sent it to her. The favorable response was from Rene Angelil, Ms. Dion’s husband, and our team then became personal guests of the Angelil’s.
Ms. Celine Dion was both generous with her time and kind in spirit..
When you take on something so much greater than yourself, risk is always a possibility- but the reward is always worth it!
Unfortunately, our 20+ years of advocacy was sideline by an opportunist/ criminally acting Assistant District Attorney Ms. Anjelica Gregory who suborns perjury tactically. Luckily, heads of studios, networks, management companies, leading publicists, and celebrities like Julianne Moore, Sarah Jessica Parker, Hugh Jackman, Meryl Streep, Jake Gyllenhaal, Denzel Washington, Nicole Kidman, Scott Rudin, Calvin Klein and ++ know of our high profile work.. We may be down, but are relentless in our pursuit to ensure the safety of our children.
(we don’t covet celebrity, we do however appreciate the amount of influence they have on societal well-being.)
WHY YHE POLICE LOSE CREDIBILITY, AND WHY THEY ARE NOT RESPECTED.
Any trauma/PTSD survivor could/would not hear the ramblings of any abuser when intimidation/fear tactics are implemented.
In 2006, this was me.
Having called 9/11 for fear of an unconscious kid, the police showed up and beat me unconscious.
Ironically, it was also the Broward Cowards #BrowardSheriffs who’s inaction led to Parkland, Florida’s devastation.
We don’t trust the police- this is why.
#BrentFurguson plagiarized ADA Anjelica Gregory’s Suborned Perjury and is now making a joke of the honorable Leslie E. Stein by committing Fraud of the Court- supplying untruths to corrupt the court of impartiality.
obstruction of justice
: the crime or act of willfully interfering with the process of justice and law especially by influencing, threatening, harming, or impeding a witness, potential witness, juror, or judicial or legal officer or by furnishing false information in or otherwise impeding an investigation or legal process
ADA Anjelica Gregory. Suborned Perjury.
ADA Brent Ferguson lied to Honorable Leslie E. Stein.
The greatest thing anyone can ever be is kind. One act of kindness can literally make a persons life, whereas another can literally destroy it!
You can make a difference no matter how old you are.
Yes, you can! If you know who to ask...
All it takes is for one person to support an ideal, it can also just take one to destroy...
In my teen’s, I studied acting at a prestigious Beverly Hills school that put me at social events with Sugar Ray Leonard (whom I still talk to done 20+ years later..) and sat at a bar with Denzel Washington, and even attended a breakfast at the Costner’s. I went from several under 5 tv shows, to being featured, to eventually speaking- acting along side Leah Remini, Alyssa Milano, and Halle Berry. I also broached into film- a Tom Cruise/Rob Reiner film.
But, I realized I didn’t want to be center stage, nor did I want fame... and although I loved the craft, I believe acting was a necessary evil to do the most good... I wanted to speak about the many ills facing our kids, and needed the most vulnerable to hear- what better way than as an actor?
So, I joined several children’s organizations, and like Meghan I too wrote letters..
Sam Neil sent me a personalized letter of support...
Andy Garcia called me on the phone to discuss...
Annie Lennox sent me a lovely note of encouragement, as did Oprah Winfrey, Barbra Streisand, Barbara Sinatra, president Bill Clinton, Rosie O’Donnell, Madonna, and even Michael Jackson to name a few!
Although, I was just a kid, these phone calls, and letters kept me disciplined and dedicated to then become a Sandy Hook first responder of trauma/PTSD support and it afforded my organization to build a CenTer in CT to honor the 26 lives taken, support the bereaved left behind, and help encourage gun reform as we did...
There was one hero who diffused us all, therefore forcing us to be late to our very own party. But, again we had truer heroes keeping us on point.
Jake Gyllenhaal, Hugh Jackman, and Julianne Moore...
The greatest thing anyone can ever be is kind. One act of kindness can literally make a persons life, whereas another can literally destroy it!
UN WOMEN 2015
“I want to tell you a story that’ll sort of give context to my being here and my work with UN Women. When I was just eleven years old, I unknowingly and somehow accidentally became a female advocate. It was around the same time as the Beijing conference, so a little over twenty years ago, where in my hometown of Los Angeles a pivotal moment reshaped my notion of what is possible. See I had been in school watching a TV show in elementary school and, um, this commercial came on with the tag line for this dish washing liquid and the tag line said, ‘Women all over America are fighting greasy pots and pans’. Two boys from my class said, ‘Yeah, that’s where women belong, in the kitchen’. I remember feeling shocked and angry and also just feeling so hurt; it just wasn’t right, and something needed to be done. So I went home and told my dad what had happened, and he encouraged me to write letters, so I did, to the most powerful people I could think of.
“Now my eleven year old self worked out that if I really wanted someone to hear me, well then I should write a letter to the First Lady. So off I went, scribbling away to our First Lady at the time, Hillary Clinton. I also put pen to paper and I wrote a letter to my news source at the time, Linda Ellerbee, who hosted a kids news program, and then to powerhouse attorney Gloria Allred, because even at eleven I wanted to cover all my bases. Finally I wrote to the soap manufacturer. And a few weeks went by and to my surprise I received letters of encouragement from Hillary Clinton, from Linda Ellerbee, and from Gloria Allred. It was amazing. The kids news show, they sent a camera crew to my home to cover the story, and it was roughly a month later when the soap manufacturer, Proctor & Gamble, changed the commercial for their ivory clear dish washing liquid. They changed it from ‘Women all over America are fighting greasy pots and pans’ to ‘People all over America’. It was at that moment that I realized the magnitude of my actions. At the age of eleven I had created my small level of impact by standing up for equality.
Decided on April 17, 2018 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Ling-Cohan, J.P., Cooper, Edmead, JJ. 570473/16 The People of the State of New York, Respondent, againstJohn Rinaldi, Defendant-Appellant.
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Cooper, Edmead, JJ.
Justice Doris Ling-Cohan
Justice Matthew Cooper
Justice Carol Edmead
Sandy Hook was and always will be "a legitimate purpose."
Julianne Moore thought so, and pledged her support just a day after Sandy Hook.
Ricky Martin thought so, and kissed me.
Sarah Jessica Parker was asked to do a PSA for ABC's The View.
THEREFORE there couldn't possibly be any
BRENT Ferguson commits fraud of the courts
People v Rinaldi (John) Annotate this Case
[*1] People v Rinaldi (John) 2018 NY Slip Op 50562(U) Decided on April 17, 2018 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on April 17, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Cooper, Edmead, JJ.
The People of the State of New York, Respondent,
John Rinaldi, Defendant-Appellant.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Kevin B. McGrath, J.), rendered June 17, 2016, after a nonjury trial, convicting him of stalking in the fourth degree (two counts), harassment in the first degree, and harassment in the second degree, and imposing sentence.
Judgment of conviction (Kevin B. McGrath, J.), rendered June 17, 2016, affirmed.
The verdict convicting defendant of two counts of fourth degree stalking (see Penal Law § 120.45,) was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 ). There is no basis for disturbing the court's determinations concerning credibility. Ample evidence supported the conclusion that defendant engaged in a course of conduct from November 2013 through May 2015 that was reasonably likely to cause reasonable fear of material harm to the physical health or safety of the complainant, actress Brooke Shields (see People v Polanco, 57 Misc 3d 140[A], 2017 NY Slip Op 51348[U] [App Term, 1st Dept 2017]).
Contrary to defendant's contention, the "reasonable fear" and "no legitimate purpose" elements of the offense were established by the testimony of the complainant and additional eye-witnesses, who testified that defendant repeatedly appeared at and lingered around Shields' home; followed her when she left her house; ignored numerous warnings by family, security and the police to stop contacting her; parked near her home for days at a time and slept in his car; and sent her unwanted communications, including a letter with a shirtless photograph of himself and an email to her publicist in which defendant referenced an actress that had been murdered by a stalker. The court could rationally infer that defendant's conduct was designed to hound, frighten, intimidate and threaten (see People v Stuart, 100 NY2d 412, 428 ).
There was also a valid line of reasoning and permissible inferences from which the court could have determined that defendant's guilt of harassment in the first degree (Penal Law § [*2]240.25) and harassment in the second degree (Penal Law § 240.26) was proven beyond a reasonable doubt (see People v Danielson, 9 NY3d at 349).
Defendant's remaining arguments, to the extent preserved for appellate review, have been considered and found to be unpersuasive.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: April 17, 2018
My name is Melissa Howard and I operate stopsuicide.info, which supports my mission to end suicide.
As part of that mission, I'm writing articles (and a book!) on emotional wellness - in particular some of the warning signs that indicate it's time to seek help.
May I send you an emotional wellness article for your blog? I’m hoping my writing can guide others to feeling "well enough” and to understand when they need to ask for help.
Thank you for your consideration - your site looks great and I’d love the opportunity to write something for you!
Head of Prevention Outreach
But first, may I ask you a question. Last week Mark Salling, Puck from Fox TV’s Gkee, took his life. It’s understandable given the severity of his mental incapacity given his offensive predilections. However, I believe all deviants- be it pedophilia, rapists, abusers/harassers, and stalkers are all predators. Their mere being is a mortal imposition, and sadly death would be most welcomed. To harm another, be it mentally or physically defies any logic of freedom.
Having been falsely accused simply for a means of policing, the accused (wrongful accused) will always be a predator.
Why then go on??
Trauma, PTSD and the like change our chemical construct and we become engorged by cortisol. As a result, we are compelled to actually be kind and act kind to level it out.
Sadly, Brooke Shields is my Harvey. Well, actually ADA Angelica Gregory was the Suborning Perjurer, and Brooke was simply complicit.
“When you ask the police to not cause harm, nor for charges to be filed..”. There is hardly a platform of harassment let alone stalking. And to suggest an attempt to stop gun violence as anything less than an act of kindness, you must then look at the world in which you’ve created.
I am a Sandy Hook 1st Responder Who’s Hallmark sponsored event in Newtown on its 1st Anniversary was my completed objective. To win a faulty conviction, that invite was presented to the court as a ruse to attract and target Ms. Shields’ Children.
Simply put, if you say children are being targeted of any kind, you do not want to plea for a slap on the wrist. You cut their balls off and send them to the darkest hole!
Unless you’re a questionable prosecutor who has no conscious.
As far as the human condition decline.. Anxiety manifests itself into rapidly beating hearts, and heightened alerts.. resulting in a constant dreamlike escape of suicide to simply make it all end.
However, I believe one person can help heal what another has destroyed.
Manhattan District Attorney Anjelica Gregory Suborn Perjury to WIN Brooke Shields ‘Bad’ Case Against Sandy Hook First Responder.
When you release Websites, Blogs, + Social Media, YOU KNOW THE TRUTH/ Intent.
Subornation of perjury
In American law and in Scots law the subornation of perjury is the crime of persuading a person to commit perjury, the swearing of a false oath to tell the truth in a legal proceeding, whether spoken or written. The term further describes the circumstance wherein an attorney at law causes a client to lie under oath or allows another party to lie under oath.
In American federal law, Title 18 U.S.C. § 1622 provides:
Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined under this title or imprisoned not more than five years, or both.
In California law, per the State bar Code, the subornation of perjury constitutes an act of "moral turpitude" on the part of the attorney, and thus is cause for his or her disbarment, or for the suspension of his or her license to practice law.
In legal practice, the condition of suborning perjury applies to a lawyer who presents either testimony or an affidavit, or both, either to a judge or to a jury, which the attorney knows to be materially false, and not factual. In civil lawand in criminal law, the attorney’s knowledge that the testimony is materially false must rise above mere suspicion to what an attorney would reasonably have believed in the circumstances of the matter discussed in the testimony. Hence, the attorney cannot be wilfully blind to the fact that his or her witness is giving false, perjurious testimony.
Moreover, an attorney who actively encourages a witness to give false testimony is suborning perjury, which is a crime punished either with formal disciplinary action, disbarment, or jail, or a combination thereof. Likewise, a false statement by an attorney in court also is a crime similar to subornation of perjury, and is punished accordingly. Hence, in the professional conduct of an attorney at law, there is a fine delineation between assisting a witness to recall occurred events and encouraging him or her to give materially false testimony. The practice of ″horse shedding the witness″ (rehearsing testimony) is an example of such perjurious criminal conduct by an attorney, which is depicted in the true-crime novel (1958), by Robert Traver, and in the eponymous film (Otto Preminger, 1959), about a rape-and-murder case wherein are explored the ethical and legal problems inherent to the subornation of perjury.
#Philanthropy #ChildProtection #STOPGunSchoolViolence
Those that have been hurt the most, have the most to give.
To start this with such wording could very much lend itself to self pity. However, it’s anything but. The abused changes both physically, and emotionally. Understanding this makes me also aware of the altered chemical construct of the amount of cortisol internally of said abused. So, in itself having the most to give, suggests it’s also a chemical need to give.
We are not in the by business of self service, but service.
We are a grass roots effort dedicated to the betterment of others. Although a legal enterprise, we are not in the business to earn a living through efforts we believe should be immediate- meaning, Non- Profit should be volunteer. Hence the impropriety of the New York District Attorney #CyVance, who when learned of us thought us to be illegitimately. Our opposition was based on the soul saying of a reckless starlet who, by definition is a sociopath. After all, our Harvard School of Mental Health board member, and legal advisors were the first to suggest her defect, and supported it by a 1 in 25 person affliction. We must also state that we were encouraged by everyone else approached.
After all, why would such an individual pledge one’s entire life to service? There must be another reason than good!
No, Ms. Angelica Gregory, some people are just good.
That said, we are a group of individuals who choose to redefine the non profit sector by imposing a 3% fee for over-head. Which means, that everyone who assists us in championing for children dies so out of the goodness of their heart, and whom recognizes the need of people doing their part. No one receives a salary and this assured that funding will always go where it’s attended.
We are not comprised of PAC’s, begging for a dollar here and a dollar there to fight against another begged for dollar. Personally, I find it irresponsible to make legislators wealthier from the backs of the people... We seek a novel approach of being more direct- sending a message to the one needing to hear.
We are a media consort that eliminates the middle man.
Our mission is to create film, documentary, PSA, and to lecture.
To pay for this we rely on good old fashioned hard work, and enterprise.
We understand financial responsibility and with the combination of family money, inheritance, hard work, and empathy we have never imposed upon another nor have asked anything of anyone.
Sr. Account Manager consecutively of two of the largest banks in N. America, only to then seek a senior management position at a third.
SU was Having had success, I was able to then devote my entire self to my philanthropic endeavors post September 11.
As a boy, my world had been shattered- rather than letting a hardship define me, I chose to define it. This led me to create Kathy Rinaldi Hope. An abuse awareness vehicle that not only works to stop the many abuses, educates, and looks to the future health of our young.
But, post 911, the world had been shattered for all of us. And knowing first hand such devastation, I could not just stand by and not give my all.
In the recent tragedy of Sandy Hook in Newtown, CT we once again lend a hand. Having violently lost two siblings our hearts break for not only these 26 families, but the world throughout knowing the fear such a devastation would create. Innocence may have been its victim, but building strong and standing tall, innocence will then become the victor.
Current responsibilities include the privately built/funded Sandy Hook CenTer to honor and to pay tribute to those lives lost from this horrific tragedy. In the wake of the first year anniversary and to comply with Newtown's wishes, we're currently targeting ways to pay tribute within our own communities and on a delusional level-nationally.
When I'm not out saving the world from the many villains, or help establish the drug efficacy, you can find me raising both a toddler and newborn.
This world is a tough place and we should all do our part. I've seen the worst in life, so I tend to do more than most. And trying to stay humble, doing what I do helps keep me grounded to hopefully provide a good example to the children I have the privilege to be a part of.
The Innocence Deniers
When convictions are clearly wrong, these prosecutors don’t just hinder justice—they actively work against it.
January 10 2018 4:30 PM
Davontae Sanford was 14 years old when he confessed to murdering four people in a drug house on Detroit’s East Side. Left alone with detectives in a late-night interrogation, Sanford says he broke down after being told he could go home if he gave them “something.” On the advice of a lawyer whose license was later suspended for misconduct, Sanders pleaded guilty in the middle of his March 2008 trial and received a sentence of 39 to 92 years in prison.
Sixteen days after Sanford was sentenced, a hit man named Vincent Smothers told the police he had carried out 12 contract killings, including the four Sanford had pleaded guilty to committing. Smothers explained that he’d worked with an accomplice, Ernest Davis, and he provided a wealth of corroborating details to back up his account. Smothers told police where they could find one of the weapons used in the murders; the gun was recovered and ballistics matched it to the crime scene. He also told the police he had used a different gun in several of the other murders, which ballistics tests confirmed. Once Smothers’ confession was corroborated, it was clear Sanford was innocent. Smothers made this point explicitly in an 2015 affidavit, emphasizing that Sanford hadn’t been involved in the crimes “in any way.”
But Smothers and Davis were never charged. Neither was Leroy Payne, the man Smothers alleged had paid him to commit the murders. (Through his attorney, Payne has denied any involvement.) Instead, Smothers pleaded guilty to the other eight killings. Davis, who was never prosecuted, was convicted of an unrelated felony in 2013 and could be released from prison as early as July. Payne, who remains a free man, left Detroit in 2016. His whereabouts are unknown.
Davontae Sanford, meanwhile, remained behind bars, locked up for crimes he very clearly didn’t commit.
Police failed to turn over all the relevant information in Smothers’ confession to Sanford’s legal team, as the law required them to do. When that information was leaked in 2009, Sanford’s attorneys sought to reverse his conviction on the basis of actual innocence. Wayne County Prosecutor Kym Worthy fought back, opposing the motion all the way to the Michigan Supreme Court. In 2014, the court sided with Worthy, ruling that actual innocence was not a valid reason to withdraw a guilty plea. Sanford would remain in prison for another two years.
In an adversarial legal system, it’s natural to presume that prosecutors and defense attorneys are driven by the same goal: to win. They aren’t. In Berger v. United States, decided in 1935, the Supreme Court famously declared that the prosecution’s ultimate goal “is not that it shall win a case, but that justice shall be done.” A prosecutor, the court wrote, “is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.”
Embracing this “twofold aim” is at the core of a prosecutor’s work. The government brings cases it believes are supported by proof beyond a reasonable doubt. A victory at trial proves them right. But if new evidence is uncovered showing the conviction was error-ridden to the point of unreliability, the imperative that “justice shall be done” requires prosecutors to admit they were wrong. This responsibility exists even if a defendant may be guilty—if, for example, crucial evidence was obtained by illegal means. The moral imperative underpinning this precept, though, is brought into sharpest relief when it appears the defendant is actually innocent.
Many prosecutors accept this responsibility and, when proven wrong, ask the judge to dismiss a case or settle by way of a plea bargain. But too many do not. Indeed, there is a class of prosecutors that might fairly be called innocence deniers.
These prosecutors do not “do justice” as the Supreme Court defines it. Instead, they delay justice and in some cases actively work against it. When a prisoner is exonerated by a lower court, these prosecutors double and triple down, filing appeal after appeal. Or they indict and prosecute the exoneree all over again, sometimes under a wildly different theory at the expense of time and resources that should be used to pursue the crime’s actual perpetrator. They may also threaten endless legal challenges to wring “no contest” pleas from innocent prisoners in exchange for time-served sentences. The prisoners, desperate to be free, accept these Faustian bargains, which brand them convicts for life and allow prosecutors to proclaim their guilt and the state to deny them compensation. Some prosecutors are so committed to adhering to the original mistake that they fail to prosecute the actual perpetrators, even when there is evidence to convict them.
Innocence deniers are a diverse group: male and female, young and old, white and people of color. They are Democrats and Republicans from red, blue, and purple states. What they have in common is their insistence—in the face of all evidence to the contrary—that wrongfully convicted people are in fact guilty.
Simply opposing an exoneration effort does not make a prosecutor an innocence denier. Some exoneration claims are bogus and others are murky, requiring rigorous legal testing to be proven conclusively. Increasingly, conscientious prosecutors are working collaboratively with defense attorneys to reinvestigate innocence claims, keeping an open mind and doing the right thing in the end. Innocence-denying prosecutors are different. The cases collected here are extreme, either because the prosecutor in question has a pattern of reflexively denying innocence or because, even in a single case, the evidence of innocence is so manifest as to make the fight against it profoundly misguided.
In the past quarter-century, the work of dogged attorneys and advances in forensic science have exonerated more than 2,150 men and women, 161 of those from death row. The Innocence Project, a New York–based nonprofit founded by Barry Scheck and Peter Neufeld in 1992, has freed more than 200 people and spurred the creation of numerous smaller organizations around the country devoted to the same mission. (From 2012–2015, I was the director of the Loyola Law School Project for the Innocent in Los Angeles.) By some estimates there are tens of thousands more wrongfully convicted prisoners languishing behind bars. Nevertheless, some prosecutors—the most powerful actors in the criminal justice system—refuse to correct life-altering errors. (You can read more about 17 such cases here.) If we are committed to fostering a justice system that is truly just, it is imperative to call out these innocence deniers and hold them to account.
Kym Worthy, a Democrat and the first black woman or man to serve as Wayne County’s lead prosecutor, first took office in 2004 and coasted to re-election for a fourth term in November 2016. The former circuit court judge has a national reputation as a trailblazing progressive—last April, Essence named her to its “Woke 100 List” to honor her efforts “to achieve equality for people of color.” Worthy’s office, however, has repeatedly refused to admit error in cases like Davontae Sanford’s, where there is compelling evidence of actual innocence.
The Michigan Supreme Court’s adverse ruling in 2014 wasn’t the end of the line for Sanford. The court ruled against him on technical grounds and noted that there was nothing to prevent his legal team from filing a post-conviction motion for relief from the judgment, rather than making a direct challenge to his guilty plea. In 2015, attorneys for Sanford, who is black, did just that, and the Michigan State Police began to re-investigate the case. One year later, the police issued a 117-page report detailing compelling evidence that Smothers and Davis were guilty; that Sanford was innocent; and that Detroit’s then deputy police chief, James Tolbert, had lied to convict Sanford. It was at that point, nine yearsinto Sanford’s incarceration, that Worthy finally agreed to his release—but only on account of Tolbert’s misconduct. She continues to insist that Sanford is guilty, pointing to his discredited confession. The state police recommended bringing perjury charges against Tolbert and murder charges against Smothers and Davis. Worthy declined in all three cases.
In July 2017 Sanford filed a civil suit under Michigan’s Wrongful Imprisonment Compensation Act, and only four months later the state attorney general conceded that Sanford was innocent, had been wrongfully convicted, and was entitled to compensation, but noted that Worthy’s office “has been consulted and disagrees.” Julie Hurwitz, one of the attorneys who represents Sanford, told me she was “surprised” that the state acquiesced so readily but that given the crush of media attention the case has received, “the attorney general’s office probably knew that fighting this would be a political bombshell.” On Dec. 21, a judge awarded Sanford $408,356.16.
In reference to her office’s handling of Sanford’s case, Worthy has said, “I don’t know what we could have done differently.”
David Moran, director of the Michigan Innocence Clinic, has tangled with Worthy in a half-dozen cases in which he says her office has fought his efforts to free clients. Moran, who helped lead the fight to exonerate Sanford alongside the Center on Wrongful Convictions of Youth at the Northwestern Pritzker School of Law, also battled the Wayne County prosecutor in the case of Lamarr Monson, who was convicted in the 1996 murder of a 12-year-old girl and sentenced to 30 to 50 years in prison. Monson, who like Sanford is black, claimed he’d been tricked into signing a false confession stating that he’d stabbed the victim to death.
Nearly 20 years after the murder in question, Moran and his students examined the object that the medical examiner had identified as the likely murder weapon: a ceramic toilet lid used to bludgeon the victim over the head. The lid was covered with bloody fingerprints, which had never been tested. The Michigan State Police found that all the fingerprints matched a man named Robert Lewis, who was living in the same building as the victim at the time of the murder.
During a four-month-long evidentiary hearing in late 2016, the Michigan Innocence Clinic presented the fingerprint evidence and called Lewis’ then live-in girlfriend Shellena Bentley as a witness. Bentley testified that Lewis came back to her apartment on the night of the murder “frantic” with “blood on him; it was dripping off his fingernails.” David McCreedy, the assistant prosecutor assigned by Worthy to fight the case, didn’t find this account convincing. He explained that Lewis might have wandered by the apartment while the building manager was on the phone with 911, then moved the toilet tank out of the way to help the paramedics. Moran told me that he responded: “There might be 12 gullible citizens that would buy that, but that’s why we need a new trial: to see if the state can find them.”
The judge granted Monson a new trial; he was subsequently released on bond. Worthy, who agreed to be interviewed about Monson’s case—she declined to comment on Devontae Sanford’s, citing ongoing litigation—told me her office sought to delay the retrial so it could conduct an additional investigation. Two homicide investigators were dispatched to interview Lewis, who denied committing the murder. “His statements were consistent with the evidence that was available in the case,” Worthy says, despite Lewis’ fingerprints being all over the bloody toilet lid, including around the edges, Moran says, suggesting that he gripped it. (Worthy’s deputies do not concede that the toilet tank was the murder weapon; one told me that the victim’s “head could have been slammed against the back of the bathtub,” causing the fatal injury.)
In August, a few weeks before Monson’s retrial, the prosecution dismissed the case. In a public statement, Worthy said Monson had lived with the 12-year-old victim, that he’d had sex with her, and that he’d demanded that she sell drugs for him. The decision to drop the charges against Monson, Worthy said, was not due to a belief in his innocence, but instead due to “the destruction of evidence and the possible coercive conduct of the then-homicide inspector in obtaining statements from the defendant.” Her office, she said, would not be charging Robert Lewis with the murder. Lewis is still free.
Moran says Worthy’s charge that Monson had sex with the 12-year-old victim is “false and disturbing,” adding that “it is unethical for a prosecutor, upon dismissing charges against a defendant, to then publicly defame that defendant.” His client, he says, emphatically denies that any sexual contact occurred. Asked to respond, Worthy cited Monson’s statements to the police—the same statements she has admitted were possibly coerced in a manner that “supports Monson’s defense of a false confession.”
Worthy did tell me, however, that her office is in the process of launching a standalone unit to review possible wrongful convictions. That group will be headed up by Valerie Newman, a longtime attorney at the Michigan State Appellate Defender Office, which represented Sanford before the Michigan Innocence Clinic took over his case. Worthy says that project has been in the works for some time, but became possible only after she obtained funding from the Wayne County Commission.
Moran reacted to the news with cautious optimism, saying, “I hope that the Wayne County Prosecutor’s Office is changing its attitude and will seriously consider these cases.” He has cases lined up to present to the unit as soon as it opens for business.
In June 2016, the California Innocence Project filed a vindictive prosecution motion, arguing that the retrial of William Richards was “unconscionable.” A month earlier, the California Supreme Court had ruled unanimously that Richards’ conviction for the 1993 murder of his wife Pamela Richards should be overturned, as it had been based on false evidence. Shortly thereafter, San Bernardino County District Attorney Michael Ramos announced his office would prosecute Richards for a fifth time. “There was no way that they had any legitimate purpose in prosecuting him,” says Jan Stiglitz, co-director of the California Innocence Project. “They would have to be deluded to believe he was still guilty.”
Ramos is a prosecutor with a national profile. A Southern California Republican, he is the board chairman of the National District Attorneys Association, a powerful group of more than 4,000 prosecutors that meets regularly with the Department of Justice to offer its views on criminal justice policy. The son of Mexican immigrants, he is the first Hispanic district attorney for San Bernardino County, a jurisdiction with a population of more than 2 million people. First elected in 2002, Ramos is now campaigning for his fifth term. For the majority of his 15 years in office, he has fought the release of a man who was demonstrably innocent. Ramos isn’t known for serially denying innocence claims. The case of William Richards, however, is a shocking example of how prosecutors can pursue a single individual with no regard for logic or reason.
Pamela Richards was murdered in gruesome fashion. Although she was killed by manual strangulation, she’d also been horribly beaten. Pieces of her skull were lying beside her body, and a paving stone and cinder block found nearby were covered with blood and matted hair. Police immediately focused their suspicion on her husband. The couple was having financial problems, and Pamela, who was having an affair, had announced she was leaving him.
Nevertheless, the evidence against William Richards was weak. He had no criminal record and no history of violence. The night of the murder, he clocked out from work at 11:03 p.m., then drove 45 miles to get home. Even assuming he exceeded the speed limit by 20 miles per hour, police estimated Richards couldn’t have arrived home before 11:47 p.m. That would’ve given him 11 minutes to brutalize his wife before he called 911 at 11:58 p.m. to report she was dead.
Richards, who is white, was indicted under Ramos’ predecessor, Dennis Stout, and tried four times by a prosecutor named Michael Risley. Two juries were unable to reach a verdict, and the judge in the third case declared a mistrial. At the fourth trial, Risley introduced new expert testimony: A dentist, Norman Sperber, told the jury a bite mark photographed on Pamela’s arm was consistent with William’s teeth, and that the bite mark was so unusual as to be found in just 1 to 2 percent of the population. William Richards was sentenced to life in prison in 1997.
In 2003, Stiglitz and Justin Brooks, the co-founders of the California Innocence Project, filed a motion for DNA testing on the paving stone and cinder block found near Pamela’s body. They also sought DNA testing on a hair found underneath her nails. When the results finally came back in 2007, they excluded William. A year later, the dentist recanted his testimony, stating he had “no degree of certainty” about his earlier conclusion and adding that, with regard to William, “I have essentially ruled him out.” In 2009, a trial judge overturned William Richards’ conviction, finding that “the entire prosecution case has been undermined” with evidence that “points unerringly to innocence.” Ramos appealed the judge’s order. Another six years of legal dueling followed before the state’s highest court agreed that William Richards’ conviction should be thrown out.
Stiglitz was shocked when he learned in 2016 that Ramos intended to prosecute Richards for a fifth time. The DNA pointed to someone else, the recanted bite-mark testimony had been tossed, the timeline made no sense, and there was no other evidence. But a trial date had been set, and Ramos’ office opposed Richards’ release—he had been transferred to jail from state prison while he awaited trial—demanding a $100,000 bond. The judge declined, instead letting Richards out on his own signature.
Eight days after Stiglitz and his colleagues filed their vindictive prosecution motion, Ramos’ office finally dismissed the murder charge while maintaining that no final decision had been made. Ramos’ spokesperson, Christopher Lee, wrote in an email to the Intercept that more time was needed to look at “the defense’s new evidence.” The case has never been refiled.
Richards now lives with a former California Innocence Project attorney and her family. He developed prostate cancer while in custody that went untreated and, his lawyers say, is now incurable. Richards has filed a civil right lawsuit against the County of San Bernardino and six sheriff’s deputies, seeking unspecified damages for actions that were done “deliberately, purposefully, knowingly and/or with deliberate indifference to, or reckless disregard” for the truth. Trial is set for October 2018. The San Bernardino district attorney’s office declined to make Ramos or Risley available for comment, citing Richards’ ongoing lawsuit.
Leon Cannizzaro has been known to fight exoneration cases for years until every appellate option has been exhausted. Local prosecutors have tremendous power, and the district attorney for Louisiana’s Orleans Parish uses every tool in his arsenal to reject the innocence of exonerees, and to threaten the freedom and professional reputations of those fighting on behalf of those who say they were wrongfully convicted. Cannizzaro’s office has gone after defendants’ lawyers and investigators in court by accusing them of committing crimes to help their clients, and the office has discouraged witnesses from helping to exonerate wrongly convicted people, charging them with perjury when they recant false trial testimony. It’s not just the wrongly convicted who suffer under this regime: By spending resources rejecting exonerations instead of searching for the real perpetrators, Cannizzaro has prevented victims from getting the justice they deserve.
Consider the case of Jerome Morgan, who was 18 when he was convicted of the 1993 shooting death of a fellow teenager. The victim, Clarence Landry III, died after shots were fired at a Sweet 16 party in a hotel ballroom. Hakim Shabazz and another teenager were wounded, but survived. The gunman immediately fled the scene; he was chased unsuccessfully by Landry’s best friend, Kevin Johnson. (Morgan, Landry, and the witnesses are all black.)
Johnson ruled out Morgan when he was shown a photo array just days after the crime. Three months later, Shabazz identified Morgan as the shooter, and four months after that Landry’s mother brought Johnson back to the police station. At that point, Johnson changed his story and identified Morgan as the gunman. Based on these two identifications, Morgan was convicted of second-degree murder. In 1994, a judge sentenced Morgan “to serve his natural life at hard labor in the Department of Corrections.”
In 2013, after Shabazz and Johnson recanted their identifications of Jerome Morgan (in 2011 and 2012), Morgan’s lawyers succeeded in getting a hearing before a trial judge to determine whether Morgan’s conviction should be thrown out. At the hearing, Shabazz said he hadn’t known the identity of the gunman but that a detective told him “Jerome shot you.” Johnson described the immense pressure he felt when Landry’s mother brought him to the police station. He’d set aside Morgan’s photograph only to have the picture put back in front of him and have the detective ask again, “You sure this is not the guy?” Finally, he agreed to identify Morgan as the killer.
Morgan’s lawyers also uncovered evidence that the ballroom had been sealed within minutes of the shooting and that Morgan had been locked inside, making it impossible that he was the fleeing gunman. Prosecutors had that evidence all along, but never turned it over to the defense.
A judge overturned Morgan’s conviction in 2014. At that point, he’d served 20 years. After he was unsuccessful in opposing Morgan’s release on bail, Cannizzaro went to the intermediate appellate court seeking to reinstate his conviction. When that effort failed, he appealed again, this time to the state’s highest court. He also indicted Shabazz and Johnson for perjury, and then argued that his office should be allowed to introduce Shabazz and Johnson’s recanted trial testimonies, as neither man would agree to take the stand at Morgan’s retrial given the perjury indictments hanging over their heads. The Louisiana Supreme Court shut Cannizzaro down again, holding that “the state may not rely on these discredited and unreliable identifications.”
Cannizzaro, a white Democrat who’s been the Orleans Parish district attorney since 2008, vowed to press on. In the weeks leading up to the retrial, prosecutor Donna Andrieu accused Morgan’s attorneys, Emily Maw and Kristin Wenstrom, of coercing false recantations from Shabazz and Johnson and asked that they be removed as Morgan’s counsel so the state could call them as witnesses. The judge, incredulous that Andrieu would accuse the defense attorneys of “suborning perjury,” rebuffed her request as “outrageous.”
In May 2016, two weeks before Morgan’s retrial, Cannizzaro’s office dismissed the charges against him, saying the high court’s ruling had tied its hands. Cannizzaro professed deep sorrow for the victim’s family. “What is most disappointing to me about this entire incident,” he said, “is that, as [the victim’s mother] lays in bed dying of cancer, the justice for which she worked so hard to obtain is ripped from her fingers and she is helpless to stop it.” Maw called Cannizzaro’s statement “dishonest and preposterous.” The attorney had stayed in close touch with Landry’s parents throughout the case. “They fully supported our efforts and have no desire to see an innocent man in prison,” she told me.
Clarence Landry’s killer has never been found. Maw says that, to her knowledge, no one is looking for him. Instead, Cannizzaro, who declined to comment for this story, went ahead with the perjury prosecutions against Shabazz and Johnson. In January, a judge acquitted both men.
Worthy, Ramos, and Cannizzaro may seem extreme, but they have plenty of company. University of Michigan Law professor Samuel Gross, co-founder of the nonprofit National Registry of Exonerations, says “there are a lot of these cases.” Gross and his colleagues have tracked every known exoneration from 1989 through the present day. At Slate’s request, they provided a list of an additional 16 cases of innocence denying beyond the ones described at length in this article. “We see them all the time,” Gross says.
As Davontae Sanford’s case demonstrates, innocence denying means the real criminals go unpunished, posing a threat to public safety. According to the Innocence Project, 353 people have been exonerated by DNA evidence since 1989. The group has identified 152 actual perpetrators in those cases who went on to commit “150 additional violent crimes,” including rape and murder.
The best-known example of this phenomenon is the case of Michael Morton, a Texan who was wrongfully convicted of murdering his wife in 1987. At trial, prosecutors withheld crucial exculpatory evidence. After his conviction, they fought Morton’s release tooth and nail, even though DNA evidence found on a bandana near the crime scene pointed to Mark Alan Norwood as the real killer. Norwood had gone on to rape and kill another woman in a nearly identical manner two years after Morton was sent to prison.
The lead prosecutor, Ken Anderson—who became a district court judge after securing Morton’s conviction—was criminally charged with evidence tampering and lying to the judge at Morton’s preliminary hearing, and eventually pleaded no contest to felony charges of criminal contempt. He has been barred from practicing law. But the prosecution of Anderson is an outlier. Worthy, Ramos, and Cannizzaro have never been sanctioned. Instead, they have each coasted to re-election while racking up accolades and awards.
If innocence denying rarely carries negative consequences, is the converse true? Do prosecutors who do everything in their power to free wrongfully convicted people stand to lose elected office and lose face because they’re seen as weak? In a word, no. Consider the story of Thomas Haynesworth, Michael Herring, and Ken Cuccinelli.
Haynesworth, a black teenager, was convicted in 1984 of raping three white women in Richmond. In back-to-back-to-back trials, all three women identified Haynesworth as their attacker. In 2009, Haynesworth’s attorneys got approval to test the DNA from a rape kit in one of the cases. That DNA matched a man named Leon Davis, who’d been convicted of sexually assaulting more than a dozen women. Those crimes had been committed after Haynesworth was arrested, in the same city or adjoining counties, and in a manner strikingly similar to the modus operandi attributed to Haynesworth.
Haynesworth was exonerated in that case, but he remained incarcerated for the two other rapes—and in those cases the evidence had been destroyed, leaving no possibility for DNA testing. Haynesworth’s advocates turned to Richmond City Commonwealth’s Attorney Michael Herring for help.
Herring, who is black, was initially skeptical, but he became convinced of Haynesworth’s innocence. He then approached Cuccinelli, who was Virginia’s attorney general at the time. With his deputy, Alice Armstrong, Cuccinelli put together six-foot-high charts analyzing the evidence in the cases involving Haynesworth. They then added more charts for the multiple cases in which Davis had been convicted. It quickly became clear that this was not a question of glancing similarities: The geographic clusters, the details of the physical violence, and even the rapist’s wording of his threats to the victims formed an unmistakable pattern. Haynesworth, Cuccinelli believed, had spent nearly three decades in prison for Davis’ crimes.
In December 2010, Cuccinelli—a white Republican who is famous for his unflinchingly conservative positions—approached Virginia Gov. Bob McDonnell and lobbied for Haynesworth to be pardoned. The attorney general then took a highly unusual step. Rather than opposing Haynesworth’s petition for a writ of actual innocence in the Virginia Court of Appeals, he and Herring joined with Haynesworth’s lawyers in asking the justices to grant it.
During oral arguments in a packed courtroom, Cuccinelli was asked how he could sanction undoing the verdicts of two separate juries when the victims stood by their identifications. “My job is not to defend convictions, it’s to defend justice,” he explained to me.
Haynesworth ultimately prevailed by the narrowest of margins, with the court of appeals ruling 6–4 in his favor. Cuccinelli, now the president for the Senate Conservatives Fund, calls Haynesworth’s exoneration “the professional accomplishment I am most proud of.” Herring, who remains the commonwealth attorney for Richmond City, easily won re-election. In 2016, he received an award from the Virginia State Bar for his work in supporting the successful petition to pardon another man, Michael Kenneth McAlister.
When Kym Worthy says she plans to devote an entire unit to investigating post-conviction innocence claims, she is following in the footsteps of other district attorneys. Perhaps the best known of these units was run by Ken Thompson, the first black man or woman elected as the district attorney of Brooklyn, New York. Thompson, who took office in 2013, served only three years before dying of cancer in October 2016. But in that short time, he built up a remarkable record. In its first year, the conviction review unit freed 10 people. At the time of Thompson’s death, the total stood at 23. (After Thompson’s death, Eric Gonzalez became the acting district attorney. Gonzalez, who just won election for his full first term, had been endorsed by the New York Times, which noted that he “took the lead” in making the conviction review unit a success.)
Sharen Wilson, the top prosecutor for Tarrant County, Texas, is following the same model. Wilson, a white Republican who took office in January 2015, hired a widely respected defense attorney from a neighboring county to review questionable convictions. Recently, the Tarrant County Conviction Integrity Unit cooperated with the Innocence Project in reinvestigating the case of John Earl Nolley. That reinvestigation turned up a bloody palm print that did not match Nolley and evidence that the jailhouse informant who testified against Nolley had lied. After Wilson agreed the conviction was tainted, a state court judge overturned the conviction, and Nolley was released on bond in May 2016. The case is currently pending in the Texas Court of Criminal Appeals, which will determine whether to uphold the trial court’s conclusion and Wilson’s recommendation.
On her website, Wilson describes herself as “putting victims first” with her commitment to “aggressively prosecute the most dangerous criminals.” She says vacating Nolley’s conviction and releasing him on bond was the right decision. “Faith in God leads me to believe that we have a system that is made up of people, and people make mistakes,” she told me.
There are no particular credentials that guarantee that a prosecutor will do the right thing. Prosecutors who embrace their role to “seek justice” must be willing to tell the truth no matter the consequences, and they need to have the gumption to fess up when they make a mistake. These are basic lessons that are well understood by an average fourth grader. Why is it so hard for so many of our top law enforcement officials to take them to heart?
Sandy Hook Memorial Bear,
Founder and Chief Executive Director of NYS 501c3 Kathy Rinaldi Hope/
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