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Wednesday, September 19, 2007

The Thugs Won't Get Away With It, Judge Phillips ! (CLICK HERE FOR FULL STORY)

The Institute for Judicial Studies has published a great and comprehensive article about the lawless abuse thrust upon retired New York State Supreme Court Judge John Phillips. A horror story which we covered in September 1st, 2nd and 3rd postings....MORE....

In the process to expose, and end, the corruption in our treasured courts, we are encouraged by The Institute for Judicial Studies' motto: Defending Independence.  Demanding Accountability. 

And to those who attacked Judge Phillips, and to the others who so brazenly corrupt our system of law, we refer you to what Margaret Mead said, "Never doubt that a small group of thoughtful, committed individuals can change the world; indeed it is the only thing that ever has."

The September 12, 2007 dated Judicial Reports story, Fallen Guardian Angels, by Leah Nelson, follows.

Make www.judicialreports.com part of your required reading !!


Fallen Guardian Angels

By Leah Nelson
lnelson@judicialstudies.com
Posted 09-12-07

The guardianship imbroglio of a former Brooklyn judge has always been populated with enough shadowy facts and characters for a novel by Tom Wolfe. But now someone is trying to make a federal case out of it.

Four court-appointed fiduciaries and Kings County Supreme Court Justice Michael Pesce have been referred to the Internal Revenue Service for alleged violations of tax law pertaining to their role in the guardianship of John L. Phillips, a former judge himself.

John O’Hara — a Brooklyn political figure known variously as a rabble-rouser, a crusader for justice, and a gadfly with a vendetta against Brooklyn’s courts and District Attorney — filed the Information Referrals on September 8. He did so under an IRS procedure that permits such actions by concerned citizens.

According to the filing: “From 2000 to 2007, four separate court appointed guardians — Harvey Greenberg, Frank J. Livoti, Ray Jones, and Emani Taylor — sold approximately $10 million of real estate for an alleged incapacitated person, retired judge John L. Philips. No tax returns were filed or paid; current estimates are $1.5 million in taxes are owed. All above said guardians are lawyers.”

As to the judge, O’Hara wrote: “Justice Pesce . . . has obstructed all attempts by current guardians to obtain records for tax returns.”

According to the Office of Court Administration spokesman David Bookstaver, Justice Pesce was unable to speak for this article due to a court rule that forbids judges from commenting on pending litigation.

As for the IRS referrals, Bookstaver said, “It would be inappropriate to comment on an allegation that is not substantiated.”

But Pesce’s predecessor, former Supreme Court Justice Leonard Scholnick, said, “I know that Pesce is a conscientious guy. I would vouch for his integrity. [And] what advantage is there to the court to allow such neglect? It reflects poorly on yourself as a judge.”

THE ACCUSER

In an interview, O’Hara said he based his claims on the court file. A long-time friend of Judge Phillips, he maintains his own set of papers on the guardianship.

O’Hara, a onetime lawyer, is no stranger to the Brooklyn courts. In the late 1990s, he was convicted of voter fraud, a felony, for being registered to vote at the wrong address, and sentenced to 1500 hours of community service. He was also disbarred.

Though Phillips’s guardianship case is sealed to all but certain court officials and parties to the case, O’Hara said he has been collecting filings since proceedings began.

Parties entitled to see case filings made a substantial portion of recent documents available to Judicial Reports. While their contents neither confirmed nor refuted O’Hara’s allegations in full, they did indicate apparent failure on the part of court-appointed guardians to comply with filing requirements.

In a letter dated August 13, 2007, Phillips’s current financial guardian — court-appointed attorney James Cahill, Jr., of Brooklyn’s Cahill and Cahill, P.C. — informed Justice Pesce of “serious problems that have arisen concerning John Phillips’ tax affairs,” – specifically, that the IRS had confirmed that no tax returns were filed between 2001 and 2005.

Cahill, who declined to comment for this article, became financial guardian in 2006 and filed tax returns that year. His letter to Pesce affirmed that Greenberg, Livoti, Jones and Taylor — all previous financial guardians to Phillips — had not filed such returns.

He had only become aware of the situation, he wrote, after receiving a notice from the IRS “concerning the failure to file tax returns for Phillips’s affairs for the tax years 2003, 2004 and 2005 by the predecessor guardians. In speaking with a representative at the Internal Revenue Service, I was informed that returns were not filed for the years 2001 and 2002.”

SEALED UP TIGHT

Complicating matters, Justice Pesce apparently sealed not only the case, but the sealing order itself, to all except “those who have appeared,” plus the court evaluator, court examiner, and court-appointed guardian.

Part 216 of the Uniform Rules for New York State Trial Courts, states that “a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof.” (The Institute for Judicial Studies, publisher of Judicial Reports, has asked Justice Pesce to unseal the sealing order.)

According to a transcript of the proceedings from the early days of the case, Justice Scholnick orally issued an order to seal the case on February 21, 2001, the day that Phillips was declared an incapacitated person (IP).

The conversation that preceded his oral order was off the record. The court reporter’s note is simply followed by Scholnick’s on-record statement, “I am sealing it. I will order it sealed.”

Based on the Clerk’s Minutes, it appears that Scholnick did not officially enter the order.

Scholnick, who took early retirement after decades on the bench, now lives in Florida. Although he did not recall failing to issue an official order, he reaffirmed the propriety of his decision to seal.

“It was a delicate matter because he was an ex-judge,” Scholnick said. Sealing guardianships is a practice that he supports because “[f]or one thing, it’s personally embarrassing to the person and to their family.”

Scholnick was appalled to learn that Phillips’s case remained such a mess, saying that the case had made an “indelible impression” on him. “I spent a lot of time with the man because, needless to say, I had a lot of compassion for him,” he said. “It’s hard to see when the mighty have fallen.”

Following Scholnick’s retirement in February 2002, Pesce replaced him as Presiding Justice of the Second Appellate Term, Second and Eleventh Judicial District. According to the Clerk’s Minutes, he issued an official sealing order on September 18, 2002. The file now resides in the office of the King’s County Guardianship Department, so secret that it is not even kept in the same room as other sealed cases.

AN INCREASINGLY PUBLIC ISSUE

The Office of Court Administration is aware of problems with the case. Articles about irregularities have appeared often, and supporters of a “Committee to Free Judge Phillips and Restore his Estate,” headed by Dee Woodburn, a community activist from Phillips’s home neighborhood of Bedford-Stuyvesant, have been publicly protesting his situation for years.

Woodburn, a former paralegal who worked in the special defender services office of the Legal Aid Society’s criminal defense division, has sent complaints about Pesce’s management of the case to three overseers: The New York Attorney General and Chief Judge Judith S. Kaye in December 2005, and the Commission on Judicial Conduct in April 2006. The Commission contacted her in November 2006, but Deputy Administrator Alan Friedberg declined to comment, saying that ethics rules prevent Commission members from confirming or denying whether an investigation is even taking place.

Woodburn’s concerns touch on five irregularities: The unexplained sealing of the court file; the predecessor guardians’ failure to turn over accountings of assets; Taylor’s long-term appointment as “interim” guardian between 2003 and 2006; the circumstances of several real estate transactions involving property belonging to Phillips; and Pesce’s sealing of the reason he chose to recuse himself from overseeing the sale of three of Phillips’s buildings.

Cahill, too, noticed irregularities, and reported his concerns directly to Justice Pesce in no uncertain terms.

On December 6, 2006, after reviewing transaction records available from Taylor’s tenure as financial guardian, he filed papers with the court on his findings. “I make this supplemental affirmation to update the court with regard to improper disbursements of approximately four hundred thousand dollars ($400,000) from the guardianship account maintained by the prior Guardian of the Property, Emani Taylor, to herself, family, and/or associates. Moreover, this additional information is relevant to apprise the Court of the nature and extent of funds that appear to have been distributed by the prior guardian as the result of intentional conversion and/or grossly negligent conduct.”

On October 16, 2006, Pesce granted Cahill’s request that a private investigator be hired to look into Phillips’s and Taylor’s assets, and referred the matter to the King’s County District Attorney and to the Second Appellate Department Grievance Committee.

The DA’s office said it found no evidence of wrongdoing. The Grievance Committee has not yet issued a report.

Since then, Pesce has ordered that Taylor hand over her files and an accounting record. He also held her in contempt, eventually fining her $250.

PESCE’S PERFORMANCE

The tax issues surfaced only recently. Cahill’s August 13 letter followed on the heels of a report by Seth Coen, the court examiner appointed to compile a final accounting of Taylor’s activities and evaluate Phillips’s estate. In his June 20, 2007 report, Coen confirmed that Taylor had not filed taxes, and he expressed frustration at the “incomplete records, poor recordkeeping and the lack of cooperation encountered.”

Cahill had objected to the report on 89 points, according to the papers he filed on July 5, 2007.

The identity of the Court Examiner who preceded Coen — or whether, in fact, such an appointment was made — is another of the mysteries buried in the sealed case file. Without access to those records, it is unclear who, if anyone, was supposed to be making sure that Phillips’s guardians stuck to the rules.

The OCA did not respond by deadline to requests for either specific information on the examiner in this case or the protocols of adminisrative oversight of a judge's failure to adequately oversee that role.

The rules of administration are governed by Article 81, which was rigorously reviewed and rewritten between 2000 and 2002. The rewrite came after explosive evidence of corruption within the guardianship system came out of Kings County in the form of a well-publicized letter from two politically connected attorneys. The lawyers had written to a Democratic Party boss in Brooklyn, complaining that they were not receiving the guardianship appointments they felt entitled to for years of “diligent work and unquestioned loyalty” to the party.

In 2000, Chief Judge Kaye announced a comprehensive program to reform fiduciary appointments.

Her plan had three parts. It established a permanent Office of Inspector General for Fiduciary Appointments, with jurisdiction to monitor and enforce existing rules governing appointments; asked administrative judges to review appointment processes in their district and make recommendations for change; and established a commission on fiduciary appointments to examine current rules and make recommendations for improvement.

The Commission on Fiduciary Appointments and the Inspector General’s office released reports in quick succession in December 2001, laying out the main problems with the state’s guardianship system. Their findings were similar: Guardians across the state were failing to comply with filing requirements; judges were often indiscriminate in granting high fees to guardians; and guardians often failed to act in the best interest of their wards, especially with respect to personal care and financial decisions.

Debra Sacks, senior staff attorney at Hunter College’s Brookdale Center on Healthy Aging and Longevity, was part of the Commission.

“The main thing in Article 81 that should be preventing this stuff is the court examiner,” she said. “There’s no way to monitor a case if you don’t have these reports; that’s the whole role of that monitoring function. Article 81 was supposed to really buckle down and improve that — and it has, in many cases.”

Part of the problem, Sacks said, is chronic understaffing in the guardianship department.
But ultimately, she said, it is “[t]he judge’s responsibility to oversee the whole process and make sure what happens is statutorily correct. . . . The writers of Article 81 put in as much detail as possible because we didn’t want to leave it to guesswork.

“When a judge does an Article 81, what is required is pretty clear — especially, the whole monitoring process and guardianship is really clear,” she continued. “It’s disturbing to know that amendments have been made to correct past behavior problems and things are still going on.”

Scholnick sees things slightly differently.

“It’s very easy to throw it in the lap of the judge. The truth is someone has to bring it to your attention because you don’t have personal knowledge. You rely on the guardians. . . . The only time I would call them to task would be if I got a complaint from someone in the community or even the IP himself,” he said. “I didn’t even meet with examiners unless there were problems.”

In the Phillips matter — after repeated requests from Cahill and Coen — Pesce did take steps to hold Taylor accountable for her failures as a guardian, acceding to their recommendation that he hold her in contempt.

But his record on responding to motions in this case in a timely fashion is far from stellar.

Uniform Civil Rules for New York trial courts require judges to report quarterly on motions taking longer than 60 days to decide, explaining in each case the reason for the delay. Records obtained by Judicial Reports show that not only has Justice Pesce been behind on deciding at least one motion in the Phillips case almost every quarter since 2005, but that his explanations as to why are hardly illuminating.

In the last quarter of 2006, for instance, in the space on the Administrative Justice’s form entitled “Nature of matter pending,” he wrote, “Various matters.” Under “Reason decision not rendered,” he wrote, “Ongoing proceedings.”

In contrast, his statements regarding other cases in which he has failed to meet the motion deadline are practically verbose. Just below the Phillips case is a guardianship case for another woman. The “Nature of matter pending” is a “Motion to settle final accounting.” The reason for the delay, he wrote, was that the accounting was “[w]aiting to be checked by the guardianship clerk and return for decision.”

“A law is only as good as how it’s implemented,” said Sacks of the statute she helped rewrite. “Article 81 has really good things in it, but if the system doesn’t enforce those things, it’s a chase after wind.”

To the right see: "Judicial Reports: Fallen Guardian Angels"

Also See:
http://www.judicialreports.com/2007/09/fallen_guardian_angels.php#more

8 comments:

Anonymous said...

THE PEOPLE THAT DID THIS SHOULD GO DIRECTLY TO JAIL

Anonymous said...

along with all those who helped them!

appalled said...

Judge Judith Kaye certainly is aware of this travesty. So why hasn't she picked up the phone and made a few calls? Is she so important? Oh, she is fighting for pay increases for all Judges but, she will not fight for Judge Phillips.

someone who knows said...

Judy kaye is the problem...she has allowed everything to happen as she presides arrogantly as THE CHIEF JUDGE OF ALL OF NY STATE COURTS. This woman is not unaware and has participated in forms of corruption and discrimination herself...i know, i am a victim of her actions as i have stated! She is the final say of all matters judicial. The only calls she should be making are from federal prison!

Anonymous said...

This is a prime example that shows that the Judicial is a bad joke

ashamed said...

For something like this to have happened in this country is shameful. It truly shows that no laws or judtice exists it all boils down to only greed. Ashamed of the people and the system.

Anonymous said...

this is unconscionable

Epulosity said...

my family is going through a guardianship battle in Erie county in new york. it's hell. there are 5 ample members of the family who can be guardians over our family member but the court insists on an outsider to be a guardian. this is ludacris!!

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               Video of 1st Hearing on Court 'Ethics' Corruption
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