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Tuesday, June 2, 2009

May 19, 2009 NYLJ: Newspaper Subpoenas 9 Judges

NY Post Subpoenas Nine Judges in Libel Case Brought by Another NY Judge
The New York Law Journal by Mark Fass - May 19, 2009 

As part of its defense against a libel action brought by a state court judge, the New York Post has subpoenaed nine current and former Brooklyn judges, including four former administrative judges. Brooklyn Supreme Court Justice Francois Rivera filed the libel suit in 2006, claiming the Post defamed him in a series of four articles published in October 2005, which stated that the judge had allegedly paid Brooklyn Democratic Party officials $50,000 for his seat. The first three articles also reported that "sources" had said the judge testified before a grand jury regarding other judges in return for immunity.  Specifically, the stories claimed that numerous insiders said Justice Rivera sought easier treatment from prosecutors by testifying about judges who paid then-party leader Clarence Norman for their seats on the Brooklyn bench. Mr. Norman is serving a three-to-nine year prison term after being convicted at three separate trials of soliciting illegal campaign contributions, stealing a check intended for his campaign and forcing a court candidate to use favored vendors. Last year, Justice Rolando T. Acosta, who was then a Manhattan Supreme Court judge, ruled that the Post could not question Justice Rivera regarding his grand jury testimony - key evidence in the Post's case, if it asserts truth as a defense to libel.  The Post has now subpoenaed nine judges as part of its attempt to show either that the stories were true, or that the paper did not act with malice, the standard Justice Rivera, as a public official, must satisfy. It is not clear what role or knowledge, if any, the subpoenaed judges may have had.

The nine judges and their present titles are:

• Ann Pfau, the state's chief administrative judge;
• Michael Pesce, presiding justice, Appellate Term, Second and Eleventh Judicial Districts;
• Ariel Belen, justice, Appellate Division, Second Department;
• Abraham Gerges, Brooklyn Supreme Court justice.
• Yvonne Lewis, Brooklyn Supreme Court justice.
• David Schmidt, Brooklyn Supreme Court justice.
• Leon Ruchelsman, Brooklyn Supreme Court justice.
• Arthur Schack, Brooklyn Supreme Court justice.
• Edward Rappaport, former Brooklyn Supreme Court justice.

The Post also subpoenaed Luz Bryan, the chief of security for the Brooklyn Supreme Court. Justice Schack yesterday called the subpoenas "a waste of time." "To me, it's one big fishing trip. I'll send them a rod," Justice Schack said in an interview, noting that the misconduct alleged in the Post's articles would have taken place before he joined the bench in 1999 and before he met Justice Rivera shortly thereafter. "I have nothing to offer the case."  The Office of Court Administration filed a motion to quash the subpoenas, arguing they were facially defective and that they did not comply with the special rules applicable to discovery from high-level state officials. "CPLR 2307 provides that a subpoena seeking documents from an officer of the State must be so-ordered by a Justice of the Supreme Court, based upon a motion on notice to the State officer, and CPLR 3120(4) makes clear that this requirement also applies to a discovery subpoena," Deputy Counsel John Eiseman wrote in a memorandum in support of the motion. "Accordingly, a subpoena duces tecum served upon a nonparty State officer in conjunction with a deposition subpoena must comply with the motion-on-notice provisions of CPLR 2307 and CPLR 3120(4)." The subpoenas represent just the latest twists in the three-year-old litigation.  Slade R. Metcalf and Katherine M. Bolger of Hogan & Hartson represent the Post. Mr. Metcalf declined to comment on the subpoenas. A spokesman for the OCA also declined to comment. Stuart A. Blander of Heller, Horowitz & Feit represents Justice Rivera. Justice Schack did see one silver lining to being subpoenaed. "I haven't had a pay raise. I could use the $18 deponents are paid for testifying," he said.


one who proudly wears a black robe said...

Most judges are honest, and very much welcome the opportunity to tell the truth under oath. Give us all subpoenas! Where can I pick mine up?

Anonymous said...

What the hell is going on? Why isn't the Post doing more on the court corruption. It's all over this sorry state.

Anonymous said...

I heard that interviews were conducted yesterday on who's going to replace the 9th JD Administrative Judge Frank Nicolai who, mostly alone, has driven 5 counties into the corrupt pits of hell. One mobster, divorce chief judge tony scarpino is actually up for the administrative job-- I can't stop laughing.

westchester court insider said...

A friend of Nicolai, Judge Schenkmen, also interviewed. This means the same old thing-- Nicolai's dirty hands all over the same corrupt ways....

retired judge said...

Any Judge that says he is honest is either crazy of drunk! Judges know the score, they are all for rent! The Post has inside info and should expose it all. Don't cave to these punks! The Post should keep going they are on the right track! This story is bigger than even Enron, Madoff or Nixon's removal! The Post must be careful because their own attorneys will be squeezed!

Anonymous said...

One thing I don't get is that the judges that are being subpoenaed are not some rogues working outside the system.

We all know this is business as usual with the Courts. They should put the screws to these judges and either get them to say that they acted on their own accord, or admit that this is the standard procedure and culture of the administration of the courts.

Anonymous said...

Well well well. Our judges are vindicated. The First Dept has affirmed that they are worth more money.
Now we will get more justice, wont we ??

Anonymous said...

To "One Who Wears the Robe"

You don't need a stinking subpoena. Write a book!

Anonymous said...

To "One Who Wears the Robe"

You don't need a stinking subpoena. Write a book!

Anonymous said...

I'll second the above.

Anonymous said...

Yes.... to the judge that wears a robe...receiving a subpoena to testify might appear interesting and innocuous..but testifying without perjury seems to be the complexity when the employees of OCA are subpoenaed to testify.

So it is not the issuance of subpoenas ..but getting the jurists and court employees to tell the truth when the subpoena is wild as that request is....a serious difficulty in reality.

Maybe you have an actual solution to serving corruption subpoenas to court workers that will dislodge and assure the truth during their testimony!

OCA condones and rewards lying under oath...I have documented proof and all employees that testified in federal court and their promotions and prime assignments... to solidify this crime! Everyone from OCA received A PROMOTION TO LIE...and everyone who told the truth was this JUSTICE or the THRID WORLD?

Eliot Bernstein said...

It's Nazi America and these are the Gestapo running and ruining the Courts and Country, acting above and in violation of the law and their oaths. This is not the type of law that earns respect or honor, rather Pitchforks. It appears if you want Democracy back, you’re going to have to take it back, as this is law that earns Torture, Removal of People's Rights, Deciders and people’s personal properties and liberties. Oh yeah and now removal of bank accounts, your grandma's too, your stock in GM FORD, Banks, etc. Where is the law? Economy bk'd by financial crimes and no law, you want law, you must take it back, you must hold them accountable. Our country is in far more trouble from these attorneys, judges and politicians gone on a robbery spree by disabling law and order to get away with their other criminal enterprises, the country is on a free fall on our watch.
Where is the law, it is like this article says, if you were good, they axed you out, like Anderson, if you were bad, welcome to the club, robe up and start screwing people don't worry no cops in the shops, People sound asleep. Protest like the 60's now against corruption, as already now People already have surrendered their rights in fear of terror and that is usually when governments start pogroms misusing laws to imprison people, go on wars of aggression, torture, etc.
Remember people of the blog that today there are people being tortured with no rights to counsel, no rights to law at all, starved or beaten to death like in a concentration camp with no rights or trials, while we complain about our trivial loss of rights in compare in these seemingly impossible to beat legal positions with crooks.
Our suits are Not trivial in purpose though as it may serve to help in a small way expose the scum and thus help those imprisoned falsely or stop more from dying in wars based on lies and other war crimes. DEMAND Justice, this is not justice, this is a mockery of justice, no, it is criminal injustice. If not stopped now, when? So keep on fighting them, as they feed on your fear of their perceived invincibility, it is a common thing in those suffering DELUSIONS of Grandeur. Fear them not, do not let them turn law upside down on you and go away futile, nothing is futile while Democracy on our watch is at risk from internal corruptions for a few.
Off with their heads!!! As always, guillotines free at

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See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:

               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
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               CLICK HERE TO SEE Part 2
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