Wednesday, June 13, 2012

Judge Hayes has sanctioned me for mentioning the Vista Unified v. Dr. B. J. Freeman case on my website

Judge Judith Hayes, San Diego Superior Court

See all posts re Dr. B.J. Freeman.
See all posts re Stutz v. Larkins.

Is a judge allowed to order a citizen to agree with the actions of public entities and their lawyers? Am I allowed to say that I think a lawyer made a mistake, or that I disagree that a public entity should behave a certain way? Of course I am, but Judge Judith Hayes is trying to convince me otherwise. She tells me I don't understand constitutional law. Judge Hayes' May 30, 2012 decision in Stutz Artiano Shinoff & Holtz v. Larkins states (page 2, paragraph 6), “…[Stutz] sought to remove a statement made by defendant that plaintiff paid witnesses to testify as plaintiff’s clients desired.”

This is a false statement by the court. Not only did I never make such a statement, but Plaintiff never even accused me of making such a statement.

The words have been changed by the judge to create a different meaning. Paying a witness to testify a certain way is different from suing an expert whom one has paid to do an evaluation.

The case at issue is the lawsuit against Dr. B. J. Freeman by Vista Unified School District for failing to testify as the district wished in a special education hearing. Dr. B. J. Freeman was sued for violating her contract. She objected that she wasn’t paid to testify a certain way; she was paid to evaluate students. At first Stutz argued that she was also obliged to testify as the school wished, but then Stutz realized that this was not true, and the lawsuit against Dr. Freeman was dropped. Stutz implicitly admitted that she hadn't been paid to testify a certain way.

Dr. Freeman's contract did NOT include a requirement that she testify as the district wished, at least not if she believed such testimony to be false, and I never said that it did.

But Judge Hayes' May 30, 2012 decision becomes more blatantly inaccurate in paragraph 7 of page 2: “Defendant continues the same here, stating that plaintiff has pressured witnesses to perjure themselves (See Plaintiff’s Ex. C, p. 5)

In fact, Plaintiff’s Exhibit C, p. 5 says, “Attorneys who have helped schools avoid revealing events in schools are in charge of training both new board members and school attorneys. Dan Shinoff trains board members and employees as well as attorneys.”

Keeping events secret and pressuring witnesses to perjure themselves are completely different things. The court’s reference to Ex. C, p. 5 was made without regard to the truth.

Judge Hayes' recent decision denies my constitutional right to due process and fair and equal treatment under the law.

Judge Hayes should have ordered Stutz law firm to return the $3000 March 10, 2010 sanction that was based on an injunction that was ruled unconstitutional by the Court of Appeal.

See California Court of Appeal Aug. 5, 2011 decision in Maura Larkins' favor). Instead, the judge now gives a new $5000 sanction based on that very same March 10, 2010 decision. And what is the purpose of the $8000 in sanctions? It seems to be to impoverish me so that I will not be able to proceed in court to obtain a minimal standard of justice.

Also, Judge Hayes claims that I currently have third-party comments on my site that have been removed. I produced print-outs that showed the comments had been removed; still, the court claims these comments are currently on my site and uses the comments to justify sanctions. Also, the sanctions are justified by my having certain public records on my site.

Here are more details from the Freeman case:

I am not expressing any opinion about the ethics or legality of the actions of Vista Unified's lawyers in this case. I'm just reporting what the case was about.

Dr. B. J. Freeman's defense against VUSD's breach of contract lawsuit was that there was nothing in her contract that required her to make statements under oath that she believed to be untrue.

Attorney's Daniel Shinoff and Gil Abed's described Dr. Freeman's position in their Opposition to Demurrer, p. 4, lines 21-28:


"...Defendant [Dr. B.J. Freeman] urges the court to make the District plead ‘specific language which purportedly bound Dr. Freeman to offer testimony that she believed was not accurate, i.e., that she had contracted to give testimony in support of a plan developed by plaintiff which was inconsistent with her recommendations and which was changed without her input.'

"...This curious passage is pregnant with Defendant’s factual opposition to the Complaint—that the plan was changed without her knowledge or input, and that the District asked her to perjury herself. The Court simply must ignore these allegations which belong in an Answer."

Page 5, lines 6-11:

“The DISTRICT has alleged that ‘one week before a hearing was to begin, after the DISTRICT had expended substantial resources and payments preparing for the Due Process Hearing, FREEMAN, without justification, cause, or reason, indicated that she would not…testify on behalf of the DISTRICT…

"This was, at the very least, an anticipatory breach. The DISTRICT’s settlement with the student may be relevant as to damages, however, that is a factual issue not properly raised on Demurrer.”

Apparently the district considered, but did not follow, the doctor’s recommendation for placement, but the District nevertheless felt that the doctor would still be required to testify under oath that the District’s decision was in line with her evaluation of the child.

Page 5 lines 22-26

"Defendant promised to…support the DISTRICT if students contested the DISTRICT’S placement where the placement was based on [emphasis added] Defendant’s assessment of the program and recommendation for placement…"



Here's another judge who likes to keep public records secret, and to flagrantly favor one side over the other in litigation.

The courts: Judge tried to keep evidence secretBy David Heath Seattle Times June 14, 2012 Judge Sharon Armstrong ordered InfoSpace records sealed when a shareholder, arguing that executives had deceived investors, sued the company. Then she sealed her order that put the case on hold.

For more than two years, reams of documents showing that InfoSpace executives deceived stockholders were sealed in a shareholder lawsuit at the King County courthouse.

The records contained evidence that some InfoSpace executives used accounting tricks to create the illusion of success — information that the company's faithful investors would certainly want to know.

But King County Superior Court Judge Sharon Armstrong allowed InfoSpace lawyers to stamp as confidential hundreds of documents in the case.

If the documents got out, they might fall into the hands of stockholders who were suing InfoSpace executives for deception and self-enrichment in a class-action lawsuit being heard a few blocks away in federal court, she reasoned.

"I've never heard of a judge doing that," said Steve Berman, a lawyer in the federal lawsuit who has read Armstrong's ruling. "It seems to me a very strange logic. Her role is not to be taking the side of the company."

Armstrong also said she was concerned that if the shareholder lawsuit went forward, InfoSpace might have to admit to financial misdeeds by insiders that could cause the company to report a $1 billion loss, which "would destroy the company."

"She was acting on behalf of the company and not on behalf of the public," said Judith Endejan, an attorney who argued the case for The Seattle Times.

Armstrong recently told The Seattle Times by e-mail: "The decisions made in the InfoSpace case, like decisions made in all cases, were based on the law and the factual record presented to the court."

InfoSpace, once the region's biggest dot-com, provides Internet services such as search engines. At the height of the Internet stock mania, the company was worth $31 billion.

In early 2003, The Seattle Times asked Armstrong to unseal InfoSpace records filed in the shareholder lawsuit, citing the state's constitution and past court cases. After she refused, The Times appealed her decision to the Washington Supreme Court.

In a 9-0 decision last year, the justices reversed Armstrong's decisions that allowed wholesale sealing of the court records.

"Proceedings cloaked in secrecy foster mistrust and, potentially, misuse of power," Justice Tom Chambers wrote in the opinion. In the landmark decision, the justices ruled that court records in civil lawsuits are open unless there are compelling reasons for closing them.

Armstrong had ruled that many of the records were protected by attorney-client privilege and should be sealed. But the Washington Supreme Court said the privilege was lost once such documents were filed in court and used by her to make a decision.

[Maura Larkins comment: Who was Judge Armstrong protecting? Naveen Jain! His company Intelius was taking $19 a month out of my checking account as part of a widespread fraud. I believe a class action suit is pending on the Intelius fraud.]

The King County case, known as Dreiling v. Jain, was brought by shareholder Thomas Dreiling, a Seattle lawyer. His lawyers sued InfoSpace founder Naveen Jain and others, accusing them of deceiving shareholders and illegally selling stock based on insider information.

The suit was a "shareholder derivative action." In such cases, a shareholder can ask the company to pursue alleged misconduct against the wrongdoers, with any money recovered going to the company. Usually, the company creates a special committee that investigates the claims and decides whether to pursue the action. InfoSpace's committee investigated and sent a report to Judge Armstrong, asking her to dismiss the case. Instead, she put it on hold and sealed her order.

"There are very narrow circumstances under which a judge can seal her own orders," such as matters of national security or protecting trade secrets, said Floyd Abrams, a First amendment lawyer in New York.

[Maura Larkins comment: Not surprisingly, the company's lawyer has lovely things to say about Judge Armstrong. See next.]

But Steve Sirianni, plaintiff's lawyer in the case, defended Armstrong. "I know of no lawyer appearing before Judge Armstrong in this case who has anything but the utmost respect for her rulings, fairness and impartiality," he said last week in an email to the judge, who had her bailiff send it to The Times.

The federal class-action suit was settled last year for $34.3 million.

In December, Jain and more than a dozen key InfoSpace officials settled the Dreiling lawsuit, with Jain agreeing to pay $3 million. Others are paying $3.4 million. InfoSpace's insurance, covering executive misdeeds, is paying up to $43 million to settle outstanding lawsuits.

As part of the settlement, Dreiling, Jain and the former InfoSpace executives signed confidentiality agreements and will not comment.

UCSD Professor Published After Two-Year Court Battle

I do not understand why UCSD felt it had the right to gag this professor. Was it motivated by politics? Did the administration calculate that the professor wouldn't be able to challenge the decision? How many people has this happened to? Were there others who didn't have the determination to go to court? As the professor said, "If you have to bankrupt yourself to protect your academic freedom, then academic freedom is dead.”

Professor Published After Two-Year Court Battle
Ayan Kusari
The Guardian
UCSD
June 03, 2012

It’s been a long wait for sociology professor Richard Biernacki. After fighting in court for two years — and taking out a second mortgage to fund the attorney fees — Biernacki’s formerly banned manuscript has finally been published. The work, titled Reinventing Evidence in Social Inquiry, was released for sale by Paul Grave Macmillan publishes next month on July 3.

It has been almost three years since the UCSD Social Sciences department placed a gag order on Biernacki’s manuscript, which is about peer review in the social sciences. The order, written by Dean of Social Sciences Jeff Elman, asked Biernacki to stop “harassing” a colleague within the UCSD Sociology Department whose research methods Biernacki critiqued in his book.

The gag order also stated that Biernacki could be fired if he requested data from the National Science Foundation. In response, Biernacki hired an attorney and took the case to court. After two years of conflict, both in and out of court, the administration retracted its order last June.

Biernacki said that the university administration’s misinterpretation of his work as a personal attack on another faculty member was both a personal and professional setback.

“My salary was kept artificially low, because I wasn’t promoted,” he said. “The recognition that I would have received in my field two years ago did not come my way. I had to pay a steep attorney’s fee to fight the UC legal team in Oakland. Being on a level playing field is costly. If you have to bankrupt yourself to protect your academic freedom, then academic freedom is dead.”

Biernacki’s book states that peer review is frequently less thorough in the social sciences than in the natural sciences. Biernacki argues that this lack of peer review in his field has led to the widespread generation of data that is ambiguously valid and non-replicable. He said that his book was intended to be a methodological critique, not a personal attack.

“All the examples in the book are about problems that come along with trying to interpret the meaning of primary texts,” he said.

One of the book’s chapters appraises the reasoning used by sociologists to classify the statements made in the autobiographies of Nazis. Another chapter critiques sociologists’ attempts to classify book reviews as positive or negative.

“I can see why people feel uncomfortable, because I’m critiquing methods that are so widely used,” he said. “But I’m not exempt. I’m critiquing my own use of these methods as well, because I have used them myself. I think social scientists treat each other with kid gloves, because we’re so unsure of what we’re doing.”

Biernacki said that a written order from the administration was the wrong avenue to use in handling his case.

“If someone had a complaint about my critique, it’s the academic senate they should have gone through,” he said. “We have a faculty-run legal court on campus. We don’t need the administration to get involved.”

Diane Hamann, Director of the UCSD Academic Senate, could not be reached as of press time. Social Sciences Dean Jeff Elman is on sabbatical and could not be reached.

This story is an updated version that had been adjusted to address corrections.

Tuesday, June 12, 2012

George Zimmerman’s wife charged with perjury

George Zimmerman’s wife charged with perjury
By KYLE HIGHTOWER
The Associated Press
June 12, 2012

The wife of Trayvon Martin’s shooter was charged with perjury Tuesday, accused of lying when she told a judge that the couple had limited funds during a hearing that resulted in her husband being released on $150,000 bond.

Shellie Zimmerman, 25, was released on $1,000 bond. George Zimmerman has pleaded not guilty to second-degree murder in the teen’s slaying and had been out on the bond after the April 20 hearing. However, Circuit Judge Kenneth Lester on June 1 revoked the bond and ordered Zimmerman returned to the Seminole County Jail. Lester in a strongly worded ruling said the Zimmermans lied about how much money they had.

George Zimmerman’s attorney Mark O’Mara has said the couple was confused and fearful when they misled court officials about how much money they had. A call and email to him on Tuesday weren’t immediately returned.

Records show Shellie Zimmerman in the days before the hearing transferred $74,000 in eight smaller amounts ranging from $7,500 to $9,990, from her husband’s credit union account to hers, according to an arrest affidavit. It also shows that $47,000 was transferred from George Zimmerman’s account to his sister’s in the days before the bond hearing.

Four days after he was released on bond, Shellie Zimmerman transferred more than $85,500 from her account into her husband’s account, the affidavit said. The affidavit also said that jail call records show that George Zimmerman instructed her to "pay off all the bills," including an American Express and Sam’s Club card.

A state attorney investigator met with credit union officials and learned that she had transfer control of her husband’s account.

Jeffrey Neiman, a former federal prosecutor now in private practice, said cash transactions in excess of $10,000 usually trigger a reporting requirement by the bank to multiple government agencies — including the IRS.

"If Mrs. Zimmerman intentionally structured the financial transactions in a manner to keep the offense under $10,000, not only may she have committed perjury in the state case, but she also may have run afoul of several federal statutes and could face serious federal criminal charges," Neiman wrote in an email to The Associated Press.