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Crystal@CrystalCox.comAnderson Moves to Disqualify NY Attorney GeneralCLICK HERE TO READ ANDERSON’S FILING TO DISQUALIFY THE ATTORNEY GENERALUNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
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Christine C. Anderson,
Case No.: 07cv9599
Plaintiff-Appellant, (SAS) (AJP)
2d Cir. No. 09-5059-cv v.
The State of New York,
Defendants-Appellees.
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NOTICE OF MOTION
PLEASE TAKE NOTICE that upon the accompanying affirmation, Plaintiff-Appellant Christine C. Anderson will move this Honorable Court, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, at a date and time to be determined by the Court, for an order:
(1) DISQUALIFYING the Office of the New York State Attorney General from representation of defendants; and
(2) for such other and further relief as the Court may find just and proper.
Dated: New York, New York
September 14, 2010
Christine C. Anderson, plaintiff, pro se
227 Riverside Drive – Suite 2N
New York, New York 10025
917-817-7170 begin_of_the_skype_highlighting 917-817-7170 end_of_the_skype_highlighting tel
To: Monica Wagner, Esq., Assistant Attorney General, Office of the NYS Attorney General, 120 Broadway, 24th floor, New York, New York 10271
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
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Christine C. Anderson,
Case No.: 07cv9599
Plaintiff-Appellant, (SAS) (AJP)
2d Cir. No. 09-5059-cv
v.
The State of New York,
Defendants-Appellees.
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AFFIRMATION IN SUPPORT OF MOTION
I, Christine C. Anderson, make the following affirmation under penalties of perjury:
I, Christine C. Anderson, am the plaintiff-appellant in the above entitled action, and respectfully move this court to issue an order disqualifying the Office of the New York
State Attorney General from representing defendant-employees of the State of New York
in any legal proceeding involving the herein before any federal or state court, agency or any other tribunal. The reasons why I am entitled to the relief I seek, and pending remand to the district court for a new trial as herein explained, are the following:
I. Introduction
1. The trial court abused its discretion in denying my request for a new trial, a reversible error, inter alia. That error continues before this appellate body and requires immediate correction. Because of the unique perspective of the trial judge, the decision as to whether to grant a new trial is committed to the district court’s sound discretion and will be reversed only for a clear abuse of that discretion. Kempner Mobile Electronics, Inc. v. Southwestern Bell Mobile Systems, 428 F.3d 706, 716 (7th Cir. 2005); Latino v. Kaizer, 58 F.3d 310, 314 (7th Cir.1995). The trial judge advanced a miscarriage of justice by denying the application for a new trial. Remand is clearly indicated in this matter.
2. Fed.R.Civ.P. 59 does not list the grounds for which a new trial may be granted. (Wright § 95). In federal courts, common law must be looked to in determining the available grounds. Of the numerous grounds justifying a grant of new trial, one is that the “interests of justice” require a new trial. See e.g., Fort Howard Paper Co. v. Standard Havens, Inc., 901 F.2d 1373, 1379 (7th Cir. 1990) (affirming grant of new trial after a three-week jury trial). Among the grounds cited for seeking new trials are the following:
(1) Irregularity of the proceedings;
(2) Misconduct of jury;
(3) Accident or surprise;
(4) Newly discovered evidence;
(5) Insufficient evidence;
(6) Verdict against law;
(7) Error in law;
(8) Excessive or inadequate damages.
3. A court has broad discretion in considering a Rule 59(e) motion. Hagerman v. Yukon Energy Corp., 839 F.2d 407, 413 (8th Cir.), cert. denied, 488 U.S. 820 (1988). Rule 59(e) was adopted to clarify that “the district court possesses the power to rectify its own mistakes in the period immediately following the entry of judgment.” White v. New Hampshire Dep’t of Employment Sec., 455 U.S. 445, 450 (1982) (internal quotations omitted). A Rule 59(e) motion may be granted to correct a manifest error of law or fact, or to consider newly-discovered evidence. See Hagerman, 890 F.2d at 414.
II. The Attorney General’s Representation of the Defendants Constitutes
A Clear Conflict of Interest, and Violates Plaintiff’s Right to Due Process
4. In this action, plaintiff Anderson was confronted with an unquestionably unfair set of circumstances. She brought her complaint against three individuals, who, although employed by the State of New York, were also sued in their individual capacities. These defendants in turn were at all times represented by the New York State Attorney General. Thus, while the plaintiff charged the defendants with serious violations of law, the Attorney General stood before the jury defending these very same actions as proper and within the law. This arrangement seriously prejudiced the plaintiff, as jurors could and likely did conclude that the State of New York supported fully the conduct of the defendants.
Ongoing Conflict of Interest
5. Representation by the New York Attorney General’s office in the pending appeal continues the improper prejudice against plaintiff. Furthermore, not only did the Attorney General’s representation of the defendants unduly prejudice the plaintiff, but it also raised serious conflict of interest issues with respect to the defendants themselves. To protect their own rights, each of the defendants had to have their own attorneys in order to permit them to cross claim or make admissions, including their own right to protect their own individual rights in this appeal. Under New York State and federal conflict of interest rules, each of the defendants must be free to undertake these independent actions. To do so, they must have their own counsel. (See NYS Code of Professional Conduct Cannon 5 Conflict of Interest Rules.[1]) The Attorney General as a state attorney is bound by these rules as well. [2]
6. This constitutes New York State law, and the attorney who violates these safeguards must be immediately removed from the case. Further, should the defendants seek to waive the conflict- they would have to submit an affidavit to that effect to the court.
Notwithstanding a defendant’s attempt to waive his right to independent counsel, the court can deny the waiver, based on a finding that ultimately this conflict cannot properly be waived. The trail court improperly ignored the obligation to address the inherent conflict up to and including the trial. This court, however, must now disqualify the Attorney General from any representation of the defendants.
7. As a result of these conflict of interest issues, the Attorney General cannot properly represent the defendants, either as a group or individually, in these appellate proceedings. Each defendant must have the right to advance his or her own position on appeal, to cross claim against the others, and to bring a counterclaim against the State.
These actions most certainly could not be undertaken in a case where the Attorney General represents all the named defendants. All defendants clearly are in conflict with each other, especially in their individual capacities. Without question, the Attorney General violated its ethical rules and the public trust in undertaking to represent all of the defendants. The Attorney General continues to violate its ethical rules by appearing before this appellate body. This would be the case, even were it established that the defendants had sought to consent to such representation.
The Clear Need For Remand
8. The involvement of the New York Attorney General in refuting plaintiff’s allegations, which involved serious violations of federal and state law and ethical standards, and in presenting the case of each defendants, denied plaintiff’s due process and equal protection guarantees, and right to a fair and impartial trial. See Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (“if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental”) and Eldridge v. Williams, 424 U.S. 319 335 (1974) [3]
9. The conflict here is particularly acute given the nature of the claims brought by plaintiff Anderson. Plaintiff’s charges warranted an independent investigation by the New York State Attorney General’s Office to review the basic claims given that Anderson was formerly a Departmental Disciplinary Committee staff attorney with considerable experience and over the years received excellent evaluations. The fact is that these are not allegations from a lay person.
10. While at the DDC, Plaintiff Anderson was charged with investigating cases involving possible criminal and civil misconduct by attorneys. She carried out her duties as a duly authorized officer of the Court. The New York State Attorney General’s Office was therefore obligated to protect her and to investigate her claims of serious misconduct against the named parties. To the Contrary, the New York State Attorney General’s Office failed to do so.
11. The Attorney General is a publicly funded arm of the State. It was conflicted from the outset of this case because it could not possibly defend any of the defendants, while simultaneously investigating plaintiff’s claims of serious ongoing misconduct by the defendants. Indeed, no explanation has ever been provided as to why the Attorney General did not represent plaintiff Anderson against any of the original defendants. This was itself a misappropriation of public funds by a state investigative agency with prosecution powers.
12. Federal law mandates that a special prosecutor be substituted into the case, and this was not done. The actions of the Attorney General here confused, misled and confounded the jury, by creating a false impression that the acts were officially sanctioned by the state.
13. Furthermore, Christine Anderson’s allegations have substantial impact on the public, the bench and bar, and cannot be ignored by the New York State Attorney General’s Office merely because they were motivated to defend this lawsuit. This serious conflict demanded independent counsel for the defendants as a matter of fairness and high ethical conduct to all involved, particularly to Christine Anderson. Having denied independent counsel to the defendants, the Attorney General prejudiced plaintiff by making it appear to the jury that the State of New York and the New York State Attorney General’s Office supported defendants’ conduct. This was a burden Christine Anderson could never overcome and, at a minimum, warrants a new trial. The unfair burden continues before this appellate court.
14. Additionally, Remand is also certain as the trial Court was concerned about the aforestated conflict of interest and in one of its last instructions to the jury, the Court warned the jury not to draw a negative inference adverse to the defendants for their joint representation by the New York State Attorney General’s Office. That instruction was injurious to the plaintiff, Christine Anderson, in that it prejudiced the jury against her and in and of itself warrants a new trial for the following reasons:
a. It was one of the last instructions to the jury and thus was ingrained in the minds of the jury as a lasting impression. Furthermore, as one of the last instructions to the jury, it elevated its importance over and above all prior instructions as something that had to be considered indifference to all else.
b. There was no countervailing instruction to the jury that it could find a negative inference of the representation by the New York State Attorney General’s Office favorable to the plaintiff. This failure prejudiced the jury against the plaintiff by implying at a minimum, that the state supported all of the defendants’ conduct and found that it was within the bounds of the law.
c. Had the Court even given the jury an instruction not to draw a negative inference of the representation of the defendants by the New York State Attorney General’s Office as against either or both the plaintiff and the defendants, such an instruction only demonstrates the proof that there is an impermissible conflict of interest in the manner in which this case was conducted, that can only hurt one party over another. Further, the representation by the New York State Attorney General’s Office made it appear New York State supported the defendants’ conduct and that it was within the bounds of the law.
d. By the Court issuing the jury instruction not to draw a negative inference adverse to the defendants for their representation by the New York State Attorney General’s Office, the court preserved the argument to be raised in this motion and appeal.
e. Allowing all of the defendants to be represented by the same counsel and by the New York State Attorney General’s Office created an impermissible conflict of interest. Indeed, the conflict was so strong, that had the jury ruled against any one or all of the defendants, they would have been entitled to seek a new trial for impermissible conflict of interest as they would entitled to their own independent counsel.
This court is thus faced with the fact any unsuccessful litigant in this case appeal could be expected to move for and would be entitled to a new trial because of the impermissible conflict of interest, as all of the defendants are required to have their own independent counsel, and to be represented their own counsel.
15. The American Bar Association’s Code of Professional Responsibility elaborates on the duty of a public prosecutor such as the New York Attorney General to seek justice as follows:
“This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all ….” (ABA Code of Prof. Responsibility, EC 7-13, emphasis added.)
16. Therefore, a prosecutor’s duty of neutrality is born of two fundamental aspects of his employment. First, the prosecutor, in this case the Attorney General, is a representative of the sovereign, and consequently must act with the impartiality required of those who govern. Second, the Attorney General can at all times call upon the vast power of the government, by utilizing public funds, and therefore must refrain from abusing that power by failing to act evenhandedly.
17. These key duties are not limited to criminal prosecutions, but must also be observed in civil cases as well. These safeguards are included in the ABA Code. “A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlements or results.” (Id., EC 7-14, emphasis added.)
18. In the present case, the Attorney General was under the ethical duty to withdraw in order to preserve plaintiff’s right to a fair and impartial trial. In a case such as this, not only is the Attorney General’s neutrality essential to a fair outcome for the plaintiff, it is critical to the proper function of the judicial process as a whole. Our system of justice relies for its validity on the confidence of society. Without a continuing belief by the people that the system is just and impartial, the concept of the rule of law cannot survive. (See id., EC 9-1, 9-2.)
19. The New York State Attorney General is a public official elected by statewide ballot [4]. The American Bar Association’s Code of Professional Responsibility addresses the special considerations applicable to a lawyer who is also a public official as follows: “A lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties.” (ABA Code of Prof. Responsibility, EC 8-8.) “[A]n attorney holding public office should avoid all conduct which might lead the layman to conclude that the attorney is utilizing his public position to further his professional success or personal interests.” (ABA Committee on Prof. Ethics, opn. No. 192 (1939); see also People v. Conner, 34 Cal.3d 141, 146.)
20. The government’s investigative and prosecutorial interests must be balanced against the public interest in insuring that the individuals and organizations receive effective representation, and are accorded their full constitutional rights and protections.
21. There are at least two reasons why a court should satisfy itself that no conflict exists or at least provide notice to the affected party if one does. First, a court is under a continuing obligation to supervise the members of its Bar. E.g., In re Taylor, 567 F.2d at 1191; see Musicus v. Westinghouse Electric Corp., 621 F.2d 742, 744 (5th Cir.1980) (per curiam) (district court obligated to take measures against unethical conduct occurring in proceedings before it). Second, trial courts have a duty “to exercise that degree of control required by the facts and circumstances of each case to assure the litigants of a fair trial.” Koufakis v. Carvel, 425 F.2d 892, 900-01 (2d Cir.1970); see ABA Code of Judicial Conduct, Canon 3(A)(4).
22. For example, when a litigant’s statutorily appointed counsel is acting against that person’s interests because of a conflict that the party has not been informed of and cannot be expected to understand on his own, it can be concluded that the litigant is not receiving a fair trial. Cf. Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) (divided loyalties of counsel may create due process violation).
23. Attorneys are officers of the court, Clark v. United States, 289 U.S. 1, 12, 53 S.Ct. 465, 468, 77 L.Ed. 993 (1933), and are obligated to adhere to all applicable disciplinary rules, and to report incidents of which they have unprivileged knowledge involving violations of a disciplinary rule. ABA Code of Professional Responsibility, DR 1-102(A), 1-103(A); see In re Walker, 87 A.D.2d 555, 560, 448 N.Y.S.2d 474, 479 (1st Dep’t 1982) (as officers of the court, attorneys are required to notify parties and the court of errors including conflicts of interest).
24. Occupying a position of public trust, the Attorney General, as any public prosecutor is ‘possessed … of important governmental powers that are pledged to the accomplishment of one objective only, that of impartial justice.’ (Professional Responsibility: Report of the Joint Conference (1958) 44 A.B.A.J. 1159, 1218.) The duty of a government attorney has been characterized as ‘a sober inquiry into values, designed to strike a just balance between the economic interests of the public and those of the landowner,’ is of high order.” (Id. at p. 871.)
25. Canon 9, “A Lawyer Should Avoid Even the Appearance of Professional Impropriety,” has been invoked by this Court in attorney conflict cases. See, e.g., Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 234-35 (2d Cir.1977). The Model Rules of Professional Conduct, adopted by the ABA House of Delegates on August 2, 1983 contain similar provisions and language. See Rules 1.7, 8.4.
26. Furthermore, and central to the issue of preventing prejudicial influence of government attorneys on court proceedings, it is common for states to adopt statutes or regulations that prohibit those holding the office of Attorney General, as well as their
deputies and staff attorneys, from participating as attorneys in private litigation matters. (see e.g. Arizona Revised Statutes §41-191[5] Attorney general; Florida Statutes, Section 27.51(3), [6] Maryland Statutes and Procedures Governing Pro Bono Services of Attorney General Office[7] .)
27. The reason for adopting these restrictions is most obvious. For the Attorney General or any member of the staff to participate in a civil trial involving a private litigant will create the prejudicial inference that the state has reviewed and approved the position advocated by the government attorney. Such an inference can and likely will influence the outcome of the matter to the detriment of the opposing party.
28. It is for the above stated reasons that no Attorney General or staff member should be permitted to represent a private litigant in any adversarial proceeding. Only such an outright prohibition will properly preserve the standards of fairness and impartiality guaranteed to all litigants under federal and state constitutions. The present lack of statutory and/or ethical policy guidelines barring the participation of state law officers from representing private litigants in civil proceedings must be addressed by courts even if not by policy makers.
III. The Attorney General’s Office Cannot Ethically Continue Any Representation
29. The irregularity of the proceedings below were confusing, misleading and prejudicial to the plaintiff enough without the involvement of the Attorney General. Indeed, remand will result after review of the Instructions to the jury, the court marked-up Verdict Sheet after a written jury question to the court concerning the whitewashing of attorney ethics complaints and wide-practiced corruption that, in fact, counsel for the defendants- The New York State Attorney General’s Office- had an obligation to investigate, inter alia.
30. Improperly, the top law enforcement officer of the state was silent and action was, and is, absent. This cannot be condoned by this appellate court.
31. The involvement of the Attorney General’s office improperly left the jury, and proceeding itself, in an unclear, puzzling and convoluted condition. This confusion resulted in a proceeding which is in a word repugnant.
32. The mere presence of the Attorney General has at all times been prejudicial to the plaintiff and, at best, confusing to the jury. It has been established that both inconsistent or equivocal instructions and incorrect statements of the law may be prejudicially erroneous, Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 90 L.Ed. 350 (1946); United States v. Neilson, 471 F.2d 905, 908 (9th Cir. 1973); Bolden v. Kansas City Southern Ry. Co, 468 F.2d 580; Ratay v. Lincoln National Life Ins. Co., 378 F.2d 209 (3d Cir.), cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967), and that comments made by the court shortly before the jury retires are critical, Norfleet v. Isthmian Lines, Inc., 355 F.2d 359, 362 (2d Cir. 1966).
33. The lower court improperly allowed representation of the defendants by the Attorney General. In fact, the court below improperly condoned the Attorney General’s presence, accordingly directing the jury that the Attorney General’s representation was proper when it was not. It is generally assumed that juries “act in accordance with the instructions given them…and that they do not consider and base their decisions on legal questions with respect to which they are not charged.” Dist. Council 37 v. New York City Dept. of Parks and Recreation 113 F3d 347,356 (2d Cir. 1997).
34. It was never up to the jury to consider the ethical failings of the Attorney General’s representation. It was the obligation of the Attorney General’s office, and upon the failure of that duty, the obligation of the court.
35. There is also no record that the role of the Attorney General as defense counsel was properly and adequately explained to the jury. While this also constitutes another reversible error by the Court which will be addressed by the appeal itself, representation of the Attorney General’s office improperly remains.
IV. Newly Discovered Evidence At Trial Required Immediate Disqualification
36. The court gave the jury above-referenced instructions and its members adjourned to the jury room to deliberate at approximately 1:25 pm on Thursday, October 29, 2009. After the jury left the courtroom, the court first announced that she had denied the defendants’ pending motion for a directed verdict. She next stated words to the effect that she found that , “….Cahill was aware of the whitewashing allegations…” (Exhibit A, pages 808-809) The judge read this statement related to defendant Cahill’s conduct into the record as part of her order denying defendant’s directed verdict. This fact alone requires a new trial, and should have resulted in the Attorney General’s office immediately withdrawing from the case.
37. In addition, Courts have an obligation to report and order investigation into official and at times criminal misconduct. This is a duty of the Court. There is no record to date as to any action having been undertaken by the Court regarding this central question. (See also recent decisions on spoliation of evidence which are state and federal crimes. Acorn v. Nassau County - cv052301 (2009 USDistLEXIS 19459) and Gutman v. Klein, 03cv1570. 2008 WL 5084182, 2008 WL 4682208.
38. The Court’s finding of culpability on the part of Defendant Cahill constitutes newly discovered evidence, which directly supports the fundamental allegations of Plaintiff.
Remand to the District Court for a new trial is highly likely as the trial court abused its discretion in denying a new trial. The Attorney General’s failure to withdraw is, in fact, sanctionable and worthy of referral to the attorney ethics committee.
39. Clearly the newly discovered fact that defendant Cahill, as the head of the DDC and supervisor of the other named defendants, had full knowledge of whitewashing activities would in all likelihood have changed the outcome of the case. This central fact establishing the liability of all named defendants could not have been discovered earlier and is not merely cumulative or impeaching. (See Farragher v. Boca Raton , 524 U.S. 775, 18 S. Ct. 2275 (1998) which imputes liability to supervisors in any event. In Farragher, the Supreme Court held that an employer is vicariously liable for actionable discrimination caused by a supervisor. All defendants are jointly and severally liable here. In fact, the State of New York is liable under Faragher, all while representation of the Attorney General’s office improperly continued.
JUDICIAL FINDING KEPT FROM A DELIBERATING JURY
40. Here, the new evidence establishes that in the view of the Court, Defendant Cahill, the head officer of the DDC and the supervisor of the other defendants, had full knowledge of the practice of whitewashing as alleged by Plaintiff, leading to the parallel conclusion that whitewashing was accepted as a common practice by the defendants, and presumably other staff members of the DDC. Had such facts been confirmed during the trial stage, the jury would have come to know and understand the illegal activities that were accepted as everyday practice by the DDC staff, a finding totally consistent with a main element of Plaintiff’s case. At all times relevant, however, the Attorney General’s office improperly continued their representation of the very people the Court found had acted illegally.
41. The Court’s statement after the close of trial accepting the establishing the whitewashing activities by Defendant Cahill will demand remand for a new trial. Meanwhile, the damage to the rule of law and ethics by the Attorney General’s office must be dealt with by this appellate court.
V. Witness Tampering – Threat on Witness in a Federal Proceeding
42. The Attorney General and the trial court were aware that in August of 2008, one of the plaintiff’s witnesses, DDC staff attorney Nicole Corrado, was threatened. Two days prior to her deposition testimony, state employee, and DDC Deputy Chief Counsel, Andral N. Bratton, and who had been her immediate supervisor for approximately 5 years, confronted Corrado. Bratton advised Corrado that in 2007 he had admitted himself into a psychiatric hospital for serious emotional problems, that he had “suicidal tendencies,” and that he was “warning” her accordingly. When Corrado asked Bratton why he was warning her, Bratton simply repeated several times in a very serious and stern tone by saying, “I’m just warning you.”
43. Following Corrado’s deposition testimony on August 21, 2008, Bratton’s behavior toward Corrado became more harassing, troubling, frightening and threatening as he began to follow her inside and outside of the state office where they both worked. Corrado subsequently reported these serious issues to DDC chief counsel Allan Friedberg, Deputy chief Counsel Sherry Cohen, a defendant in the current proceeding, and DDC Chief Investigator Vincent Raniere- all of whom who took no required action.
44. Plaintiff’s former counsel, John Beranbaum, advised the court, and by copy, the Attorney General, of this incident in a letter to the court dated October 24, 2008. In the Beranbaum submission, it was made clear to the court and the Attorney General that Ms. Corrado was given a ‘“warning’ about the testimony she was to gave at the deposition[,]” and further advised that “Ms. Corrado is very upset about the entire experience.
45. Mr. Beranbaum again raised the issue on the record four days later on October 30, 2008. (See Exhibit, “B” – Transcript of October 30, 2008 hearing, Page 26 (lines 17-25), and page 27 (lines 1-8). The court, in responding to the letter advising of the threat on plaintiff’s witness, commented, “You [Mr. Beranbaum] seem to want to tell me something or report it to me. Okay. You report it to me.”
46. It is plaintiff’s belief that the court had an obligation to report the matter to federal agents and, further, to interview Ms. Corrado concerning the incident. In addition, the Attorney General also had an obligation as the state’s top enforcer of the law.
47. Plaintiff believes she has been severely prejudiced by the threat upon her witness, Ms. Corrado, and, as the lower court and Attorney General were aware, Ms. Corrado did not appear as a witness in this proceeding.
48. While plaintiff is aware that counsel within the Office of the New York Attorney General’s office offered to “fully” compensate Mr. Beranbaum for ALL of his legal fees, expenses, etc., if plaintiff settled her case, she is unaware of the exact timing of when the compensation offer, believed to be between $120,000.00 and $150,000.00, was actually made.
VI. Conclusion
49. For the reasons set forth, Moving respectfully requests that this Court in the interest of justice issue an order restraining the Office of the New York State Attorney General’s office from representing employees of the State of New York in any legal proceeding involving the herein before any federal or state court, agency or any other tribunal grant a new trial.
50. As noted, the participation of the Attorney General in failing to investigate the charges submitted by plaintiff against the defendants, and subsequently representing these same persons in the instant court proceedings, denied plaintiff’s constitutionally protected right to a fair and impartial trial. This denial of basic rights was compounded by unclear, confusing and convoluted instructions to the jury, discovery of new evidence and serious allegations of intimidation of witnesses, which all support the de novo pending appeal and granting of the instant motion for disqualification.
51. Wherefore, Moving respectfully requests that the court grant the within Motion, as well as such other and further relief that may be just and proper. I declare under penalty of perjury that the foregoing is true and correct.
Executed on September 14, 2010
New York, New York Christine C. Anderson
Plaintiff, Pro Se
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[1]
http://www.law.cornell.edu/ethics/ny/code/NY_CODE.HTM ; Conflict of Interest Disciplinary Rule 5
http://www.law.cornell.edu/ethics/ny/code/[2] As head of the Department of Law, the Attorney General is both the “People’s Lawyer” and the State’s chief legal officer. As the “People’s Lawyer,” the Attorney General serves as the guardian of the legal rights of the citizens of New York, its organizations and its natural resources.
In his role as the State’s chief legal counsel, the Attorney General not only advises the Executive branch of State government, but also defends actions and proceedings on behalf of the State.
http://www.oag.state.ny.us/our_office.html[3] The Supreme Court set out the following balancing test for applying procedural due process protections: “[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
[4] The fact that the Attorney General is elected by the voters of New York State raises a question with respect to the qualification of the jurors. No juror in the present case was asked whether he or she had voted for Attorney General Andrew Cuomo at the last election, or, for that matter, whether they supported the actions undertaken by him since assuming office, or further. whether they, as a general matter, agree with the general or specific policies of or initiatives undertaken and/or advocated by his office.
[5] B. The attorney general and his assistants shall devote full time to the duties of the office and shall not directly or indirectly engage in the private practice of law or in an occupation conflicting with such duties, except:
1. Such prohibition shall not apply to special assistants, except that in no instance shall special assistants engage in any private litigation in which the state or an officer thereof in his official capacity is a party.
2. Assistant attorney general may, but in no circumstances shall be required to, represent private clients in pro bono, private civil matters under the following circumstances:
(a) The representation will be conducted exclusively during off hours or while on leave and the attorney will not receive any compensation for such services.
(b) The client is not seeking an award of attorney fees for the services.
(c) The services are for an individual in need of personal legal services who does not have the financial resources to pay for the professional services or for a nonprofit, tax exempt charitable organization formed for the purpose of providing social services to individuals and families.
(d) The representation will not interfere with the performance of any official duties.
(e) The subject matter of pro bono representation is outside of the area of practice to which the attorney is assigned in the attorney general’s office and the activity will not appear to create a conflict of interest.
(f) The activity will not reflect adversely on this state or any of its agencies.
(g) The assistant attorney general’s position will not influence or appear to influence the outcome of any matter.
(h) The activity will not involve assertions that are contrary to the interest or position of this state or any of its agencies.
(i) The activity does not involve a criminal matter or proceeding or any matter in which this state is a party or has a direct or substantial interest.
(j) The activity will not utilize resources that will result in a cost to this state or any of its agencies.
(k) The attorney’s supervisor may require the attorney to submit a prior written request to engage in pro bono work which includes a provision holding the agency harmless from any of the work undertaken by the attorney.
[6] Florida Statutes,Section 27.51 provides:”Each public defender shall serve on a full-time basis and is prohibited from engaging in the private practice of law while holding office. Assistant public defenders shall give priority and preference to their duties as assistant public defenders and shall not otherwise engage in the practice of criminal law.” (e.s.)
[7] Private practice of Law and Pro Bono Representation.
Posted by Corrupt Courts Administrator at 7:43 AM
17 comments:Have had it with cuomo said…
I like Anderson’s vote on Election Day! Great motion!
Everyone should vote on the next election day to DISQUALIFY everyone who currently holds office of any kind. Yep, Andy, that includes you. The thuggery at the attorney general’s office must end. Andy and Elliot can go off and play golf, etc., with Tiger. New Yorkers have had it with spineless, ass-kissing-for-supporters-only corrupt bastards operating under the color of law. I’m a lifelong democrat but will NOT be voting for Andrew Cuomo ever again.
September 15, 2010 8:44 AM
Anonymous said…
The Office of Andrew Cuomo is pro pedophiles and that is why he protects his friends such as Bernadette E. Lupinetti, Esq. from Orange County New York. A pimp selling children in child custody cases to be sexually exploited.
September 15, 2010 9:08 AM
Anonymous said…
Christine Anderson you rock!
Albany, Andy, Houston
You got a problem!
Paladino won!
September 15, 2010 9:09 AM
Anonymous said…
Christine Anderson you rock!
Albany, Andy, Houston
You got a problem!
Paladino won!
September 15, 2010 9:09 AM
Anonymous said…
Andy and Eliot can take Sheldon & Lippman with them!
The baseball bats are out guys!
September 15, 2010 9:10 AM
Anonymous said…
“THERE IS NO CRUELER TYRANNY THAN THAT WHICH IS OPERATED UNDER THE COVER OF LAW AND WITH THE COLORS OF JUSTICE”
September 15, 2010 9:12 AM
Anonymous said…
Bratton advised Corrado that in 2007 he had admitted himself into a psychiatric hospital for serious emotional problems, that he had “suicidal tendencies,” and that he was “warning” her accordingly
what was this guy going to make up paperwork for her, pass it around behind her back………
that is an old one
you guys gotta think of new tricks!
September 15, 2010 9:25 AM
LE said…
Christine, you’re my hero!! Now, let’s ALL go after the AG’s Office full force with our motion’s to disqualify!!!
I can’t wait to see how the AG’s Office responds to my motion and letter to disqualify!!
Best Regards,
LE
September 15, 2010 10:45 AM
Anonymous said…
this is very interesting. will be more interesting to see some real action come from it and best of luck to Christine Anderson.
I’ve been watching these comments about Will Galison being a “plant”. Let me get this straight:
Hoffer is the son-in-law of Zbigniew Brzezinski and therefore a pawn of the CFR and the New World Order
The FBI is the organization that hasn’t done a damn thing for us all this time and has harmed many of us.
Golia is the judge who stole Sunny Sheu’s house from him and had him kidnapped according to an NYPD Officer and you can read about this at the BlackStarNews.com.
Golia may or could be involved in the death / murder of Sunny Sheu and it is absolutely clear that Golia has some serious problems with the Sunny Sheu case by permitting the Finance Company involved in Illegally “buying back” Sunny’s property from a Fraudulent Buyer that the Finance Company should have never Closed with in the first place and did so for only $1000 when Sunny’s mortgage had been at just over $200,000.
That type of great “under market price” transaction is PER SE SUSPECT to any reputable member of the Judiciary or Oversight or Federal authorities not to mention Sunny had 2 NYPD Officers who were trying to come forward before Golia with evidence from the Criminal prosecution of the Fraud - Fake buyer and Seller in the first place??
So, these three parties are “pissed” at Will Galison, and that makes Galison ……bad?
September 15, 2010 11:53 AM
Eliot Bernstein / Bat Out of Hell / Iviewit said…
Go Christine, I sat on the edge of my seat and wondered when the charge of criminal Title 18 Obstruction and Obstruction of Fed Witness and Obstruction through Conflict would be asserted against the AG Clown Cuomo but I guess it is there subtly in the call for Special Prosecutor and Obligations of those in charge.
Still I feel that Court should be put on notice that allowing the conflict is obstruction so if they continue, wham we are reporting it and their felonies to the man, right now the man with no cajones, HoldOff and other appropriate oversight and criminal authorities. Every related case should file this document with criminal authorities with jurisdiction demanding investigation.
Where’s the Press???
Who is Will?
Bat Out of Hell on Bat Phone Calling the Troops.
Question for Luisa have you filed to get rid of NY AG Cuomo or filed criminal complaints against the office for their part in the gang raping of your rights and personal liberties to cover up for slimedog millionaire Isaacs?
Eliot I. Bernstein
Inventor
Check Out
Eliot’s Testimony at the NY Senate Judiciary Committee Hearings Part 1
http://www.youtube.com/watch?v=8Cw0gogF4Fs&feature=player_embeddedand
Part 2 @
http://www.youtube.com/watch?v=Apc_Zc_YNIk&feature=relatedand
Christine Anderson Whistleblower Testimony @
http://www.youtube.com/watch?v=6BlK73p4Ueoand
Eliot Part 1 - The Iviewit Inventions @
http://www.wethepeopletv.com/September 15, 2010 2:11 PM
Anonymous said…
Is there anyone else who is going to Federal Court to file for violation of Civil Rights for the failure of the OCA, Disciplinary Commissions, Courts, etc., to protect Constitutionally Protected rights and to do the jobs they are required to do by law and rule?
Just asking.
September 15, 2010 2:15 PM
Anonymous said…
All the Anderson info and action is great. But, if the Feds were really going to “rock” NY as stated over two years ago, you may think they would just show up to this event tomorrow sponsored by the Wall Street Journal featuring Gov Paterson and former Govs Spitzer and Pataki.
Markopoulous contacted Spitzer as AG about Madoff and we all know Frank Brady and Kevin McKeown wrote to Governor Paterson about a Special Prosecutor and Pataki’s links to corruption and likely organized crime are infamous even though the Feds never did anything about it and stuck New Yorkers with this great system
Think the G-Men will show up? Not talking about the Football Giants here either:
http://blog.timesunion.com/capitol/archives/31797/spitzer-paterson-pataki-all-on-one-great-stage/September 15, 2010 4:11 PM
Anonymous said…
Has anyone clued the Paladino campaign into this blog and Cuomo’s history of ignoring complaints?
Cuomo’s has done nothing in the four years he’s been AG, and now he is campaigning as someone who is going to clean up the mess he’s been ignoring.
I hope Paladino has the stuff to call him on this.
September 15, 2010 6:16 PM
Anonymous said…
Yes, I hope Paladino takes Cuomo’s mask off and ask him about the sexual abusers he helps.
September 15, 2010 7:19 PM
T Finnan said…
Answer to 2:15; yes within this week. Answer to 6:16; yes; Paladino is aware. AG Cuomo has covered up corruption with his office. CuomoTARP.blogspot.com exposes and will expose more about Cuomo. Check out: Two faces as Cuomo changes pay to play to indirect payment; or, Cuomo as Gollum; or, the Cuomo babuska doll and its faces of Cuomo; or, Cuomo’s silver spoon removed; or,Cuomo drenched in Albany Swamp Slime; or,Cuomo, 1.2 billion fraud, is it the Peter or Dilbert principle; or, Cuomo as Keystone cop; and Can Cuomo clean his nest.
September 15, 2010 7:25 PM
Eliot said…
Ok, if none of you NuYookers have the cojones (excuse my vulgarity) to arrest Cuomo, Spitzer and some Lawyers & Judges who are actually criminals I guess I will just have to fly there again and
citizen arrest their criminal butts.
First, I would get the kids and huddle them together for a protest party. We would need signs so that we could march on their lawns first and greet them at dawn with video cameras and loud questions demanding public answers.
Then follow them to work with a set of leg iron and cuffs, demand they turn themselves in or else, when they run like the cowards they are, chase them down, tackle them and bring them in for prosecution of their felonies despite name, elitist delusion, position or title.
In New York we don’t give a damn who or what you are, if you ripped us off we want blood and all our money back. Wait, you NuYookers really want a Cubbie fan to clean your shit hole of corruption, I guess if necessary, I will but I thought more of you.
Next, once we have chained them and cuffed them and although my personal desire would be to torture them for those they have tortured and wronged in their crimes but I am not them, so I will leave that to
the long arm of justice to decide and a jury of their peers.
If Justice fails to do justice claiming others above the law or immune why just grab their butt, cuff them and take them to the next available processing center for felons, you got rights NuYookers, use them.
http://www.newyorkinjurylaw-blog.com/2010/05/citizen%E2%80%99s-arrest-new-york-personal-injury-attorneyThe definition is simple enough: a “citizen’s arrest” is an arrest by any civilian (not necessarily a “citizen” in some states) who does not have official government authority to make an arrest. In fact “citizen arrests” are legal in every state, though state laws with respect to the situations in which such arrests are permissible vary.
As a general rule, every state permits a civilian to make
an arrest if a “felony” (a very serious crime) is being perpetrated in the presence of that civilian. Where differences among the states occur is in matters involving “misdemeanors” (less serious crimes), and where a felony is not witnessed by the civilian.
Since 2007, Karl Rove has (at least) three times been the subject of attempted citizen’s arrests. In Iowa last July, a group of four attempted to place him under citizen’s arrest when he went to Des Moines to speak at a fundraiser.
As it would turn out, the four would be citizen-constables were themselves arrested. They were subsequently cited for trespassing and released. The Cedar Rapids Gazette reported that two of the four had attempted a citizen’s arrest of Rove one year previously. That time they were also arrested, but were released without charges.
In October, a Code Pink protester in San Francisco tried to slap the cuffs on Rove for treason while he participated in a panel discussion for the Mortgage Bankers Association’s annual convention. Code Pink’s official release on the incident (which contains the Arrest Complaint against Rove) states that five protesters were removed from the building but not charged.
So, can people legally perform citizen’s arrests? The short answer is yes. In virtually all states, private individuals can lawfully arrest someone whom they witness committing a felony.
New York State Consolidated Laws hold that:Any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence. New York Penal Code§ 140.05 Arrest without a warrant; in general.
A person who has committed or is believed to have committed an offense and who is at liberty within the state may, under circumstances prescribed in this article, be arrested for such offense although no warrant of arrest therefor has been issued and although no criminal action therefor has yet been commenced in any criminal court.
§ 140.30 Arrest without a warrant; by any person; when and where authorized.
1. Subject to the provisions of subdivision two, any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence.
2. Such an arrest, if for a felony, may be made anywhere in the state. If the arrest is for an offense other than a felony, it may be made only in the county in which such offense was committed.
§ 140.35 Arrest without a warrant; by person acting other than as a police officer or a peace officer; when and how made.
1. A person may arrest another person for an offense pursuant to section 140.30 at any hour of any day or night.
2. Such person must inform the person whom he is arresting of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical.
3. In order to effect such an arrest, such person may use such physical force as is justifiable pursuant to subdivision four of section
35.30 of the penal law.
§ 140.40 Arrest without a warrant; by person acting other than as a police officer or a peace officer; procedure after arrest.
1. A person making an arrest pursuant to section 140.30 must without unnecessary delay deliver or attempt to deliver the person arrested to the custody of an appropriate police officer, as defined in subdivision five. For such purpose, he may solicit the aid of any police officer and the latter, if he is not himself an appropriate police officer, must assist in delivering the arrested person to an appropriate officer.
If the arrest is for a felony, the appropriate police officer must, upon receiving custody of the arrested person, perform all recording, fingerprinting and other preliminary police duties required in the particular case.
In any case, the appropriate police officer, upon receiving custody of the arrested person, except as otherwise provided in subdivisions two and three, must bring him, on behalf of the arresting person, before an appropriate local criminal court, as defined in subdivision five, and the arresting person must without unnecessary delay file an appropriate accusatory instrument with such court.
2. If (a) the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law and (b) owing to unavailability of a local criminal court the appropriate police officer having custody of the arrested person is unable to bring him before such a court with reasonable promptness, the arrested person must be dealt with in the manner prescribed in subdivision three of section 140.20, as if he had been arrested by a police officer.
3. If the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, the arrested person need not be brought before a local criminal court, as provided in subdivision one, and the procedure may instead be as follows:
(a) An appropriate police officer may issue and serve an appearance ticket upon the arrested person and release him from custody, as prescribed in subdivision two of section 150.20; or
(b) The desk officer in charge at the appropriate police officer’s station, county jail or police headquarters, or any of his superior officers, may, in such place, fix pre-arraignment bail and, upon deposit thereof, issue and serve an appearance ticket upon the arrested person and release him from custody, as prescribed in section 150.30.
4. Notwithstanding any other provision of this section, a police officer is not required to take an arrested person into custody or to take any other action prescribed in this section on behalf of the arresting person if he has reasonable cause to believe that the arrested person did not commit the alleged offense or that the arrest was otherwise unauthorized.
5. If a police officer takes an arrested juvenile offender into custody, the police officer shall immediately notify the parent or other person legally responsible for his care or the person with whom he is domiciled, that the juvenile offender has been arrested, and the location of the facility where he is being detained.
6. As used in this section:
(a) An “appropriate police officer” means one who would himself be authorized to make the arrest in question as a police officer pursuant to section 140.10;
(b)
An “appropriate local criminal court” means one with which an accusatory instrument charging the offense in question may properly be filed pursuant to the provisions of section 100.55. ""
