Judge Allen J. Jarasitis:
Judas to Justice
A Battle in the War between Barb
the Office of Bar Counsel and the Board of Bar Overseers
On the morning of September 24th, 2002, I hurriedly wrote two motions -- one seeking the court to pay for subpoenas and one for the court to pay my fees for my services as criminal defense attorney in three criminal actions for an indigent defendant.
By accident, I printed out two sets of the motion for subpoena costs rather than one set for the subpoenas and another for the fees.
I had accidentally also written the name of one of my grandsons (a charmer of whom I had been thinking) -- Alexander -- rather than my client's name -- Augustine.
I did not notice my errors until I got to court and was ready to file and serve them. So I quickly corrected them in my handwriting. Messy, but they'll do the trick, I thought.
The story below explains the repercussions -- unnecessary but malicious when used for an ulterior motive by a judge and the Office of Bar Counsel.
May they be hoisted on their own petard! May the judge be impeached and the Bar Counsel, Daniel Crane, and his assistant, Susan Strauss Weisberg, be disbarred for unethical and perhaps criminal behavior.
We do not need such despicable people in our judicial system.
Barbara C. Johnson
Attorney at Law
6 Appletree Lane
Andover, MA 01810-4102
PHONE 978-474-0833 FAX 978-474-1833
20 June 2003
Susan Strauss Weisberg
Assistant Bar Counsel
Office of the Bar Counsel
75 Federal Street
Boston, MA 02110Re: BBO File No. B2-03-0012 (Bar Counsel)Dear Attorney Weisberg:
I would have preferred receiving Judge Allen J. Jarasitis’ letter, pursuant to Section 2.2 of the Board of Bar Overseers Rules, to you as well as one merely from you. Section 2.2 requires that the complainant (the judge allegedly in this case) sign his grievance and that the grievance contain a brief statement of the facts upon which the grievance is based.
Does such a letter from Jarasitis exist? Or is there only one from you to him as part of a fishing expedition? (Your trip to Bristol County on the Linnehan case is at the bottom of my suspicion.) Notwithstanding the possibility that this complaint, B2-03-0012, is inspired by you rather than by Judge Jarasitis, I am treating -- for the purpose of this response only -- your letter as if it were written by the judge, and have both scanned it and reproduced it here in 10-point sans serif type. My own remarks in response to yours, I have put in 12-point type.
Important to state here is that the Office of the Bar Counsel is not required to communicate certain grievances, such as facially frivolous ones, to the attorney complained-of by a petitioner. And the Office both routinely ignores those complaints it deems frivolous or spurious and routinely chooses to selectively enforce its rules.
OFFICE OF THE BAR COUNSEL
BOARD OF BAR OVERSEERS OF THE SUPREME JUDICIAL COURT
75 Federal Street
Boston. Massachusetts 02110
Fax: (617) 357-1866
DANIEL C. CRANE
June 13, 2003
PERSONAL AND CONFIDENTIAL
Barbara C. Johnson, Esq.6 Appletree LaneAndover, MA 01840-4102
RE: BBO File No. B2-03-0012 (Bar Counsel)
Dear Ms. Johnson:
Please be advised that bar counsel has initiated the above-captioned grievance based on a report received from the Honorable Alien J. Jarasitis, Associate Justice of the Lawrence District Court, that raises questions of professional misconduct on your part in violation of Supreme Judicial Court Rule 3:07, the Massachusetts Rules of Professional Conduct.
It is the responsibility of the Office of the Bar Counsel to investigate all matters involving alleged misconduct by an attorney.
While no disposition will be recommended or undertaken by bar counsel until the attorney has been afforded an opportunity to respond, failure to respond without good cause may constitute misconduct warranting appropriate discipline or administrative suspension under Supreme Judicial Court Rule 4:01, § 3.It is correct that I was "never appointed or assigned by CPCS or the Bar Advocate Program to represent Mr. Banks as an indigent defendant." I have never asserted that I was. I signed onto the case after receiving a letter from Augustine Banks, who was then unlawfully imprisoned in Middleton House of Correction. I do not recall, but I believe he phoned me collect shortly after I received his letter. I might have phoned the superintendent’s office and got through to Banks that way. I do not have a timeslip to refresh my memory how that went down, for given that I would be defending him on a pro bono basis were I to take the case, I would not need timeslips. At some point, I can check my phonebills and see the dates when he called collect (the only way a prisoner can phone out of the facility).
The conduct in question arose out of your representation of Augustine Banks as a defendant on criminal charges in the Lawrence District Court. We understand that you were never appointed or assigned by CPCS or the Bar Advocate Program to represent Mr. Banks as an indigent defendant.
Judge Jarasitis has informed us, however, that on or about December 3, 2002, you presented certain documents to the clerk's office including an alleged motion for "costs of trial counsel" (fees) in the amount of $15,000, which you stated had been allowed on September 24, 2002.
This, too, is correct. My statement was made in a letter addressed to the generic "Sir/Madame." I wrote:
After the judge allowed my two motions (one for fees, the other for subpoena costs), I did not know to whom I should present my bill. Someone – I do not remember who – in the clerk’s office said to present them to the judge in his lobby. I went to the lobby and handed the letter and my bill to the receptionist/secretary there. On 24 September 2002, the court allowed my motion for fees of $15,000 for the representation of Augustine Banks in the three above-referenced criminal actions.
Please find attached hereto this letter a copy of the endorsed motion.
I would like payment.
We are informed that when those documents were brought to Judge Jarasitis's attention, he instructed his staff to copy your submissions and return the originals to you.
The documents might have been returned to me. I do not have a memory specifically of that fact. I would have to check my file to determine whether that fact is true. The only problem is that my file copy and a so-called original would be identical except for my signature. I do not always sign my file copies, but when I do, I write an "original" signature. If I did sign my file copy of my cover letter and if the judge’s staffer did return to me the document I presented, I would not be able to tell the difference between the two documents . . . because you never sent me a copy of the copy the staffer allegedly made. I would therefore have nothing by which to compare and identify them.
When I print out a document, I print the number of copies I need, so all my copies are originals. I do not have a real photocopier. I have a FAX-copier, which darkens originals and wastes expensive toner, so I rely on it only to copy items sent me by other folks.
According to Judge Jarasitis, he has no memory or record of ever allowing a motion of this kind, but he did allow and endorse, in duplicate, a motion for costs of subpoenas on September 24, 2002.
The judge’s memory that he endorsed duplicate motions is faulty in extremis. He signed two separate and different motions on 24 September 2002.\1/ That what I say is true is demonstrated and proven by Figures 1 and 2 on the following pages. The two motions are absolutely not duplicates of one another.FN1 There were friends of both Banks and mine who were present in court with us on September 24th. I had anticipated judicial resistance to my fees’ motion, and we were all stunned when Jarasitis allowed it without any argument whatsoever after he read it.Judge Jarasitis’ reason for creating this outrageous falsity arose on 15 November 2002, when, after he unscrupulously threw justice into the garbage can, I scolded him, albeit respectfully, for essentially being a Judas to Justice. Retaliation became the ulterior motive for his future agenda.
FIGURE 1. The Motion for Costs of Subpoenas
1 Note the distance of the docket numbers from the words "Docket No."
2 Note (a) that the "A" in "Augustine is a capital printed "A" and (b) that the entire word "Alexander" is crossed out
3 Note (a) that the "A" in "Augustine is a capital printed "A" and (b) that the "r" in "Alexander" is not crossed out
4 Note (a) that the "A" in "Augustine is a capital printed "A" and (b) that the "A" and the "DER" in "ALEXANDER" are not crossed out
5 In the signature, note the "hook" at the
bottom of the capital "B," the heights of the letters, how only the "B" and the "J" touch the line beneath the signature
6 Note that the circle around the word
"ALLOWED" goes through the "N" of "MOTION" and that all but the "D" in "DENIED" is stricken by a dark line
7 Note that the date SEP 24 2002 begins on the line beginning "DATE" and descends diagonally to the line and almost reaches the line below
8 Note that the judges signature stamp does not touch the first three letters "ATT" of the word "ATTEST" and that the letters "tis" of the judge’s surname are beyond the right margin of the bottom line of the stamp
FIGURE 2. The Motion for Costs of Trial Counsel
1 Note that the distance of the docket numbers from the words "Docket No." is much closer than in Figure 1
2Note (a) that in "Augustine," the first letter is written in "cursive"--"a"--and is not a capital printed "A" and (b) that only "lexander" is crossed out with more strokes than in the other motion
3Note (a) that in "Augustine," the first letter is written in "cursive" -- "a" -- and is not a capital printed "A" and (b) that there is only one stroke crossing out "Alexande"
4 Note (a) that in "Augustine," the first letter is written in "cursive" --"a"-- and (b) that only the "A" in "ALEXANDER" is not crossed out
5 In the signature, note that the capital "B" is much longer than in the other motion – almost 6 lines deep versus 4 lines deep -- and that almost all the let-ters of the signature touch the underline
6 Note that the circle around the word "ALLOWED" does not go through the "N" of "MOTION" and all the letters in "DENIED" are stricken out
7 Note that the date SEP 24 2002 remains totally above the line beginning "DATE"
8 Note that the judges signature stamp begins at the "A" of "ATTEST" and that only the final "s" of the judge’s surname is beyond the right margin of the bottom line of the stamp
9 and 10 are, of course, not on the other motion.
Background: Banks, a soft-spoken, intelligent, educated man from Nigeria, had been held imprisoned since the end of March 2002 on high bail. His wife had alleged three times that he violated a restraining order. He had not been convicted, yet he had been held in jail longer than he would have been even if he had been convicted.
One Friday in November 2001, Banks had come home to find his wife with her lover, and was assaulted by her. (She is a tall plus-sized woman and Banks is a featherweight of medium height.). On Monday there was a 209A hearing. While in court to answer his, she sought a 209A order. His was dismissed. Hers was continued. The first alleged violation arose that same day. Banks was arrested while waiting at a neighbor’s apartment for the police to accompany him the next day to get his belongings from the couple’s apartment.
His wife was not even in the apartment. She testified that she had left a few days earlier with her lover and then stayed at a friend’s residence, but she, nevertheless, called the police and said he had violated the order by being in his friend’s residence in a building next door to the building in which the marital apartment was.
The second violation allegedly occurred by his alleged speaking to her in the courthouse after they exited the Lawrence courtroom in which there had been a proceeding related to their divorce.\2/ This case has yet to be tried.FN2 I had requested the security tapes. In responding, the ADA claimed that the security tapes are not held longer than 24 hours, which means that if one does not discover a theft within 24 hours, the thief might not be caught, even though he might have been taped doing the dastardly deed. Think, we the taxpayers are going to have to pay for the salary, benefits, and pension of the dolt who thought up the idea of keeping the tape for only 24 hours!The third alleged violation is said to have occurred on 28 March 2002. Banks was asleep in his landlord’s house when the police arrived to arrest him. On the previous day, the 27th, Banks had filed a motion to intervene in a case DSS had against the wife. DSS was about to take custody of his son. Banks wanted the custody of his son. Her calling the police on a bogus 209A was to thwart his getting custody of the boy. She claimed he was stalking her. He claims he was at work. This case, too, has yet to be tried. (The trial judge – the one who is believed to have some integrity – has informed the ADA that even if Banks is found guilty on the two other charges, the court will not impose a jail sentence, given the amount of time Banks had already been imprisoned before trial. He released Banks on personal recognizance. Banks is now both working and back in school.)
NOTE: On the morning of Tuesday, June 24, 2003, Banks and I went to court. Judge Brennan called the ADA and myself to the sidebar. Within seconds, he declared he would dispose of the cases arising out of the alleged second and third violations by FILING THEM WITHOUT A CHANGE IN PLEA. Given that that meant there were no convictions, Banks agreed. Although technically the cases could be resurrected, he declared also that he had never seen one resurrected. We were out of there within minutes.
Judge Brennan did not want to go near the restraining order issued by Jarasitis while Banks was in jail.
On 8 August 2002, I represented Banks at a probable cause hearing. By then the wife’s lover had disappeared – we believe he was in jail in New Jersey – and she, allegedly with no ability to pay the rent for the huge marital apartment,\3/ had taken refuge in a women’s shelter.FN3 Mrs. Banks had four out-of-wedlock children by four different men. The oldest was in her majority and had a child of her own. The next two oldest had left the home. The fourth was with her, as was her fifth child, the child she had with Banks. She was angry on the 8th that he had married her. In actuality, Mrs. Banks was both collecting child support from each of the fathers and receiving disability payments. Her alleged income was approximately $5000 a month. (Not having been involved in the divorce case, I have not seen the paperwork. I have learned, however, that this past February (2003), Judge Manzi relieved Banks of all past, present, and future obligations of child support.) Banks, of course, has no knowledge of where his son is. The court refuses to reveal Mrs. Banks’ address.
In November 2002, in the eighth month of Banks’ imprisonment, his wife, whom he had neither seen nor communicated with, brought still another complaint for a restraining order. Under the statute, Banks was entitled to proper service, notice, and an opportunity both to present his defense and to cross-examine his accuser within 10 days of the initial issuance of the temporary restraining order.
Service appears to have been effected in jail. When I appeared for the scheduled hearing, I learned that the sheriff’s men had dropped the ball: they had not transported Banks to court for the hearing. And even more egregiously, Judge Jarasitis had already, notwithstanding the sheriff’s men’s goof, issued the fourth restraining order against Banks. Of course, his wife had had no new allegations to support the new order. And Jarasitis had to know that . . . her affidavit being so incredibly facially deficient.
So on that day, 15 November 2002, I insisted on being heard during the session and orally moved the judge to vacate the new order and schedule another hearing and force the sheriff’s men to deliver Banks into court. After all, it was not as if Banks could have gotten to court on his own volition. He was being held in false imprisonment and was therefore not free to get to court on his own. The judge became angry at my persistence and simply damned Justice when he refused to vacate the order and reschedule the hearing. He told me, in essence, "Frankly, my dear, I don’t give a damn," But, unlike Scarlett O’Hara, who had earned the scorn of Rhett (Clark Gable), in Gone with the Wind, Banks had done nothing to provoke Judge Jarasitis into damning him and his civil rights.
Judge Jarasitis had simply forsaken justice and violated, at the very least, Canons 2(A) and 3(A)(1) of the Code of Judicial Conduct, as well as his oath of office.
I was well aware that my confronting the judge about his lapse of good judgment and judicial responsibility put the receipt of payment of my bill in jeopardy. Such a consideration or possibility, however, does not impede my working toward achieving court reform and attitude adjustment of those sitting on the bench. Examples abound proving that those who wimp out when facing unscrupulous or irresponsible jurists fare no better than I. So I persist in upholding my principles and demand for accountability, as provided to the people in Article V of the Declaration of Rights of our Constitution for the Commonwealth of Massachusetts. I do not countenance injustice, for "[I]njustice anywhere is a threat to justice everywhere." Martin Luther King, Jr.We are further informed that Judge Jarasitis scheduled the matter for a hearing at which you appeared on December 17, 2002. During the course of the hearing, Judge Jarasitis raised the issue of whether one of the motions he had endorsed as allowed on September 24 had subsequently been altered and then presented to the clerk's office.
I believe I did appear for a hearing on December 17th. My calendar shows that you and I and others were to be in New Bedford on your motion at 9 in the morning on the 17th and that Banks and I were to be in Lawrence at 2:00 that same day. We understand that you denied this allegation at the hearing.
I have, however, no independent memory of what happened or what was said at the December 17th hearing. In any event, my lack of memory is irrelevant.\4/ Had the accusation that I altered an endorsed motion been made, I certainly would, indeed, have denied it. Such an accusation is 100 percent untrue. There was and is no basis for such an allegation. It is a false allegation. See Figures 1 and 2, supra.FN4Banks has tapes of several hearings. They might include the proceeding on December 17th, but not wanting to break the seals, I have neither listened to his tapes nor read transcripts of them. And because the seals cover the dates of the hearings on the tapes, I cannot be sure which hearing-tapes have been received.
There are also questions about whether you properly disclosed the contents of the motions that you presented and argued at the September 24, 2002 hearing and, regardless of the timing, why you sought payment of counsel fees at all in the circumstances of the case.
I am totally confused by the first part of your sentence, that is, between the words "There" and "hearing." Please rewrite it. I thank you in advance. I shall properly respond as soon as I understand what it is you are trying to say.
As to why I sought payment of counsel fees is an easy statement upon which to comment. When I heard from Banks, I thought he was being held on one charge of violating a 209A order. It turned out that he was being held on three separate charges. They were clearly spurious, given the police reports and the evidence, or lack thereof. Banks had been given a probable cause hearing on 8 August 2002, before Judge Stephen Ostrach. At that hearing Banks’ wife admitted that he had never "touched" her. Her complaint was that he allegedly believed in Voodoo and that his belief in Voodoo caused her to have bruises. She also testified that her sister(s) in Michigan also suffered bruises on their body. In response to my question as to how she concluded that her sister(s)’ bruises were the fault of Banks, she replied that her sister(s) dated friends of Banks in Michigan.
The gender discrimination in the court was obvious. It might also have been heightened because Banks is Black. The only reason, speculatively speaking, Judge Ostrach kept Banks in jail after that hearing was because the wife said, for all intents and purposes, that she would not be able to stay in the women’s shelter were he let out of jail. If that was not the reason, then I can conclude that Judge Ostrach also believes in the power of Voodoo.
On another occasion, Judge Stella almost let Banks out of jail, but at the last moment, the judge succumbed to the assistant district attorney’s baseless argument . . . even after the ADA admitted that he had misrepresented a material fact to the court!
So given the outrageous actions of the judiciary in that court, the cases were going to take much longer than they reasonably should have. The court was irresponsibly and unjustly increasing the cost of my efforts, i.e., the time I would have to spend getting Banks free of his false imprisonment.
Judge Jarasitis also had a habit of talking to the audience in his session about the inadequate amount of money being given to the judiciary for the administration of the courts. When he refused to release Banks, I told him I did not want to hear him complain again about the shortage of money for the courts, given that he had just wasted still another $3000 a month to keep Banks in jail. He corrected me and said it cost $3600 a month to keep Banks in jail.
As I told Judge Roberts during a recent trial in the Probate & Family Court, I love the law, I respect the bench, but I do not respect all those who have been appointed to sit on it. Clearly Judge Jarasitis was one who still had to earn the respect he sought and expected.
Enclosed for your reference are copies of the following materials obtained from the Court:Attorney Weisberg, you included the docket sheets for three actions, two endorsed motions, one with an attached bill for services. I also submitted a cover letter, which you did not include in your package to me. Both motions had been filed in court and I assume did find their way into one or more of the court files. I do recall, however, going into the clerk’s office and trying to get a certified copy of the endorsed motion for fees. The clerk waiting on me refused to let me thumb through the files. He told me that the motion was not in the files. Whether that was true, I do not know. What I do know is that I was not able to get a certified copy of it.
1. the three dockets for the charges against Augustine Banks;
2. the endorsed motion for subpoena costs as appearing in the Court files;
3: the materials you submitted to the Court on December 3, 2002.
We also have copies of the Court tapes recording the hearings on September 24 and December 17, 2002, which you are free to review at this office. I understand that you may havealready obtained your own copies of those tapes.
I know that various tapes were ordered by Banks and by me. I do not know at this moment the dates and do not have the time to go through the file at this moment. See note 2, supra. I have findings of fact to write for another case and not much time to write them. They are due soon, and soon is running out. Answering your complaint is a terrible waste of a precious two days. I cannot take the time to look through what has become a sizeable file.
In any event, I do not put stock in any tape from a court these days. If you will read Drano Series #95 on my website, you will see that I uncovered an incident of tape-altering by court officials. I would not now bother to order a copy of tapes from Lawrence given the animosity currently existing. I would have to have them forensically analyzed before I would trust that they were accurate representa- tions of what occurred in the Lawrence District Court courtrooms. Of the four judges I have appeared before in that court, I believe that only one of them has some integrity. The Banks case was a great eye-opener.
We urge you to review Supreme Judicial Court Rules 3:07 and 4:01 and to examine the enclosed documentation. Under Section 2.6(2) of the Rules of the Board of Bar Overseers, your response, plus any supporting documentation, must be received by this office within 20 days from the date of this notice. Please provide with your response the originals (including any "original copies") of all the materials you submitted to the Lawrence District Court and had returned to you on or about December 3, 2002, including without limitation originals of the documents of which copies are enclosed with this letter.
I shall be filing a motion for an extension of time to supply supporting documents, for I must first determine which documents are necessary. I am confident that Bar Counsel will not be prejudiced by my request for an extension.
Thank you for your attention.Sincerely,
Very truly yours,
Susan Strauss Weisberg
Assistant Bar Counsel
cc: Thomas J. Lynch, Esq.
Barbara C. Johnson
Barbara C. Johnson
cc: Thomas J. Lynch, Esq.
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