#163, Drano Series

Barb's Motion for Jury Trial on Petition for Contempt

and a Declaration of Whether a Finding of
Civil or Criminal Contempt Is Actually Being Sought by Bar Counsel

~~~~~~~~~

People have written me, "What can I do to help you?"
It is unlikely anything will help the inevitable,
however, anything is worth trying. 
The "anything" might be letters to the Court:

Supreme Judicial Court
John Adams Courthouse
One Pemberton Square
Boston , MA 02108

__________________________________________
Supreme Judicial Court
Justices
(click on names and see photos and profiles)
Send letters by snail mail or email of both.
Snail mail address above.
Email addresses below.

Chief Justice Margaret H. Marshall chiefjustice.marshall@sjc.state.ma.us margaret.marshall@sjc.state.ma.us
Justice John M. Greaney john.greaney@sjc.state.ma.us	Justice Roderick L. Ireland roderick.ireland@sjc.state.ma.us
Justice Francis X. Spina francis.spina@sjc.state.ma.us	Justice Judith A. Cowin judith.cowin@sjc.state.ma.us
Justice Martha B. Sosman martha.sosman@sjc.state.ma.us	Justice Robert J. Cordy robert.cordy@sjc.state.ma.us
Keep the letters going to the Court. I was there on October 6th to file my appeal.   One of the clerks said the letter file was a few inches thick. Whether the judges will ever read them is unknown, but they are sure to know that they are there.  I'll inquire as to whether a "reader" has been assigned. Let's also try emails.  The judges' secretaries will certainly let them know how many are coming in.

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

of Suffolk County 

Single-Justice Session No. BD-2006-039

IN RE BARBARA C. JOHNSON

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

JOHNSON’S MOTION FOR JURY TRIAL
ON PETITION FOR CONTEMPT

AND A DECLARATION OF WHETHER A FINDING OF

CIVIL OR CRIMINAL CONTEMPT

IS ACTUALLY BEING SOUGHT BY BAR COUNSEL

Now comes Barbara C. Johnson, Esq., [“Johnson”] and moves for jury trial on the Office of Bar Counsel’s petition for contempt and a declaration of whether a finding of civil or criminal contempt is actually being sought by Bar Counsel.

As grounds, Johnson states :

(1) that “[b]ecause of the marked procedural distinctions between a civil and a criminal contempt proceeding, obviously the character of the proceeding must be established before trial” [Furtado v. Furtado, 380 Mass. 137, 143 (1980)] ,

(2) that because Johnson has not refused to answer any questions or to provide any facts sought by the Judgment of Disbarment, were contempt to be found, the punishment cannot be coercive [Com. v. Raczkowski, 19 Mass.App.Ct. 991 (1985)], and

(3) that because Johnson owes no client any money, she does not hold the key to the cell door.

Where Johnson does not hold that key—whether it be money or answers to questions seeking facts—Bar Counsel and this Court, which have, as described in Johnson‘s Motion to Recuse, a symbiotic relationship, are essentially seeking to charge Johnson with criminal contempt. Without a determination in advance of trial of the length of sentence, if any, sought, Johnson is entitled to a jury trial. Mass.R.Crim.P. 44.

The case at bar is similar to Com. v. Eresian, 389 Mass. 165 (1983), where the defendant-landlord was served with copies of the Worcester Commissioner of Housing Inspection’s motion for civil contempt and a notice to appear in Superior Court to show cause why he should not be adjudged in contempt. The Court held that absent a showing of waiver of his right to trial by jury, Eresian’s criminal contempt conviction was obtained in violation of the procedure provided in Rule 44, which governs nonsummary criminal contempt proceedings. The case was disposed of by reversing the judgment of contempt and setting aside the finding.

Thus, because the OBC’s modus operandi is secrecy and a jury trial would interfere with the way the OBC and the BBO do business, the OBC’s Assistant Bar Counsel, Susan Strauss-Weisberg, wrote that she was seeking a finding of civil contempt.

Further, given that the OBC and the BBO have been “chasing” Johnson for over a half a decade and have had a notice for public consumption for the last 3½ years on their website that discipline against Johnson was pending, the “dynamic duo,” the OBC and the BBO, the entities affiliated with the SJC, have directly caused Johnson to be in a penurious state, making any payment of any fine impossible. Therefore, even a penalty of a fine will lead to further contempt charges for nonpayment of that fine.

Unlike the case of a civil contempt where the ability to pay must be found at the time the contempt order or judgment is entered (Salvesen v. Salvesen, 370 Mass. 608, 611 (1976); Sodones v. Sodones, 366 Mass. 121, 130 (1974)), the judge in a criminal contempt proceeding may make a determination of contempt of court based on an ability to pay at the time of nonpayment, combined with a clear intention to disregard a valid court order.

Furtado, 380 Mass. at 144.

Here Johnson has been proverbially broke for these many years while she has been harrassed by the OBC and the BBO for no purpose except to stifle her political speech, to stifle her First Amendment rights to free speech, in essence, to act as a prior restraint, to preclude her from talking about the need for court reform, the need to abolish both judicial immunity and quasi-judicial immunity, and the need to let the public know about unscrupulous judges, particularly in the Probate & Family courts.

Johnson further contends that there are many other mitigating circumstances, many of which are stated in her Motion to Stay the Judgment of Disbarment, which she incorporates herein in entirety by reference.

If a defendant advances a claim of a mitigating circumstance, the burden remains on the Commonwealth to prove its case beyond a reasonable doubt. See Mullaney v. Wilbur, 421 U.S. 684, 704 (1975). The defendant does not have the burden of proving anything in mitigation. Id. at 702 & 702-703 n.31.

Furtado, 380 Mass. at 144.

Although many—not all, but many— of the elements necessary to bring a criminal charge were pled by Bar Counsel, where this Court is—as spelled out in Johnson’s Motion to Recuse Judge Spina, which motion Johnson incorporates in entirety herein by reference—not a neutral and impartial trier of fact, only a trial by jury will do. Furtado, 380 Mass. at 151 (reversal of conviction required because of the apparent unfairness of proceeding).

Here, of course, as the Court did in Furtado, the judge is playing a dual role—one role as controller and supervisor of Bar Counsel and the other, as judge. Because of that dual role, it is foreseeable that Johnson will not receive a fair trial before a neutral and impartial trier of fact were this Court to hear the trial on its own. See Furtado, at 151, citing Com. v. Howard, 367 Mass. 569, 572 (1975).

WHEREFORE, because there is a possibility of a jail sentence, this Court must allow Johnson a jury trial. The only other alternative is to dismiss the OBC petition. To do otherwise will deprive Johnson of her constitutional rights to due process and equal protection.

Respectfully submitted, Barbara C. Johnson
4 October 2006 Barbara C. Johnson, Esq., Pro Se
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
BBO #549972

CERTIFICATE OF SERVICE

I, Barbara C. Johnson, hereby certify that on 6 October 2006 I served a true and accurate copy of the within pleading to the opposing OBC counsel, 99 High Street, Boston, MA 02110 by first-class mail.

Barbara C. Johnson

4 October 2006 Barbara C. Johnson, Esq., Pro Se