Consolidated Appeals, Pursuant to Supreme Judicial Court Rule 2:21, of the Denials of Relief About Closed Hearings and the Removal of the Children* Drano #41, #47, #48, #49, #58, #59, and #61 are related to this pleading.

COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT  ______________________________________________ SUFFOLK, SS. CASE NO. ______  ______________________________________________     JOHN SMITH  Plaintiff/Appellant v. POCAHONTAS SMITH,  SUFFOLK COUNTY DIVISION OF THE  PROBATE & FAMILY DEPARTMENT OF THE TRIAL COURT  Defendants/Appellees   __________________________________________________   CONSOLIDATED -- TWO SJC RULE 2:21 APPEALS  Appeals from Judgments and Orders of  Suffolk Probate & Family Court,  No. ______________ Appeals Court Single-Justice Session, Nos. 2001-J-0000 and 2001-J-0000  Supreme Judicial Court Single-Justice Session  Nos. 2001-0000 and 2001-0000 __________________________________________________   BRIEF OF JOHN SMITH  PLAINTIFF/APPELLANT __________________________________________________       Barbara C. Johnson 6 Appletree Lane  Andover, MA 01810-4102 978-474-0833  Attorney for JOHN SMITH  Plaintiff/Appellant          This is the back cover   CASE NO. SJC-_______     JOHN SMITH  Plaintiff/Appellant   v.   POCAHONTAS SMITH,  SUFFOLK COUNTY DIVISION OF THE  PROBATE & FAMILY DEPARTMENT OF THE TRIAL COURT Defendants/Appellees   __________________________________________________   CONSOLIDATED -- TWO SJC RULE 2:21 APPEALS  Appeals from Judgments and Orders of  Suffolk Probate & Family Court,  No. ______________ Appeals Court Single-Justice Session, Nos. 2001-J-0000 and 2001-J-0000  Supreme Judicial Court Single-Justice Session  Nos. 2001-0000 and 2001-0000 __________________________________________________ BRIEF OF JOHN SMITH  PLAINTIFF/APPELLANT __________________________________________________   SUFFOLK, SS.      I. WRIT OF CERTIORARI, 2:21 Appeal from No. 2001-0278 (closure) Plaintiff/Appellant John Smith herein seeks a declaration that all proceedings in the Smith divorce action in the Probate & Family Court shall remain open to the public.  While both single justices, Justices Dreben and Spina, in the Appeals Court and the Supreme Judicial Court, respectively, agreed that public access is suggested in the law, both justices failed to declare that the proceedings and hearings in the Smith case in the lower court are to remain open to the public unless the lower court writes findings to support the need for closure. Without that declaration, the lower court can continue to close the court and deprive Smith of public scrutiny.  Of course, the findings would need to be written prior to the closing of the courtroom. Otherwise, the issue would again be both moot before the findings were written and irremediable. Given the perceived wrongs or reversible errors committed by the motion court in this case [seeSJC-28-31, Petition to SJC single-justice, and SJC-61-64, Petition for Interlocutory Relief], public scrutiny should be mandatory if not also desirable. The rationale being that "[p]ublicity prevents abuses of a single judge's power." Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 855 (1980), citing In re Oliver, 333 U.S. 257, 268-270. Those abuses stoke Smith's fear that without a blanket ruling commanding that Judge Gould's courtroom be kept open during the proceedings and hearings in his case, Judge Gould will always find a reason to close it. As stated in Smith's other appellate briefs, "This guaranty, the importance of which cannot be overstated, exists primarily to prevent the courts from becoming instruments of persecution." Id., citing Commonwealth v. Bohmer, 374 Mass. 368 (1978); In re Oliver, 333 U.S. 257, 270 (1948); and Note, Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings, 91 Harv.L.Rev. 1899, 1902 (1978).  Under the public gaze, witnesses, counsel, and the judge are more strongly moved to a strict consciousness of their duty, thus improving the quality and fairness of our judicial system. Globe I, supra.  Com. v. Stetson, 384 Mass. 545, 549-550 (1981), citing In re Oliver, supra and 6 J. Wigmore, Evidence s 1834, at 438 (Chadbourn rev. 1976); 91 Harv.L.Rev. at 1905. "[J]udicial system should be open for public inspection." Stetson, 384 Mass. at 549, citing Cowley v. Pulsifer, 137 Mass. 392, 394 (1884), and again in H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 329 (1987).  Given the judicial irregularities in Judge Gould's courtroom and the past frequency of closing the courtroom in this case, a clear declaration from this high court is appropriate.  Even using her imagination, Smith's counsel does not understand the last sentence of Judge Spina's Memorandum and Judgment, so she cannot constructively comment. Notwithstanding that fact, if we assume that the Smiths get divorced and the case is closed, the time for the regular appellate process would begin to run thereafter. What conceivable relief could Smith then seek from this court regarding all the closed sessions? And for what conceivable reason would he seek appellate relief for the long-since closed courtrooms? It's inconceivable that this Court would reverse any of a lower court's findings on custody or property distribution based solely on the grounds that the proceedings or hearings were closed. The bottom line is that John Smith presently seeks only a declaration of rights, to wit, a declaration that he has a right to have proceedings and hearings in his divorce case be open to the public provided the children's names not be used in public. As Justice Spina acknowledged in his Memorandum and Judgment at page 1:  "[I]n some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases." Gannett Co. v. DePasquale, 443 U.S. 368, 386-387 n. 15 (1979). The Supreme Court has not yet said whether the First Amendment protects public access to civil trials. However, free access to civil trials is well established under the common law. Id. Boston Herald, Inc. v. Superior Court Department of the Trial Court, 421 Mass. 502, 507 n. 7 (1995). II. WRIT OF MANDAMUS, 2:21 Appeal from No. 2001-0277 (removal) Plaintiff/Appellant John Smith herein seeks an order vacating the order allowing the removal of the children to the State of XXXX, where they reside with their mother, the respondent and petitioner's wife, and returning them to Massachusetts into Smith's custody. The facts are iterated on SJC-12 to SJC-14, Smith's Complaint to the SJC single-justice session, which Smith incorporates herein by reference. Within those iterations, the single justice inadvertently failed to notice that Smith had marked up his motions for hearing on 19 March 20011 and then moved on 7 April 2001 to mark them for hearing, in response to Judge Gould's order of 6 April 2001,2 which precluded counsel from marking up motions for hearing.3 1 SJC-7; see also docket sheet SJC-91, Papers #66 and #73, and A25A and A30A.  2 On 6 April 2001, Judge Gould issued an order stating, amongst other items, "(7) It is further ORDERED that any motions already filed by either party that have not yet been heard, other than the motions listed above, shall not be heard at the April 24, 2001 hearing. (8) It is further ORDERED that any motion to be filed by either party after the date of this Order shall be filed directly with the court (Gould J.) and shall be marked for hearing as the court deems appropriate." 3  SJC-89, Paper #42; see also A-25A, letter to clerks, and motion at 30A, which was never entered into the docket sheet.  Hence, the bringing of a petition in the nature of a writ of mandamus to do just that which Judge Spina wrote was its purpose: "to compel a tribunal to perform the duties required of it by law, namely, to exercise its jurisdiction." (Spina, J., July 6, 2001).  The single justice also misapprehended or overlooked the court's reversible errors in allowing the children to be removed to XXXX, to wit, in violation of the Massachusetts Child Custody Jurisdiction Act, Judge Gould allowed the removal of the children to XXXX without Smith's consent, without an evidentiary hearing4 and without any investigation as to the environment to which the children would be taken (while Smith's prior counsel was attorney of record) [testimony of guardian ad litem, A-43]. The evidentiary hearing occurred on 25 August 2000, almost three weeks after removal had been allowed, not before, as Judge Spina misapprehended. 4SJC-12, p. 9 of Smith's 211:3 brief and SJC-47-48, pp. 7-8.  Lastly, the single justice overlooked, whether by mistake or inadvertence, Smith's substantive liberty interest in protecting his children, particularly one of them, who told his father he was sodomized by his maternal grandfather [SJC-4, 15, 23-25 (petition before Spina, J.); SJC-42 (petition before Dreben, J.)].5 5 The child's disclosure of sodomy occurred in February 2001, not a year ago [SJC-4, SJC-42, A19B-19D]. The four scabs resembling fingernail scratches, above the child's anus, as if someone were trying to hold the child still in order to sodomize, were seen on Memorial Day weekend, 6 weeks ago. SJC-4. While the focus of Smith's petition should have been on whether the single justice of the Appeals Court erred, the petition addressed herself to the inquiry the single justice of this court should have made: the underlying order of the judge in the motion court, "to see whether there was an abuse of discretion or error of law when evaluating the competing interests." Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 602 (2000). Given that the motion judge made a clear error of law or abused her discretion, the single justice of this court should have reversed and returned the children to Massachusetts. Id. (cites omitted). "That is the traditional standard governing our review of judgments pursuant to G.L. c. 211, s. 3." Id.  Clearly neither Smith nor the child can be placed in statu quo in the regular course of appeal. To await the years for the regular course of appeal will cause unconscionable, irremediable damage both to Smith's interests in the health, safety, and well-being of his child and to the child's need to be protected from continuing severe sexual abuse. Wife's Misrepresentations to the Single Justice and Lower Court The wife's statements to the lower and higher courts are sheer misrepresenta- tions, or untruths, a product of opposing counsel's willingness to twist the truth and to lie . . . a conclusion which Smith can prove through documentary and testimonial evidence. Unfortunately, the lower court has ignored the proof.  For completeness, Smith corrects below only a small sample of the untruths told by the wife and her counsel in diverse ways in the lower and higher courts.  1. Wife and her counsel have averred that Smith threatened to kill his wife, Pocahontas Smith ["Pocahontas"]. The allegation is false. Had Smith had the opportunity to present his evidence regarding the allegation, Smith would have been able to prove the falsity of the outrageous allegation brought solely for the purpose of gaining an advantage on the custody, child-support, and alimony issues.6 [Page 1 of wife's opposition to a writ of mandamus filed in SJC single justice session.]    6  As agreed-upon by the parties years prior to marriage and the birth of their twin sons, because Pocahontas was intending to become a lawyer and had the potential to earn a far greater income than Smith would be able to earn, Smith would be the primary caregiver of their children. And after Pocahontas graduated cum laude from Harvard Law School and was employed by two prestigious lawfirms . . . Smith was, indeed, and primary caregiver . . . until a bogus 209A charge was brought and he was forced to leave the family residence [while Smith was represented by prior counsel]. To be the primary caregiver, Smith had to give up his "day job" and put himself in a position where he must now become updated in his profession, in which many technological changes have occurred, making him entitled under existing law to child support if he continued to be the primary caregiver after the divorce and to, at the very least, rehabilitative alimony, if he should not get physical custody of the children. (To avoid rehabilitative alimony, Pocahontas took a job for $60,000 rather than a position for $170,000, comparable to that which she held prior to suing for a divorce. The probate judge, ignoring settled law [A33-39], then allowed her to cease alimony altogether.) Further, under G.L. c. 208, s. 28, as custodial parent, Smith would be granted, as the Appeals Court has suggested, the "use and occupancy" of the marital home until the dependent children reach emancipation. Johnson v. Johnson, 425 Mass. 693 (1997) (cites omitted). Therein the above comments, Pocahontas had an ulterior motive to bring the 209A. 2. Contrary to the representations by Pocahontas's counsel and the lower-court judge, there is nothing in the record which shows that Smith ever agreed to pay or share in the cost of the G.A.L.'s fees. There is also no stipulation in the record regarding the appointment of the guardian ad litem.  3. Nothing in the record shows that Smith was abusive to Pocahontas.  4. The G.A.L. did NOT do a "comprehensive investigation" on anything in this case, as asserted on page 2, second paragraph, of Pocahontas's "anti-mandamus" brief. The G.A.L. admitted that prior to recommending to the court that the children should be allowed to be removed to XXXX, she did not conduct any investigation of the people to whom and/or places to which the children would be brought there [SJC-12, A17-18, A43-45, A76-77 (transcript 4/2/01, pp. 34-40]. Pocahontas's father, in whose home Pocahontas and the children went to live, testified that his middle daughter believed he had sexually abused her, but he thought it was a result of the false memory syndrome [SJC-26-27, 46, A19A-19F]. 5. On 28 July 2000, the G.A.L. filed her report [SJC-87, Paper #20]. On 8 August 2000, the court allowed the removal of the children to XXXX [SJC-79, SJC-88, Paper #21]. A day later, on 9 August 2000, the wife filed her motion for the children to be permitted to enroll in school [SJC-77, SJC-88, Paper #22]. On page 2, third paragraph, of her brief, the wife's counsel misrepresented the timeline.  No evidentiary hearing as required by the Massachusetts Child Custody Jurisdiction Act was held.  Not until two weeks later, on 25 August 2000, was an evidentiary hearing held so that Smith's prior counsel could cross-examine the G.A.L. It was a useless hearing, given that the motions to remove the children and to enroll them in school had been allowed two weeks earlier. After the 25 August 2000 hearing, the court simply duplicated its previous order allowing the removal and enrolment [SJC-76, SJC-88, Paper #34].  Pocahontas testified at her deposition that she did not job search in XXXX. 6. The trial date was canceled sua sponte by the court given that the character of the case had changed after Smith's present counsel took over the case. [A252, transcript 3/9/01, p. 10].7 The corresponding misrepresentation in the wife's brief is on page 2, paragraph 4. 7THE COURT: You have filed numerous motions. I absolutely agree with you that they all of those motions have to be heard. And so that the date that I'm scheduled for trial, they are not etched in stone in which this case is now being changed. All have been changed and there is a totally different approach in how you represent Mr. Smith and [Mr.Connelly] represented him and I think I'm not going to say whether that's a good thing or a bad thing but the fact is you are taking a very, very strong active approach. . . . 7. Contrary to the wife's assertion [her counsel's brief on page 3, paragraph 2], Smith's behavior did not become more aggressive in December 2000. He, in fact, had had absolutely no contact with her. When the old 209A order expired on 13 December 2000, Smith had a right to re-enter his own property, which as far as he knew had been empty since summertime, when his wife moved to XXXX. When he went to re-enter, he found the locks had been changed [A138]. He hired a locksmith and entered.  A day later, having learned from her stepbrother8 that Smith had made entry, Pocahontas made the trip from XXXX to Boston to change the locks again and take out a new 209A.    8On 5 December 2000, Smith told his prior counsel to communicate to Pocahontas's counsel that he was planning to move back into the condominium when the 209A expired during the following week. Having no reason to seek an extension of the 209A, Pocahontas, unbeknownst to Smith, by 13 December 2000, made plans to ensconce her stepbrother, Joe Plumber, in the condominium to keep Smith out. Plumber rented a Ryder truck at 5:15 P.M. on 15 December 2000 to move his belongings into Smith's condominium. On 4 January 2000, Pocahontas obtained a second ex parte 209A order on the grounds that she was in fear because Smith had entered the condominium. Later, when explaining how she who was living in XXXX was put in fear by Smith entering the Boston condo, she said that she was in fear for her stepbrother. Significantly, Smith did not learn that Plumber was living in Smith's residential condo until after he made entry.  Now seven months later, the probate judge has still not allowed Smith to testify to his defense to the ex parte 209A order!!! 8. In early 2000, Smith told the G.A.L. the wife's biological family's history but the G.A.L. discounted what Smith told her. Smith had heard both of the wife's boyfriend from the children and of the alleged incestuous behavior of the children's maternal grandfather from his wife's brother-in-law . . . and Smith also had reason to suspect from his own wife's behavior that what he heard might have been true. After the children moved to XXXX, Smith saw physical and behavioral signs of the children which were alarming. When his prior counsel did nothing about it, Smith changed counsel.  9. The G.A.L.'s updated report is all unsubstantiated hearsay and Smith has not had the opportunity to cross-examine significant parts of it. [Compare, A114-115, transcript 4/3/01 at pages 7-10, with page 3, paragraph 4, of Pocahontas's brief.]  10. The children confirmed the wife's conduct with her paramour [A19B]. The discovery master recommended that the children be interviewed by Smith's counsel. The lower-court judge has not acted on the now-three-month-old recommendation.  11. In the tape, the children claimed they had seen mom and her boyfriend having sex, and one twin described how his maternal grandfather sodomized him [A19A-19F]. [Compare with page 4, paragraph 1, of the wife's brief.]  12. The G.A.L. gave her theory. It was fanciful and incredible [A48, excerpt, A114-115, transcript 4/3/01, pages 8-10]. [Compare with page 4, paragraph 3, of the wife's brief.] 13. The substitute judge (Ordonez, J.) allowed the wife and a woman9 who felt scorned and rejected by Smith to address the court under oath, but Smith was not given an opportunity to cross-examine them. It was not an evidentiary hearing which either comported with due process or complied with any known rules of court [transcript of 3/19/01: A282 (page 22 of 3/19/01, swearing in), A287 (page 43 of 3/19/01, the wife begins), A290 (page 53 of 3/19/01)]. [Compare with page 4, paragraph 4, of the wife's brief.] 9  Ms. X. 14. The court has not allowed Smith to present testimony to disprove the wife's case or support his own case. The court has not acted upon almost all of Smith's motions SJC-86-94, docket sheets showing that almost all of Smith's motions have not been heard or acted upon]. [Compare with page 5, paragraph 2, of the wife's brief.] The untruths iterated by wife's counsel are all that the lower and higher courts heard. Reality was bruised by opposing counsel twisting the truth and her willingness to lie. Further wounding of Smith and his children was caused by his not ever being allowed to take the stand to give his story.10 The court, according to the probate judge, has no time to hear him. The children cannot wait. And as their father, neither can Smith. 10 Prior to testifying, Smith was limited to one hour and a half. That get whittled down to 35 minutes. During that 35 minutes, his counsel hurriedly put into evidence 22 exhibits, but she was not given any time to question Smith and have him tell his story [A65, A124, A133, A229]. His wife, by then, had testified for hours. Clearly neither Smith nor the child can be placed in statu quo in the regular course of appeal. To await the years for the regular course of appeal will cause unconscionable, irremediable damage both to Smith's interests -- both natural and constitutional -- in the health, safety, and well-being of his child and to the child's need to be protected from continuing severe sexual abuse. WHEREFORE, Plaintiff requests that this Court declare (1) that Smith has a right to have the public scrutinize in an open courtroom any proceedings or hearings in his divorce case and (2) that the order allowing removal to the State of XXXX be vacated and that Smith's children be returned forthwith to Massachusetts into Smith's custody.                                                         Respectfully submitted,                                                      PLAINTIFF,                                                       By his attorney,                                                      Barbara C. Johnson 19 July 2001                                   Barbara C. Johnson, Esq.                                                       6 Appletree Lane                                                      Andover, MA 01810-4102                                                      978-474-0833