#90,
Drano Series
Barb's Answer
to the Bar Counsel's
Petition for Discipline:
Counts I, II, and IIIA Battle in the War between Barb
and
the Office of Bar Counsel and the Board of Bar Overseers
<>The Board of Bar Overseers is the adjudicatorial arm.
General Counsel of the BBO reports to the Board.
The Office of Bar Counsel is the prosecutorial arm.
Bar Counsel of the BBO reports to the SJC.
However, before a Petition for Discipline is sent out,
the OBC needs the approval of the BBO.
This WAS Barb's First Answer to the Bar
This answer was the one produced by my counsel. He had amended my original answer as shown in ##90A, 90B, and 90C.
After I fired him for secretly meeting with the Assistant Bar COunsel assigned to my case, I submitted my own original drafts as shown in 90A, 90B, and 90C.
.
COMMONWEALTH OF MASSACHUSETTS
BOARD OF BAR OVERSEERS
OF THE SUPREME JUDICIAL COURT______________________
BAR COUNSEL B.B.O. File No. C2-01-0091
Petitioner C2-01-0090
C2-00-0078
v. C2-98-0580BARBARA C. JOHNSON
Respondent
______________________ANSWER OF RESPONDENT BARBARA C. JOHNSON
TO PETITION FOR DISCIPLINERESPONDENT DEMANDS TRIAL BY JURY ON ALL ISSUES SO TRIABLE
COUNT ONE
1. Paragraph One of the Petition states a legal proposition and therefore requires no answer.
2. The Respondent admits the allegations in Paragraph 2.
3. The Respondent admits the allegations in Paragraph 3.
4. The Respondent admits the allegations in Paragraph 4.
5. Respondent specifically denies that she uses her "web site as a vehicle to solicit legal business."The Respondent admits that she uses the web site to provide various legal services including providing answers, after receiving a reasonable fee, to "simple questions," and that she offers to provide "various types of `consulting services' for which she charges hourly rates."
By way of further answer, the Respondent states that she informs website visitors that she provides "`legal representation' pursuant to written fee agreements.'" Respondent also states that her website was and still is intended to be a resource for people who seek assistance have been victimized by the courts and who cannot afford legal representation. The website was only one of several steps Respondent took to effect her intended retirement for many reasons from the practice of law.
6. For her answer, the Respondent repeats and reaffirms her answers to the allegations of paragraphs 1-5 of this Petition.
7. The Respondent admits the allegations in Paragraph 7.
8. Respondent admits so much of Paragraph 8 that alleges ". . . William was born in 1985. From and after 1988, William was the subject of a care and protection proceeding (C & P action) in the Bristol County Juvenile Court (juvenile court)." Respondent is without sufficient knowledge or information to admit or deny the remainder of Paragraph 8.
9. Paragraph Nine of the Petition quotes a Standing order and therefore requires no answer. By way of further answer, Respondent states she does not know the history of the Standing Order. By way of further answer, Respondent states that the Petitioner has the burden of establishing that has not been changed, altered, revoked or amended during all relevant times of this petition.
10. Respondent is without sufficient knowledge or information to admit or deny Paragraph 10.
11. Respondent admits so much of Paragraph 11 that states ". . . respondent has never appeared for Jones in the C & P action and has never been an attorney of record in that action," By way of further answer, Respondent states that the court has held one or more hearings and issued one or more orders affecting the Respondent without notice to her, without providing her an opportunity to be present and despite the fact that she is neither a party or an intervenor to any action in that court.
12. Respondent denies the allegations as stated in Paragraph 12. By way of further answer, Respondent states that Respondent states that William was the subject a proceeding not only for paternity but also for custody. Absent a demand for custody of the child, the Probate and Family Court would not have had exclusive jurisdiction over Jones's action
13. Paragraph Thirteen of the Petition quotes M.G.L. c. 209C and therefore requires no answer. . By way of further answer, Respondent states that the M.G.L.. c. 209C as revised in 1998 applies to both paternity and custody actions under that chapter.
14. Paragraph Fourteen of the Petition requires no answer. By way of further answer, Respondent specifically denies the allegations made by Bar Counsel as to the effect, intent and practice with respect to M.G.L. c. 209C, as amended, after its effective date.
15. Paragraph Fifteen of the Petition requires no answer. By way of further answer, Respondent specifically denies the allegations made by Bar Counsel as to the effect, intent and practice with respect to M.G.L. c. 209C, as amended, after its effective date.
16. Respondent is without sufficient knowledge or information to admit or deny the specific allegations of fact made in Paragraph 16. By way of further answer, Respondent does have sufficient information to form the belief that Jones's visitation rights were terminated in Juvenile Court without due process, including a duly-noticed hearing at which he could confront accusers and/or defend himself. Respondent does have sufficient information to form the belief that Jones was also denied due process under Ch. 119 despite repeated efforts, extending over a decade, to obtain review and re-determination.
17. The Respondent denies the allegations in Paragraph 17. By way of further answer, Respondent has sufficient information to state that the facts are in dispute is because Jane Doe has repeatedly committed perjury in the course of various court matters.
By way of further answer, Respondent states that Bar Counsel has knowingly chosen to allege only those assertions made by Jane Doe to suit Petitioner purpose in pursuing the Respondent despite either knowing such statements were actually false or failing to make diligent and reasonable investigation to determine that such allegations were false.
By way of further answer, Respondent states, has Bar Counsel made diligent inquiry, the contradictory sworn allegations made at various point by Jane Doe are posted and available on the Respondent’s website.
Specifically, the allegations are as follows:
(a) that in 1994, Jane Doe told her own divorce lawyer, Moira Tierney, that William born out of a marital union between herself and Jones: "I assumed complete responsibility for raising [Brown's] children and my child from a previous marriage" [see Par. 6 of Jane's affidavit, filed on 11 July 1994 in the Doe-Brown case in Bristol County Probate & Family Court];
As to the remainder Par. 17, By way of further answer, Respondent that she has learned the following information:(b)that Jane Doe told Brown, her husband, that William was born out of a marital union between herself and Jones [see Doe-Brown divorce file in Bristol County Probate & Family Court];
(c) that in 1988, Jane Doe told Christopher Salt that she had "no live-in boyfriend" [CS 7/1/88 report at 25], causing Salt to write, with the exception of Mr. Fitzgerald, who babysat William, "there appears to be no significant males in [William's] life other than Mr. [Jones]." Id. at 3;
(d) that in her affidavit filed in the Bristol County Probate & Family Court in New Bedford, Jane claimed to have married Brown on "August 28, 1988 after living together for approximately two years" [Jane's affidavit at 1];
(e)that in 1992, Jane Doe told Eli Newberger, a doctor at Children's Hospital, that she had married Robert Brown "in August 1988," [EN 9/8/92 report at 4, Par. 2].
(a) that David Brown was also conceived out of wedlock but born in it,
18. The Respondent denies the allegations as stated in Paragraph 18. By way of further answer, Respondent has sufficient information to form a belief that William has lived with his mother, Jane, and his half-brother David, and has been known not in one community but in seven or eight or more communities as William Brown.(b) that Jane and Robert Brown were separated by 1991, re-united for a short period, and then separated again,
(c) that in 1994, Jane initiated divorce proceedings, which resulted in a judgment nisi in November 2001,
after seven arduous years;(d) that on page 2 of Brown's affidavit filed in the divorce case, he corroborates Jones's assertions: "My wife has moved with her son [William] at least seven or eight times." Neither the Juvenile nor the Probate & Family Courts cared. They never allowed Jones to give or take evidence.
19. The Respondent denies the allegations as stated in Paragraph 19.
20. The Respondent denies the allegations as stated in Paragraph 20. By way furher answer, Respondent states as follows:
(a) Respondent also calls upon Petitioner to name the psychologist and to produce the alleged reports, which Respondent believes are non-existent;
21. Respondent admits that she filed a complaint for modification and an amended complaint for modification for Jones. Respondent specifically denies that these pleadings were filed in a paternity action. Respondent states that they were filed in a paternity and custody action. The Respondent denies the remainder of the allegations as stated in Paragraph 21.(b) If the alleged psychologist is an individual named Jack McCarthy, then Respondent also states that the so-called report(s) are but letters to one or two attorneys and "To Whom It May Concern" of only a few lines in length;
(c) If the alleged psychologist is McCarthy, then Respondent has sufficient information to form the belief that McCarthy did NOT treat William, and did, in fact, see William only one time for a few minutes with his mother Jane;
(d) Respondent denies possessing reports from McCarthy containing privileged, confidential and personal information of a highly sensitive nature about William, David, and Jane. Respondent only has copies of a few short letters containing purposefully false information and bills sent to Jones for alleged services;
(e) Respondent has never known any more about David than his date of birth and information as to whom his father is, and has never inquired of any potential source seeking information about David.
22. The Respondent admits the allegations in Paragraph 22.
23. Respondent admits that she posted on her web site a copy of her amended complaint for modification for Jones, but denies that it was filed in a paternity action. She states that it was filed in a paternity and custody action. The Respondent denies the remainder of the allegations as stated in Paragraph 23. By way of further answer, Respondent specifically denies the allegations made by Bar Counsel as to the effect, intent and practice with respect to M.G.L. c. 209C, as amended, after its effective date.
24. The Respondent denies the allegations as stated in Paragraph 24.
25. The Respondent denies the allegations as stated in Paragraph 25. By way of further answer, Respondent denies that she ever posted on her website a copy of a psychologist's report on any individual.
26. Respondent admits posting materials concerning Jane and her children, including the amended complaint, Jones's affidavit, federal-court pleadings and Doe-Brown divorce pleadings. The Respondent denies all remaining allegations as stated in Paragraph 26.
27. Respondent admits that she posted certain materials on her website. The Respondent denies all remaining allegations as stated in Paragraph 27 and specifically denies that any information she posted was impounded by any court or law.
28. Respondent answers the allegations in Paragraph 28 as follows:
27A. Respondent denies posting materials from an affidavit of Eileen Kern, who reported the sexual abuse allegations against Jones pursuant to M.G. L. c.119, sec 5. Respondent has no knowledge of an affidavit by Kern written at that time.27B. Respondent admits she certain phrases and summarized the so-called social worker for all intents and purposes as follows:
Salt drew no negative conclusion from [Jane] having left Maine with [William] while a court order allowing [Jones] visitation was operative [CS, depo at 13-17]. Instead, he [Christopher Salt] held to his belief that [Jane] had "justification" to disobey the Maine court order [CS, depo at 15, lines 7 and 4] by fleeing and hiding with [William] in Massachusetts [CS depo at 16].To Christopher Salt, [Jane] claimed to have "no live-in boyfriend" [CS 7/1/88 report at 25], but Salt knew this to be untrue, viz., Salt knew that [Jane] and [William] shared an apartment for about three months with Joseph Fitzgerald, who was the tenant of record [id. at 17]. [Jane] and the divorced Fitzgerald, Salt wrote, "dated a few times and have remained good friends" [id.] and with the exception of Mr. Fitzgerald who baby-sat [William] , "there appears to be no significant males in [William's] life other than Mr. [Jones]" [id. at 25].Salt's conclusion that [Jones] had to be the perpetrator of the suspected sexual abuse because there was no male around except [Jones] and because [William] feared men was specious [CS 7/1/88 report at 25; CS depo at 28].Salt further insisted that even though "there was no diagnosis of sexual abuse, the possibility is not to be eliminated. His fear and anxiety about his father had been confirmed[;] he had undergone a traumatic experience and now suffered from post-traumatic stress" [CS depo at 34].By 1991, Salt updated his report -- a "parenting" assessment -- and submitted it to the court in January 1992. [Since Respondent wrote this, she received the docket sheet from the OBC and it is not clear that the report was ever filed in court.] Again Salt recommended that [Jones] be denied visitation with his son [CS 1/5/92 report at 16]. The court accepted Salt's recommendation.The complaints allegedly made by [William] were communicated to Salt by [Jane] and not by [William] . Salt irrationally accepted as truth [Jane] 's assertion that [William] at 6 years of age believed that his therapist (Ferreira) conspired with [Jones] so that [Jones] could take him to his house. And given that his assignment was to investigate the parents, it was grossly negligent to accept without a visit to [Jane] and [William's] home environment [Jane] 's assertion that "her husband Michael is very important to [William] and that Michael treats her son as if he were his own" [CS 1/5/92 report at 2; also 15].Specifically Salt himself lied in that report of 5 January 1992 to Judge Harper: he wrote that Reuben Ferreira had acknowledged that [William's] visiting [Jones] "might well be detrimental." Salt's statement was false because Salt never spoke to Ferreira at that time.Salt's goal, it appears, was to continue to win favor with a judge (now retired) from whom he had received 30 or 40 assignments for reports [CS depo at 8-9]. Of the 60 court investigations that Salt had performed in two-and-a-half years [id. at 8], he found abuse in all but three [id. at 10] and all were done for the Bristol County Juvenile Court "except for one or two" [id. at 8].Respondent further states that the Juvenile Court rule "only imposes a requirement of confidentiality on the [records], and not on witnesses or persons outside the [court]." In re Enforcement of Subpoena, 436 Mass. 784, 797 (2002). "Nothing in the impoundment order prevents the witness from "speak[ing] publicly about the proceedings before the commission and about these proceedings." Id.An order impounding the papers filed with this court in this matter is not a gag order on the witness or a prior restraint on his speech, and he has in fact spoken out publicly concerning this matter on many occasions without repercussion. His desire to speak out, however, does not compel this court to open its files on the matter.In re Enforcement of Subpoena, 436 Mass. 784, 797 (2002). Therefore Respondent's summarizing events is violative of any rule or regulation or statute. Indeed, Respondent was simply exercising her free-speech rights, and it is the Bar Counsel who is attempting to interfere with those rights of the Respondent.27C. Respondent denies this allegation. By way fo further answer, Respondent states that, in 1988, other than Salt, there were no "social workers and other clinicians who conducted court-ordered sexual abuse and parenting assessments."27D. Respondent denies this allegation. By way of further answer, Respondent states that she knows of no report from DSS or from the nonprofit corporation for which the mandatory reporter, Eileen Kern, worked in 1992. Kern claimed in the U.S. District Court case that she had nothing to do with the "Jones" case after 1988.
27E. Respondent denies this allegation. By way of further answer, Respondent states that the so-called evaluation by the team headed by the charlatan of the multibillion dollar sexual-abuse industry, Eli Newberger, was not filed in any court by him. Respondent states that Dr. Newburger specifically stated this fact in the U.S. District Court action against him to assert that there could be no state action. Therefore, Juvenile Court Standing Order No. 1-84 simply does not apply to any such report
(a) Respondent admits posting on her website the "amended complaint for modification, federal pleadings and other materials," but does not recall the dates when such documents were posted.
29. Respondent admits that she never sought or obtained order or relief from Juvenile Court. Respondent also admits that she never sought permission to post anything on her website because any material she posted was already open to the public pursuant to G.L. c. 209C, sec. 13, as amended 31 March 1998.(b) Respondent admits identifying "William as `William Jones,'" a name by which he was NOT known in any Massachusetts community in which he lived with his mother. She also admits identifying "Jane and David by name, and disclos[ing] their home address."
(c)Respondent admits "characteriz[ing] Jane in her postings as a perjurer who had conceived both her children out of wedlock and then falsely accused both fathers of sexual abuse."
(d) Respondent denies that "[t]he postings described, among other things, the history and details of the abuse allegations against Jones."
(e) Because William was never evaluated or treated by any therapist, whether properly credentialed or competent or not, Respondent denies identifying any "therapists who had evaluated or treated William, the particulars of his evaluations and therapy, and the therapists" findings concerning the abuse and ensuing trauma to William."
(f) Respondent denies that she derived all or substantially all that information from the juvenile court reports and other records under impoundment in the juvenile or probate courts and from the reports of William's treating psychologist, on the grounds that it is unclear that any report other than possibly Salt's was filed in juvenile or any other court and that William had NO treating psychologist.
30. Respondent has sufficient knowledge and information to form the belief that "Jane was a candidate for elected town office" until 3 April 2001, the same date that she filed her complaint against Respondent with the Board of Bar Overseers. Respondent is without sufficient knowledge or information to admit or deny the remaining allegations of fact made in Paragraph 30.
31. Respondent admits that she "posted on her web site an array of photographs provided by Jones, including photographs of William between the ages of about one and three." The Respondent denies each and every remaining allegation as stated in Paragraph 31.
32. Respondent admits (a)that she posted photographs of the infant and toddler William, (b)that she announced the candidacy of Jane for public office in Fairhaven, but does not recall how long the announcement remained on her website, and (c)that Jane was an ""out-of-wedlock mom." Respondent believes she might have identified William as William Brown at some point, but that she changed the name when it was called to her attention.
Respondent does not recall in which file the name William Brown appeared or when she changed it. The Respondent denies each and every remaining allegation as stated in Paragraph 32.
33. Respondent admits announcing on her website that Jane lost her bid for public office in Fairhaven. The Respondent denies each and every remaining allegation as stated in Paragraph 33.
34. Respondent admits she received notice of complaints to the OBC by Jane and by Deborah Wolf. Respondent denies that she received notice of a complaint by William. Respondent admits that she submitted responses to the OBC. Respondent admits that she "did not remove any of the material" and also states that she was not requested to remove any material, likely because such a request would have been an unlawful exercise of censorship by the Commonwealth and in violation of Respondent's First Amendment rights.
35. Respondent answers Paragraph 35 as follows:
(a) Jones is not a party to this petition,
Respondent denies the remainder of the allegations in Paragraph 35.(b) Jones has no control over Respondent's website,
(c) Respondent was never a party, an intervenor, or a third party to any action in Juvenile Court,
(d) Respondent was not properly served with a copy of the relevant order; instead, on 1 May 2001, an unscrupulous private attorney sent Respondent by facsimile a copy of the order, which can be seen on Respondent's website at http://www.falseallegations.com/drano34-juvenile-ct-order.htm;
(e) on 7 May 2001, Respondent was served with a pleading which, although entitled "Verified Complaint for Equity Relief," was not legally cognizable as a Complaint and in which neither Jones nor Respondent is named as a defendant,
(f) Respondent has never been inside New Bedford Juvenile Court, has never filed an appearance in a case in New Bedford Juvenile Court, has never been served with a Complaint filed against her in New Bedford Juvenile Court,
(g) the Juvenile Court has no personal jurisdiction over Respondent or subject-matter jurisdiction over what is on her website. No pleadings from the Juvenile Court are or ever have been on the website,
(h) Juvenile Court has no jurisdiction over torts,
(i) on 29 May 2001, Respondent wrote the New Bedford Juvenile Court. Some excerpts follow from the letter, which appears in entirety on her website at http://www.falseallegations.com/drano37-impoundment-Lawton.htm and which is incorporated as if set forth herein by reference.
36. The Respondent denies the allegations as stated in Paragraph 36. By way of further answer, Respondent states that the Juvenile Court had neither personal jurisdiction over Respondent or subject matter jurisdiction over her website. Therefore, Respondent had no legal obligation to follow Judge Mark Lawton's order. Further, Respondent had a moral obligation not to follow the unlawful order. See, the Principles of the Nuremberg Tribunal (1950).
The Nuremberg tribunal held that the defendants could not escape responsibility for these acts by pointing to their domestic law obligations. They had a privilege under international law to violate domestic law in order to prevent the ongoing crimes against humanity that their country was perpetrating through them. Id. We echo this explanation.
37. The Respondent denies the allegations as stated in Paragraph 37. By way of further answer, Respondent states she did not publish any Juvenile Court reports on her website. Respondent admits publishing certain quotes noted above and sets forth herein the specific quotes as follows:
United States v. Maxwell, 254 F.3d 21, (2001) 266 at par. 54, (www.versuslaw.com). Respondent contends that, although Bar Counsel has cited Juvenile Court Standing Order No. 1-84 as the basis for the Petition, Standing Order No. 1-84 repeatedly fostered crimes against humanity because it effectively overrides basic state and federal constitutional canons of due process and equal protection.By way of further answer, Respondent states that she therefore did not, of course, comply with the offending order. She chose the moral high road. She had learned of the unscrupulousness of the Harper court and was obligated to make the lack of any due process whatsoever in the Juvenile Court since 1988 known to the public. The nexus between Jones having lost his son for 15 years and perhaps forever and Harper's unscrupulousness was clear.
But for Standing Order No. 1-84’s cloak of secrecy, coupled with judge-made judicial immunity allowing judges to scoff at the moral obligation to act responsibly and be accountable, Juvenile Court Justice Ronald Harper's arrogance against Jones was enabled and his unscrupulous and malicious acts were hidden from public scrutiny. He was able to perpetuate a crime against humanity in the penumbra of a Kangaroo Court sanctioned not by the people but by some politically appointed committee at some time in the recent past.
In the context of the Jones case, Standing Order No. 1-84 is too broad to accomplish the stated goal of privacy. There are less onerous alternative means, means that are narrowly tailored to serve a compelling State interest, to accomplish the desired privacy. Respondent knows that Jones is not the only parent victimized by unscrupulous and court-sanctioned malicious and corrupt acts hidden by Standing Order No. 1-84.
So Respondent's moral choice was clear. She had to stand on the side of principles, to stand against judicial crimes. She again risked being branded bombastic by a sitting justice because she invoked the lofty Nuremberg Principles. Far from bombast, she faced the the absence of justice in our courts, particularly in domestic issues; and she had to act in the moment.
Justice Harper's choice was also clear. He had a moral choice [See Principle IV of the Nuremberg Tribunal]: to follow due process or do the reprehensible act of denying any indicia of due process, such as a hearing to Jones, and keep the fact cloaked in the darkness defined by the Standing Order. Like Harper, Justice Lawton and the Office of Bar Counsel have had a moral choice: to apply the Standing Order or to allow disclosure of the unscrupulous acts of the Harper Court and make the judiciary take responsibility for the unconscionable conduct of the Juvenile Court in the Jones case.
If the Nuremberg Principles, and particularly Principle IV, address crimes against humanity and apply to member states of the United Nations (as Secretary of State Colin Powell has stated on Meet the Press (February 9, 2003) such principles govern the body politic in Iraq), why should those principles not apply also to the Commonwealth of Massachusetts?
Certainly the qualified doctrine of judicial independence must defer when faced with a crime against humanity.
(a) "justification" [CS, depo at 15, lines 7 and 4]
Respondent submits that no reasonable person could find these words and phrases, to have "embarrassed" or "burdened" Jane or William as alleged in Paragraph 36.(b) "no live-in boyfriend" [CS 7/1/88 report at 25],
(c) "dated a few times and have remained good friends" [CS 7/1/88 report at 17],
(d) "there appears to be no significant males in [William's] life other than Mr. [Jones]" [id. at 25].
(e) "there was no diagnosis of sexual abuse, the possibility is not to be eliminated. His fear and anxiety about his father had been confirmed[;] he had undergone a traumatic experience and now suffered from post-traumatic stress"[CS depo at 34].
(f) "parenting"
(g) "her husband Michael is very important to [William] and that Michael treats her son as if he were his own" [CS 1/5/92 report at 2; also 15].
(h) "might well be detrimental" [CS 1/5/92 report]
(i) "except for one or two" [CS depo at 8].
By way of further answer, Respondent states that any embarrassment suffered by Jane arose from Respondent's published opinion, after reviewing all the pleadings including those written by Jane herself, that Jane is both manipulative and a liar. Respondent’s opinions, expressed in good faith and without malice, were truthful statements of Respondent’s view as to how Jane’s perjury had contaminated the judicial process and how corruption had denied justice in the Jones case.
Respondent further states that she was unaware of Standing Order I-84 prior to receiving a facsimile from Attorney Deborah Wolf informing her of Judge Lawton's ex parte order. Respondent admits that she was nonetheless charged with knowledge of the rule even before that time. By way of further answer, however, Respondent submits that she has at all times acted in good faith and in accordance with obligations as advocate and officer of the court.
38. The Respondent denies the allegations as stated in Paragraph 38. By way of further answer, Respondent statesthe allegations in Paragraph 38 are overly broad and vague and Respondent is unable to respond.
39. The Respondent denies the allegations as stated in Paragraph 39. By way of further answer, Respondent statesthat she has never received any notice for the Office of Bar Counsel. Respondent admits she has, had oral communication regarding the "Jones" matter with Assistant Bar Counsel Susan Strauss Weisberg ["Weisberg"].
By way of further answer, Respondent statesthat Weisberg often told Respondent that the investigation would be over soon. When Respondent asked whether a petition for discipline would be issued, Weisberg on several occasions stated, to the effect, " I did NOT say that charges would issue."
Respondent denies that she received notice directly or indirectly from Bar Counsel, as alleged in the Petition, "that formal disciplinary proceedings would shortly be instituted against her and that the disciplinary charges would involve, among others, the Jones matter."
By way of further answer, Respondent statesthat Weisberg's tone and manner became increasingly hostile after Respondent's positions against judicial immunity and for court reform became publicly known during Respondent's recent gubernatorial campaign. After the campaign, Weisberg dealt with
Respondent in a fashion that suggested she had decided to file a petition for discipline despite not having completed her protracted investigation.
As to the postings referred to paragraph 39, by way of further answer, Respondent states the allegations in Paragraph 39 are overly broad and vague and Respondent is unable to respond.
40. Respondent admits that "[o]n or about December 19, 2002, the respondent posted on her web site her answers to the requests for investigation filed by Jane and Wolf, with William's name only redacted." The Respondent denies the allegations as stated in Paragraph 40.
41. Respondent admits that, except for removing the announcement of Jane Doe's loss of the election after such information had long been in the public domain, she has not removed any other material relating to John Jones, Jane Doe, William Jones, Robert Brown, and Christopher Salt.
42. The Respondent denies the allegations as stated in Paragraph 42.
43. The Respondent denies the allegations as stated in Paragraph 43.
44. The Respondent denies the allegations as stated in Paragraph 44.
COUNT TWO 45. The Respondent realleges and incorporates by reference her answers to Paragraphs 2 through 44 as if fully restated herein.
46. Respondent admits that for a considerable period, including October through December 1999, she provided visitors to her website with information concerning her reasonable and usual fees for certain services. By way of further answer, respondent has no present memory of her regular and usual charges for legal services for the period October through December , 1999.
47. Respondent denies the allegations as set forth in Paragraph 47.
By way of further answer, Respondent denies that she does not tell visitors to the website or "prospective clients of charges for telephone calls with them or for reading, answering or writing e-mail or other correspondence." By way of further answer, Respondent states that this allegation is frivolous, without factual basis and demonstrates Bar Counsel’s ulterior motive in filing the instant petition.
By way of further answer, Respondent has in the past posted and continues to post considerable information on her website regarding fees for "non-clients" as well as "prospective clients." For instance, a pricing structure appears at the following links on her website:
Further, set forth below are examples of the information and disclosures (i) Fee-based Information Without Legal Representation, (including fees for answers to questions by email);
http://www.falseallegations.com/pricing.htm (Simple Questions);(ii) Fee-based Consulting Services – (This is NOT legal representation)
http://www.falseallegations.com/pricing.htm (Consulting services)(iii) Fee-based Legal Services
http://www.falseallegations.com/pricing.htm (Legal Representation)
available to website visitors:http://www.falseallegations.com/agr-hour.htm
Last updated Sunday, 08-Oct-2000 02:12:50 EDT.
10. It is understood and agreed that the hourly time charge for legal services includes, but is not limited to, the following: Court appearances (including travel time to and from Court); conferences; telephone calls; correspondence; legal research and writing; depositions; drafting and filing legal documents; reading and reviewing of file materials and preparation for any Court hearings and trial. Telephone calls and correspondence shall be billed at a minimum rate of one-quarter of one hour.
http://www.falseallegations.com/agr-hr-2.htmhttp://www.falseallegations.com/agr-cont.htm
Last updated Sunday, 08-Oct-2000 02:12:46 EDT.9. In any event, the Client is liable for all reasonable expenses and disbursements of the Firm and shall reimburse the Firm for such amounts.
http://www.falseallegations.com/agr-cnt2.htm9. In any event, the Client is liable for all reasonable expenses and disbursements of the Firm and shall reimburse the Firm for such amounts.
http://www.falseallegations.com/agr-cnt3.htm8. In any event, the Client is liable for all reasonable expenses and disbursements of the Firm and shall reimburse the Firm for such amounts.
http://www.falseallegations.com/disclaim.htm Respondent submits that Bar Counsel has failed to conduct even a rudimentary investigation before making the allegations in this Petition regarding Respondnet’s billing practices. The information above has been and continues to be available without limitation on her website.48. Respondent denies the allegations set forth in Paragraph 48.
By way of further answer Respondent states that Richard Parker, a retired school teacher of Japanese extraction, was charged in four indictments for attacking his daughter "Sarah" in the shower and for burning her while in a car with a cigarette, as well as raping her twice. He and his family prefer NOT to call Sarah mentally retarded. They prefer to say she was "mentally challenged" from "a series of massive strokes which left her with partial paralysis and serious learning disorders and a serious lack of language skills." During and prior to October 1999, Sarah was living in a residential placement under the supervision of the Massachusetts Department of Mental Retardation (DMR). The DMR had initiated a protective services action for Sarah on account of the allegations against Richard. Richard and Mary Parker, Richard's wife and Sarah's mother, were then barred from all contact with Sarah by a restraining order entered in the protective services action.
49. Respondent denies the allegations of Paragraph 49.
By way of further answer Respondent states that the Parkers' troubles began in 1992, seven years earlier than Bar Counsel avers. Just weeks after Sarah left the Parkers' home to live in Specialized Home Care, "complaints" were made and parental access to Sarah was restricted. These matters were not resolved until mid 1994. The events of 1999 and the history of leading to those events are far more complicated and involved than Bar Counsel’s allegations.
By way of further answer, Respondent states that the she has been threatened by Assistant Bar Counsel not to reveal the history leading up to the events alleged by Bar Counsel on the grounds of confidentiality and privacy. Respondent states and avers, however, that the factual predicate for Bar Counsel’s allegations against her are based on a selective choice of facts and time period designed solely to diminish the apparent value of the Respondent's services.
50. Respondent has insufficient knowledge and information to admit or deny paragraph 50.
By way of further answer, Respondent states that at all relevant times, Richard was represented by Attorney Richard Simons on the criminal charges against him.
51. Respondent has insufficient knowledge and information to admit or deny paragraph 51.
At all relevant times, Richard and Mary were represented by Attorney Simons and Attorney Karen Schultz Breda in connection with the adult protective services action. Mary wrote many emails to Respondent about Attorney Breda's representation. Attorney Breda acted as both a courier of messages between various persons and as a supervisor for visitation purposes.
52. Respondent has insufficient knowledge and information to admit or deny paragraph 52.
By way of further answer, the Respondent states that the Parkers denied any misconduct toward Sarah. They suspected that Sarah might have been sexually abused by someone else at her residential placement.
53. Respondent has insufficient knowledge and information to admit or deny paragraph 53.
54. Respondent denies the allegations of Paragraph 54.
By way of further answer, the Respondent admits that "Mary made her initial contact with the respondent by e-mail." Respondent also admits that almost "all her communications with the respondent were by e-mail correspondence." Mary and her husband phoned Respondent on various occasions. Respondent denies that she "encouraged this exchange of e-mail communications." Mary compulsively wrote Respondent about every communication she had with her family. For example, Mary compulsively wrote Respondent about her four daughters, her niece Karen and other lawyers.
These various email communications are set forth below. So as to separate their text from the Respondent’s answer, the emails are placed in text boxes.
THE BACKGROUND 10/31/99 MARY : Please we need help. We are in a fight for our life and for the survival of our family. This is but a brief history of what is happening.
At the age of 15 months our youngest daughter had a series of massive strokes which left her with partial paralysis and serious learning disorders and a serious lack of language skills. For 25 years she lived with us and her sisters in a very close knit loving family. She went to school, to camp(same camp for 15 years), to workshop and there was never any complaint or question, or even a hint that something terrible might be going on.
As her sisters left, she too wanted to move on. As she will always be in need of a "guardian angel" we went to the state for help.
In May 1992, she left our home to live in Specialized Home Care. At the request of the state we limited our visits and contacts for the "adjustment" period. 6 weeks later the first complaint was filed to DPPC. It was never properly investigated and we did not know what the charges were until 10 months later. But we were restricted in our visits. At that time the report from DPPC was that the allegations were not substantiated and the case was closed.
After 2 years she was placed in another home.
From there things began going down hill. We were not advised of many things going on with our daughter and when we questioned we were investigated again. A proper investigation was done and we were cleared as we had had no contact with her at the time of the alleged incident. And now this. On March 2, 1999 we met with the social worker and case coordinator about concerns we had about the treatment and condition of our daughter. 8 days later a complaint was made to DPPC accusing sexual and physical abuse. We knew nothing until April 14, 1999 and on April 16, 1999 we were served with a restraining order. A guardian et litem was appointed and now he has been appointed temporary guardian. Not only her parents but all members of the family. Her sisters have seen her twice. The first meeting in July was disastrous, she is so over medicated at this point it is a threat to her health.
Her father has been indited and arraigned on 4 counts of rape and abuse. After scouring your wonderful site this horror story is just getting worse. Everything that could be done wrong has been. We have not seen our daughter since Feb 16, 1999 and chances are slim to none that we will get to her in the near future and perhaps never. After talking with our attorneys we feel that we have already been convicted and yet at no time has anyone in the last 7 years taken a family history or even discussed this with us. Our daughter remains in the same house where she has been. If in fact, she has been sexually abused then she should be in protective custody from all who have had contact with her and not just her family. There are many reasons to believe her current placement may be an abusive situation. This comes from DPPC's Behavior of Caregiver/Abuser. Our rights, the family's rights, our daughters rights have all been violated. We just do not know where to go from here.
We have spent hours and hours going over all the reports from the Grand Jury and finding errors, incorrect testimony and in some cases outright lies. We have proof to refute what has been said but no one wants to listen. We are just told that our daughter said..... We know she did not because she does not have the physical ability to speak as they claim. Due to her brainjury she is very easily influenced and she quite frequently says "yes" when she means "no" and vice versa. She is and has been continually influenced by her caregiver and the state employees who work with her.
The emotional stress on everyone in the family is all most unbearable. We are a strong family and we will survive but we will also pay a price. I know that one of our other girls contacted you earlier and that you tried to respond. She is a full time teacher, the mother of 2 & 4 year sons and another baby due in a month and just has not had time to do anything. How do we fight this nightmare? How do we get our daughter out of this situation? Thank you for your time and for listening.
55. Respondent admits that Mary informed her about the facts set forth in Paragraph 55.
11/6/ 99
Dear Mrs Johnson,
I've just finished reading all the info my mother (dsano)and you exchanged and i'm a litle confussed You refered to both cases What are the two cases i was under the impression that there was only a criminal case against my father or were you refering to the civil action my sister amber is supposed to put into action when she gets back from vacation . I am Sarah's other Half , since she first came home (before the Strokes) we were together she had to do everything i did. with less than two years apart we were very close.when she came home the second time we became closer Sarah and I became "we" we did everything together from taking naps to climbing trees,(even with one arm not much stopped her) we did it all the only time she and i were apart was when she went to camp and when we went to school other wise we were together . I still say we because she is a part of me .. we talk with out the need for words before she moved into elaine's house she would tell me everything when you read what is said some is true Sarah does over drammatizes her injuries which is why i don't by the bite marks She was with me from friday morning at 11:00 when she got off the plane . That was an experence I'llnot soon forget I was a nervous wreck waiting for her plane to land . yet when she got off the airline attendents and the passangers all knew who i was because that was all she talked about "my Sister Sam" if she had been bitten to the point of bruseing and scabs she woould have let the whole world know threat or no threat ..
Because Sarah dosenot comprohend cause and effect so if i were to tell her you can't tell or they will Kill me she would tell but she would say SSSShhhhuuu Kill me . with her fingure over her lips to b Quite. Another Interesting thing is that in the interview with the foresnic Nurse Sarah sayes that she calls for help ... and my mother dials 911 ...well a litle family history is in order we are a fun loving group and yes some would say a litle weird but every action we did taught Sarah a vitle skill such as 911 we used to tese and tickle and run around and play there comming to take me away or some such thing usually mom would be the one we were getting away from but the point being that Sarah thought it was ffun because she got to pick up the phone and go 'Help help help police" in a high squeaky voice . she now adds a hand gesture to that and she does it in jest she did it when playing with my nefews just the other day she has been told that if ANYONE ever did anything to her she was to yell for help and we would call 911 .. which leeds me to my last point is that Sarah can not or dosen't do it very well and that is Past Present and Future They asked her if this Happened Before or after Elaines If i were Sarah i would not know that After ment Durning the time I'm at Elaines Or dose it mean After (when i Move From Elaines) My Guess is that she is Refuring to After she moves from Elaines
Because that is how Sarah works time segments don't work I've told her that i would visit her in two weeks only to get a call in one because Sarah is hestaracal because i did not pick her up she has refused to get on the van because she swears i'm picking her up .. My sister is a very stubborn women when she throws a hissy fit i've learned not to be in stricking distance ... she fighhts dirty and if any one tried to bite her breast you can bet that they did not get away with out damage of there own...so if i can answer or provied any info I'm the family expert on how she works ... She is not working right now there is stress in her voice and an anxious look in her eyes ... like a frighten rabbit .
I want her out of that House and away from that women . She has always corrected me when Sarah and i are talking we always say thing like your weird or strange and elaine corrects me and tells Sarah she is normal ... I'm Scared that Sarah won't make it out in one peice she has already back slided to a point of dependency on other people (the person in charge) that is not Sarah this is a women that rode her bike across a major intersection through down town and out past the town nursing home because she wanted to go swimming and there was no one to go with her .. I don't buy any of it ... and wish to help.. now i'll leave you to do your work. I wish you could have meet Sarah when she was herself.. she is a shadow that is fading and I don't know what to do with out Her.
THANKS AGAIN FOR ALL YUR HELP
Sarah' s Sister S.By way of further answer, Respondent states that Mary also informed her about many other equally important facts that are not stated in the Petition.
56. Respondent admits that Mary informed her about the facts set froth in Paragraph 56.
By way of further answer, Respondent states that Mary also informed her about many other important facts that are not stated in the Petition.
57. Respondent admits that she "advised Mary that she had to review all available documents from the criminal and protective services cases in order to determine whether she could assist the Parkers."
By way of further answer, Respondent denies that she "told Mary in writing that her fee would be $1.00 per page for this service." Respondent did, however, receive a phone call from Mary on 1 November 1999, as noted in her accounting to Mary. By way of further answer, the Respondent states she has no present memory of the phone conversation. By way of further answer, the Respondent states that her usual practice, however, was to tell a person such as Mary to consult the "pricing.htm" page on Respondent’s website.
58. Respondent admits that she received a check dated 11/4/99 and in the amount of $350. Respondent has no memory of counting the pages of the documents Mary sent, but Mary wrote in her complaint to the Bar that Respondent reviewed "about 500 pages of materials and responding to emails over a 3 week period."
59. Respondent admits that she "asked for and received additional information from Mary, answered questions posed by Mary, and provided advice and recommendations to Mary about the criminal and protective services proceedings."
Respondent denies that she "did not tell Mary during this period that there were or would be any additional charge for those services." Mary acknowledged having read and signed the fee agreement. All those services are mentioned in the agreement as well as on Respondent's pricing.htm page.
60. Respondent admits the allegations of Paragraph 60.
61. Respondent admits the allegations of Paragraph 61.
62. Respondent admits the allegations of Paragraph 62.
63. Respondent admits the allegations of Paragraph 63.
64. Respondent admits the allegations of Paragraph 64.
65. Respondent admits the allegations of Paragraph 65.
66. Respondent admits that she "and the Parkers never reached an agreement regarding the nature [and] scope" of further services.
By way of further answer, Respondent states that there was never a question as to whether she ever ". . . discussed with the Parkers what fees, if any, would be due for further services after that date and prior to the execution of the written fee agreement." The Parkers had the attorney-client fee agreement, which they had signed, and had read the pricing.htm page. Respondent's intentions to charge for services rendered could not have been clearer. The Parkers were not illiterate. Both were retired school teachers and were running their own retail business. Mary knew how to ask questions and was not shy. Had she or her husband or her three daughters who were not mentally challenged had any doubts about Respondent's fee structure, it is reasonable to assume they would have asked for clarification.
67. Respondent denies the allegations of Paragraph 67. By way of further answer, Respondent states that she did keep timeslips and, if she had no time slips for a task, she did not charge for the task.
68. Respondent admits that "[f]rom about November 13 through November 30, 1999, the respondent and Mary continued to exchange e-mail communications." Respondent also admits that "[i]n those communications, the respondent replied to questions and discussed her possible role in the cases in relation to the Parkers' existing attorneys." Respondent admits that "[d]uring that period, Mary advised the respondent that Simons was questioning the respondent's recommendations and that they were considering whether to engage other defense counsel."
Respondent admits, with one correction, that "[t]he respondent spoke to Simons once by telephone and made calls to other defense attorneys regarding Richard's case." That correction is that Respondent contacted the other attorneys to determine their availability to represent Richard Parker and their interest in representing him.
Respondent admits that "[she] provided Mary with additional explications of her recommendations and copies of cases in purported justification of her recommendations.
Respondent denies that "[she] did not tell Mary that she was or would be charging for those services."
Respondent denies that "Mary did not understand that the respondent would be charging for those services prior to execution of the written fee agreement. To the contrary, Mary absolutely and clearly knew the respondent would be charging for those services prior to execution of the written fee agreement.
69. Respondent admits that "[d]uring November 1999, the Parkers scheduled a meeting with the respondent for December 9, 1999."
Respondent has no present memory as to whether she orally informed Mary that "she was or would be charging the Parkers for clearing or arranging her schedule to accommodate this meeting," Respondent submits that the Parkers were fully aware that Respondent was not working with or for them pro bono.
70. Respondent admits that "[o]n or about November 22, 1999, the respondent received a $10,000 check representing the Parkers' retainer payment." Respondent admits that "[she]did not place or maintain those funds in a trust account. "
Respondent denies that "[she]then knew that those funds represented, at least in part, an advance payment for services yet to be rendered to the Parkers."
By way of further answer, Respondent states that, at the time she received the payment characterized as a "retainer," she believed in good faith that she had already proved services with a fair and reasonable value, based upon the rates already disclosed to the Parkers, that were substantially in excess of the total amount payment received.
As such, Respondent had earned the entire amount of the retainer and was justified in considering the funds to be earned income and immediately depositing them to her personal checking account. By way of further answer, Respondent states that, even if she had first deposited the funds in a trust account, she would then have immediately withdrawn the funds as payment for fees already earned.
71. Respondent admits that "[o]n or about November 24, 1999, the respondent deposited the $10,000 retainer check to a non-trust, personal account in her name. " Respondent also admits that "[t]he respondent used that personal account for the deposit and disbursement of her own business or personal funds.’
Respondent denies that "[she] commingled at least a portion of the Parkers' funds with her own funds in her personal account."
By way of further answer, Respondent states that, at the time she received the payment characterized as a "retainer," she believed in good faith that she had already proved services with a fair and reasonable value, based upon the rates already disclosed to the Parkers, that were substantially in excess of the total amount payment received.
As such, Respondent had earned the entire amount of the retainer and was justified in considering the funds to be earned income and immediately depositing them to her personal checking account.
By way of further answer, Respondent states that, even if she had first deposited the funds in a trust account, she would then have immediately withdrawn the funds as payment for fees already earned.
By way of further answer, Respondent states that, after further consideration and as a personal accommodation and courtesy to the Parkers, she deeply discounted the fee she actually charged. In particular
Respondent states that she knew the they were facing considerable fees for Richard's criminal defense. As such, the total fee she ultimately charged was less than $10,000. Immediately upon making the decision to discount her bill so deeply, Respondent then sent the Parkers a refund check in the amount of $3,174.50.72. Respondent admits the allegations of Paragraph 72
By way of further answer, Respondent states that at that point Respondent had earned the entire amount of the retainer and was justified in considering the funds to be earned income and immediately depositing them to her personal checking account.
By way of further answer, Respondent states that a daily or weekly accounting is not required and was not promised to the Parkers. Respondent deposited into her personal account funds that she had fairly and rightfully earned. Her later good faith decision to provide a refund to the "Parkers" cannot at this late date be held against her.
73. Respondent admits the allegations of Paragraph 73.
By way of further answer, Respondent states she advised the Parkers that she did not sign the Fee Agreement because it was never clear as to which cases the Parkers wanted her handle or what tasks they wanted her to do beyond the consulting she was doing at the time.
74. Respondent has insufficient knowledge and information to admit or deny paragraph 74.
By way of further answer, Respondent states that the Parkers vacillated. One day Simons was IN, the next day "OUT." Respondent does not know if Simons was on the criminal case until the end.
"Mary" had sought Respondent's advice regarding her and her husband's interaction with Simons. Set forth below in text boses are the various email exchanges between Mary and the Respondent concerning Attorney Simmons
MARY: Just a quick note to let you know we have a 2PM meeting with Rich Simons to discuss stratagey. Any suggestions you might have to offer would be appreciated.
RESPONDENT: Where are interviews by other folks EW contacted? Did Simons get them?MARY: Will find out Monday.
RESPONDENT: (6) They didn't bring support person in with Sarah the second time because she "constrains" Sarah. That IS weird. MARY: I think Jennifer(the support person) had her concerns that Sarah had been prompted by EW and JK didn't really believe the whole thing. I think JK knows Sarah better than EW. We have asked Simons to get all JK reports as she has seen Sarah once a week from the beginning.
RESPONDENT: Withholding evidence, such as exculpatory dr's report, is a NO NO.
MARY: We asked Simons to get that and the report from 1993
RESPONDENT: (8) Production of certain documents is easier in certain instances in the criminal case than in the probate case. [[[By the way, I didn't see copies of any motions Simons may have filed?]]] MARY: Simons has not given us copies of motions filed. We need to make sure on Monday that he has filed all necessary motions.
RESPONDENT TO ONE OF THE SISTERS: One issue which I forgot to mention in the other email is the likelihood that the two indecent A&B's should be dismissed on the basis that the alleged crimes (the shower door incident) took place around June 1984, when Sarah was 15 years old, more than 6 years prior to the indictment on 19 August 1999. The statute of limitations on c. 235 sec. 13F is SIX years. Attorney Simons should have moved for dismissal . . . provided [your parents] had told him when the shower incident took place. Proof of that would be the hospital records showing that Sarah was brought in for stitches. RESPONDENT, LATER, TO THE PARKERS: Be sure to tell him [Simons] to file a motion to dismiss the two A&B counts on the ground that the statutory limitation -- 6 years -- has passed. In factual support of the motion, he should attach (1) a copy of the medical records from the hospital to which Sarah was brought in 1984, (2) an affidavit from the woman who drove you and Sarah to the hospital in 1984, (3) an affidavit from [Sister] describing how it happened (see the papers from the 1993 incident), and (4) an affidavit from you stating you accompanied Sarah to the hospital. The statute is a legal issue and with such factual proof as the hospital record from 1984, the judge may make that decision without a jury.
STILL LATER TO PARKERS: Well, he'll [Simons will] be surprised about the motion to dismiss . . . if you never told him that the shower event occurred in 1984. With those four attachments I suggested, the DA would be hard-pressed to say there were TWO events in the shower.
MARY: I do not believe we told you but our 1 and only shower is a 34" square stall shower. If someone is in the shower then no one can open the door or get it unless both very skinny and Veryyyyyyy friendly. We even took a couple poloriods for Rich [Simons].
MARY: I am also sending a copy of a letter we received from Rich today regarding Tim Carlson's bill. He is recommending we pay. We agree with you we shouldn't pay. If we had had a choice as to who the temporary guardian was that would be a different story. But we had no choice. As a matter of fact back in march we had, as a family, decided that [Sister] should be Sarah's's guardian and we never got to put the wheels in motion. In July when Tim was appointed we had another person who was overqualified and who has known Sarah for 15 years. The judge wouldn't even listen.
The gal we had in mind and who volunteered to do it is an Elaine Kessler. She has her master's in Social service and has 10 years experience in the field. Further more her husband Eric is a rape counselor at Bridgewater State. We would gladly pay them.
We are spending the night organizing thoughts and questions for our meeting with Rich on Monday.
RESPONDENT: The operative word in Simons’ letter to you is "discretion" . . . the court has discretion. The court need not saddle you with the fee. It may if it wants to, it needs not do so. Given your incredible legal obligations now, the court should not further burden you with something which is not mandatory.
Tell Simons to tell Carlson that you cannot afford to pay given that you need money to defend [Richard] against false charges and that had DPPC/DMR properly investigated the situation, [Richard] would not be in the defendant's position, Sarah would not be isolated from her family, and you and [Richard] would not have the need to fight for both [Richard] and Sarah's lives. And those fights will be costly.
If Carlson seeks the court to compel you to pay, Simons should put into your opposition to Carlson's motion to compel the reasons I've just set out.
RESPONDENT STILL LATER TO MARY (after Mary wrote saying that she thought payment to the GAL was a "done deal"): Nope, not a done deal. I've attached for you the case to which he [Simons] refers. It doesn't say what he is saying. Also he cited chapter 215 section 3. Section 3 simply says that the probate court has the power to appoint a guardian. Does not mention costs. I think section 56A of that chapter (chap 215) applies. It says that probate court can appoint GAL to "INVESTIGATE the fdacts of any proceeding pending in said court relating to or involving questions as to the care, custody, or maintenance of minor children [[[you can include incapacitated in that ]]]] . . . . The compensation shall be fixed by the court and SHALL be paid BY THE COURT. . . ." In fact, there are a few nice little cases which say we can cross-examine the GAL who conducted the investigation and filed the report, as well as "call" anyone he interviewed to testify. With that, we can also depose!. [See Carlson's his memorandum.] He also was present when Sarah was interviewed by McCarthy, etc.
"SHALL" is an important word in a statute. That means the court MUST pay and CANNOT put the cost onto you. I'm glad I reread both Simons' letter to you and the statute. I smelled a rat when I saw the wording.
MARY: Why do I feel Simons is not going to be happy with us on Monday? Hope my gut feeling isn't correct.
RESPONDENT: But don't anger him [Simons] if possible. He'll be embarrassed on his own. Uhhh, maybe. We want him available for emergency appearances and to do some local legwork and to use his office for depositions. Of course, the court reporters have offices for depos, so his office is not a necessity for that purpose. I want to do the depos. My eyes . . . and ears . . . might be more eaglelike than his for the depos. But he would be handy as a local for some of the more prosaic motions. He's local also. He'll know the judges out there.
And at time of trial, you want to have a local computer handy. Laptops are fine, but but a real one with a real printer is best. Jury instructions and special questions for trhe jury, etc., can be done and are usually done ahead of time but there is always last-minute stuff . . . such as a brief on a particular legal point.
Fortunately a case like [your husband's] is not one that has lots of documents to be submitted as exhibits. In fact, we would strive to keep them all out. I would just use them prodigiously to cross-examine on. After the depos, some of the key players will want to vanish from the scene. They get embarrassed when they know they screwed up and don't want to take the stand.
Some we will put trial subpoenas on. Others we'll let go.
Also the asst DA doesn't want to call them as witnesses if he/she knows they are likely to be impeached on the stand. Asst DAs are not accustomed to having their witnesses impeached by prior testimony.
Of course, all of this is now just speculation. Lots will happen between now and then.
RESPONDENT: I've attached an attorney-client agreement. Read it carefully and then feel free to ask any questions you might have. Important to determine is whether Simons and Karen Breda will stay on the cases. I am assuming they will be.
MARY: I am assumming they will also. Karen we have no problem with, We will know more about Rich [Simons] after Monday. We had no questions about his competencany until we started corresponding. Now we have a ton of questions and a lot depends on his answers MARY (AFTER MONDAY'S MEETING: Barbara, We had our meeting with Simons today. It went well. This is what we found out.
1. He wants to hire an investigator. He is trying to question Sarah and Tim has not agreed.RESPONDENT: What is the investigator going to investigate? Who is the investigator going to question? What is he going to ask Sarah? Is he going to have a certified reporter there. Not someone to take illegible notes as were taken before.
MARY: 2. He wants to have [husband] take a polygraph. We are not concerned about that. RESPONDENT: You should be. I agree that a polygraph should be taken, but it os [of] considerable importance that [husband] be properly prepared ahead of time.
Go to my site and at the bottom any page, type in polygraph and see what I have written there about polygraphs and preparation and agreements regarding the polygraph. Too much to retype this time of night about polygraphs.
You realize, of course, that polygraphs are NOT admissible in Massachusetts. They are good for only waving around in front of law-enforcement officials if the defendant passes.
MARY: Yes. Rich's hope is that with a passed poly and other factors that the DA May withdraw case. I don't think so.
RESPONDENT: Agreed, I don't think so either. DAs know polygraphs aren't admissible
. . . although ask Rich if he has ever done a 702 hearing. Never mind, I'll ask him when I speak to him.
RESPONDENT: Actually, [husband] should take a battery of psych tests, objective, projective. MMPI-2, MCMI-II and MCMI-III, CAPI, MCI, Abel screen, plethysmograph.... I use Theoharis Seghorn. Great guy, competent. Used to run Bridgewater sex unit. Great credentials. Excellent on the stand. Easy to understand. Affable. Not pompous. He recommends Jim Johnson or Dennis Peloquin as polygraphers. Simons may have polygrapher out there whom he likes. MARY: We agree to all but the plethysmograph..Just the nature of it is very humiliating.
RESPONDENT: But Seghorn is worth the trip here.
MARY: That is do-able.
MARY: 3. Re: Motion to dismiss 2 counts. His thinking is that he wants to leave them in so he can use that as "previous false allegations" Makes sense to us. RESPONDENT: It shouldn't make sense to you. Jury is liable to see it as "continuing abuse". . . as if it was a habit . . . something customary.
MARY: Even though they were unsubstantiated and if this was a habit where are the accusations etc from the 1st 25 years of her life.
RESPONDENT: Right, even though . . . . Two less counts are two less counts he can be convicted of. Also it would be a shock wave to the DA to lose two counts right off the bat. Will make them look at the rest of the case.
You want to get rid of as much as you can ahead of time!!!! Isn't finding false allegation re rape enough to satify you folks???
MARY: Not sure of interpretation of this.
RESPONDENT: A little sarcasm crept in. The meaning was: Aren't two indictments enough to worry about? Do you need four indictments in place to make your day?
MARY: We are still having a lot of trouble accepting the fact that the law doesn't really care if we are innocent or if we have proof of our activities. It is a game and we are the pawns.
RESPONDENT: Welcome to the criminal justice system.
MARY: That is why we feel very strongly that you and Rich need to talk. You have the legal mind and we don't.
RESPONDENT: Yes, he and I are going to need to talk. Don't worry. I'll be pleasant. Probably will not speak to him today though. Likely tomorrow or Thursday. Will give him time to think about what you said and what I wrote. Will give me time also to simmer down.
MARY: 4. Disagrees with Carlson being both attorney and GAL but Sarah does not have an attorney. RESPONDENT: Simons is wrong. Carlson seems to have been appointed as both. Let him be atty for Sarah and get another DECENT GAL for her. Carlson is not doing what is in her best interests. That is what a GAL is for: to do things which are in her best interests.
MARY: We know that but Carlson thinks he is. We are not even allowed to contact him. I do think [Sister] am is going to as nothing has been done for Holidays yet.
MARY: 5. Still contends that court has the decresionary choice to make us pay for Carlson. RESPONDENT: Where the hell is he coming from? Whether he believes it is discretionary or not, HE SHOULD STILL PUT THE ISSUE BEFORE THE COURT. That statute I wrote to you about is not there for nothing. There is a reason. There is absolutely nothing to lose to bring the issue to court. If you win you are ahead thousands of dollars. Carlson's bill was only the first one! If you lose the issue, you'll still be where Simons is putting you now . . . that is, you'll be no worse off than you are now.
MARY: We know but we do not have the legalese to convince Rich. I even went on line to search and to print it out. We will be financially devastated anyway you look at it. Just when we thought we might enjoy our golden years.
MARY: 6. He is willing to work with you as a consultant but he is not as enthusiastic as we are. He wants to talk to you and to know more of your credentials. He is being save. RESPONDENT: Is he willing to speak to me if I call him? Or does he want to call me?
Tell him I won the first prize from my law school for the Nathan Burkan Competition sponsored by ASCAP and I won West Publishing Company's Corpus Juris Secundum award upon graduation from law school. Each year of law school someone is first. In my last year, I was first and because I Aced it across the board, my annual average for that year was higher than the ANNUAL average of the others who had been first for a year, so I won the award. It was a feather. My kids were excited when I was called up onto the stage.
What the hell does he want to know stuff like that for? It means nothing. On the criminal side of my ledger, no one ever went to jail because of me on my shift. That counts. (Early on I took appointed cases -- public defender -- and 95-98 percent of them were guilty as hell. Some were picked up on a new charge but had an old charge on which they had defaulted -- for instance, violation of probation 5 years earlier. That's a mandatory sentence. Had nothing to do with me. So in some instances, they had to go because they violated probation -- black and white situation. Don't report when you should, go to jail for, say, 60 days or for the time that was revoked for the previous sentence. But none went to jail for the charges I was defending against for them. In those days, I took everything to trial in order to learn. Would buy the tapes and listen in my car's tape deck. Never committed the same mistake twice. Developed my style that way.)
MARY: Yes he is willing to speak with you. I think you should call him.
MARY: We are running scared.
RESPONDENT: Understandable. It is an appropriate reaction to what has happened.
MARY: MARY: 7. He does agree that we need to become very aggressive on the civil side. RESPONDENT: Good.
MARY: 8. New laws prevent us from getting Jennifer Klines's reports as a Social Worker. They are now confidential.
RESPONDENT: Obviously we disagree.
MARY: 9. Asked him to request all tapes, video or audio even though we don't think there were any. No law that states they have to. In MLM report she mentions at least twice, "break in recording". No, they did not have a certified reported.
RESPONDENT: Ask and ye shall learn.
MARY: 10. Simons has worked both sides of this issue, prosecutor and defense. On defense he has taken 2 to trial both with "Not Guilty" verdicts and 2 that were dismisses.
RESPONDENT: When was he an assistant DA? That's the only way he could have been a prosecutor. How long has he been working the defense side? That is, when did he leave the DA's office???????
MARY: 11. Asked him point blank if he believed in our innocence and with out hesitation he said "yes"
RESPONDENT: Doesn't matter. What is important is whether he has the passion and the necessary accoutrements to do what is necessary.
MARY: It matters to us. But he has not shown the passionate fighting side of himself.
MARY: 12. Elaine is not a mandatory reporter but a fresh complaint witness, therefore not under immunity as she believes she is. RESPONDENT: Right. Mandatory reporters are teachers, doctors, nurses, "mental-health workers" such as soc.workers, rape-crisis counselors, psychologists, law enforcement. Go to my site and type in "mandatory reporter" in the site-search tool.
Also go to my site and type in "fresh complaint". I have a lot written there about fresh complaint witnesses, fresh complaint testimony. What Elaine thinks she has is unimportant. That's her problem, not yours.
MARY: Yes but it may be to our benefit later. Let her think she is immune and let her hang herself.
MARY: 13. Questioned about Dr. C. not reporting and he stated same as I did "She knew complaint had been made therefore did nothing" Gave him your side. RESPONDENT: My side is a helluva lot better than his. That is, mine is more favorable to you than his.
MARY: 14. I gave him copies of all correspondence we have had (eliminating specific references to him) to ponder.
RESPONDENT: Good.
MARY: 15. We have read and re-read your Client Fee agreement. Did not show it to Simons . Forgot to include in papers we took. It looks to be very upfront and forward.
Question "undesirability" of case, Please explain furtherRESPONDENT: Say someone comes in and says he was discriminated against because of his age. No evidence that he was discriminated against because of his age. He just may have been, for instance, a salesman who never met the goals set for him for his territory. (Let's assume for the sake of argument that the goals were not set artificially or unfairly high.) Since discrimination cases are taken on contingency, lawyers would think if they don't win, they won't get paid for all their work. Because the case looks like a loser, it is an UNDESIRABLE case. Not the best example I could give you, but the easiest one to give you at 3 o'clock in the morning.
MARY: Awards in similar cases. From where we sit no awards in this case. Just a "NOT GUILTY" and a return of our daughter to us.
RESPONDENT: Right. There are no awards in criminal cases. Only in civil cases.
MARY: 16. We also asked Simons to request police and 911 records because Sarah stated this happened.
Knowing there are no records. This should go to the credibility of the witness.
MARY: 17. DA is planning to call all the same witnesses for trial as were at GJ. Have not provided him with a list of experts.
RESPONDENT: Has the DA provided him with a written witness list?MARY: Not to our knowledge or we haven't seen them. We cannot get it across to him that we want copies of everything. Or if we have he hasn't sent them.
RESPONDENT: It must be made clear to him that you want to see everything.
MARY: 18. Simons wants to hire a Neurological specialist in Stroke victims. He will be asking you about that.
RESPONDENT: Good.
MARY: 19. During family conversations and reminiscing this came out and hit us like a ton of bricks.
Very difficult to explain with out visual.
In our family when something makes you sick or disgusted, we always use the index finger, pointed to the mouth, in an in and out motion, the comment is "Barf city". Thus the references in MLM report that Sarah point to her mouth with gesture is not signifying oral sex but simply "barf city". This whole thing makes me sick. What ever happened at Elaine's with either Ken or Sonny made her want to "barf" and not that anyone had performed oral sex as they claimed.
Can you understand this?
RESPONDENT: Yes, I do. It's a common gesture, seen on TV in sitcoms. The kids today use it.
MARY: We don't watch sitcoms and very little TV. Do know it has been around a long time.
RESPONDENT: I don't watch them either, but a friend of mine who does it all the time says that's where she lerned it.
MARY: 20. Simons has promised us copies of all motions. We shall see.
RESPONDENT: I am anxious to see them too.
MARY: Rich [Simons] has asked me for all Sarah's IEP's so that is what I do tonight. Would you like copies also?
RESPONDENT: Yes, yes, yes.
MARY: We assume you haven't spoken to Simons yet. He called today and he has bad feelings. Can't sy how or why, because we don't know. Will wait any further action until you 2 speak. WE CAN'T AFFORD TO LOSE.
A very depressing day for many rasons. Not just this God Awful nightmare.Won't someone pinch us and wake us.
Waiting yiu comments on your conversation with Simons .
I should get a chance to speak to him -- I'm hoping on Friday -- if not tomorrow late in the day.
...
RESPONDENT: Simons’ father is a retired judge. So young Simons should fit with the court to some degree. He was an assistant DA for a few years. Then worked for a firm in Needham, civil work. That means he handled misdemeanors, not felonies. Although he obviously would have gained trial experience. It also means he's wooden. I could be wrong. I'm guessing. I'm assuming. His greatest asset would be his father. It looks like Richard went home to start a firm, then a year or tweo later dad got off the bench and went in with his son.
11/19/99 Friday Phone to and from Richard Simons
RESPONDENT: Simons did call back. I was pleasant. He was pleasant. He was uncomfortable about working with other counsel. I told him my credentials -- and told him to visit my site -- and let him know I knew his. He didn't know what plethysmograph was. I know you felt that [your husband] would feel uncomfortable about this, but the penile plethysmograph is acceptable evidence in Mass. -- the Rosenberg case in June 1991 -- and [your husband's] passing it would be excellent! I remember that case well because Theoharis Seghorn, who gives the test, was an expert in a case of mine which I tried in March 1991, three months earlier.The plethysmograph had been admitted in the "June" case but had still been on appeal in March. In my "March" case, all worked out well because I tried so hard to get it admitted and the judge had let in ALL the other tests Seghorn conducted and all the info related to the plethysmograph, that the judge knew that my client had passed it . . . and the judge adored Seghorn for his friendly professionalism. Judge found my guy (Probate & Family court, divorce case) to be "a good man."
So when the "June" case came down, I was delighted. Made things easier for the cases to follow. It's a good defense tool for an innocent man.
(I made Seghorn into a character in my book. Got his permission last year to use his trial testimony. Didn't need it 'cuz it was public record, but in deference to professional courtesy, I asked him. He was great . . . and said Yes. I'm using him on another case now, in fact. Seghorn used to run Bridgewater sex unit for years before he went into private practice. For most of his early (first 20 years) he was, because he was working for the Commonwealth) a prosecution witness, so he cannot be attacked as being a hired gun for the defense.
Spoke about the motion to dismiss the two A&B counts. He said he had filed a Bill of Particulars. When I explained my strategy about getting the records, etc., he became more receptive, thinking that his B/P would would give means, manner, time, and date. (Go to my site and see the Bill of Particulars there.) His defense was that they didn't charge [your husband] with anything in 1984, I said that was the point. They mistook it for happening in 1993. I said when he produced the medical records (and possibly insurance) in addition to the testimony of your friend who drove you and Sarah to the hospital, the DA would be hard-pressed to prove that Sarah put her leg through the shower door TWICE. That seemed to register with him and I thought I sensed a little excitement in his voice. He didn't commit to bringing the motion to dismiss but edged closer to doing so.
I pointed out to him some of the most obvious things: no questions and investigation about Sarah's present living conditions, no mention of Sonny, no depo exam of Elaine, etc., etc., etc. I sensed he was embarrassed that none of that had ever occurred to him. So he said, he was worried that if we opened up discovery in the guardian case, they could take [your husband] on depo.
I explained to him that it didn't matter. First line of defense if [your husband] were called to depo is to move for a protective order because it would prejudice him on his defense in the criminal trial. But in truth, it wouldn't make any difference . . . unless there is something which I do NOT know. A man like [your husband], no criminal record has nothing to hide and therefore no reason to avoid a civil depo. I would prepare him very well ahead of time, so he wouldn't be surprised, and would know what to expect. And unless [your husband] has something to hide from a jury, there would be no reason he could not take the stand in the criminal case. Jurors li