A MEMORANDUM TO THE COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE, UPON ITS HEARINGS WHETHER TO CONSENT TO THE APPOINTMENT OF THE HON. SONIA SOTOMAYOR TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES OF AMERICA
Sonia Sotomayor's Collaboration in a Judicial Deceit and Cover-Up While a Federal District Judge and a Member of the Second Circuit Court of Appeals Raises Troubling Questions
WHEN THE FEDERAL JUDICIARY'S CULTURE OF COLLEGIALITY BECAME A CONSPIRACY OF SILENCE
Sonia M. Sotomayor, "No Lawyer, Bad Lawyer – What's a Judge to Do?," Jon Newman Annual Lecture on Law and Justice, University of Hartford, October 20, 2008. pg 4.
Scaglione v. Mamaroneck Union Free School Dist., 144 Fed.Appx. 120, No. 04-1054-cv, 2005 WL 6818 (2d Cir. March 25, 2005)
Citations for the Cases Under Discussion
Scaglione v. Mamaroneck Union Free School Dist., 144 Fed.Appx. 120, No. 04-1054-cv, 2005 WL 6818 (2d Cir. March 25, 2005)
Groden v. Random House, Inc., et al., 1994 WL 45555, 1994 U.S. Dist. LEXIS 11794, 32 U.S.P.Q.2d 1266, 1994-2 Trade Cas. P70,702, 22 Media L. Rep. 2257 (S.D.N.Y. Aug. 23, 1994)(No. 94-Civ. 1974); Groden v. Random House, Inc., et al., 1994 WL 519871, 1994 U.S. Dist. LEXIS 13416 (S.D.N.Y., September 23, 1994) (No. 94 Civ. 1074 (JSM)); Groden v. Random House, Inc., et al., 1994 WL 681770, 1994 U.S. Dist. LEXIS 17296 (S.D.N.Y., December 5, 1994) (No. 94 Civ. 1074 (JSM)); aff'd 61 F.3d 1045 (2d Cir. 1995).
Introduction and Summary
Probably the worst fear that any average citizen has in dealing with a local, state or federal government official is the fear of running up against a brick wall: not having a chance to tell his side of the story. When people are not allowed to present evidence on their own behalf, their basic citizenship is being denied. The authorities are saying, "Go away. We don't want to interact with you."
Besides the opportunity to state our case – to present evidence – we also trust that the people who make decisions over our lives will be neutral; that, if they are not entirely free of bias, which is very difficult, they will at least be able to suppress their bias in an effort to be fair and objective. We also expect people in authority to be free of ties to the parties in dispute. Finally, we expect that, whatever the outcome of our problem, the rules – both the procedural rules and the rules that assign legal responsibility – will be applied consistently with the experience of others in the community.
We justifiably expect these norms. When they are violated, what is important is the opportunity to appeal to other decision makers to correct any inaccuracy or unfairness. All of this assumes the integrity and the honest motives of those who exercise decision-making authority in our society.
In the civil lawsuit that Robert J. Groden brought on February 17, 1994, against Random House, Inc., The New York Times, and Gerald Posner, each of these legitimate expectations was seriously compromised by multiple lies that were told by judges who were sworn to uphold the law and seek the truth.
Lawyers are indoctrinated in the belief ("delusion" might be a more apt term) that judges are incapable of lying; they merely commit "error" or "abuse of discretion."
However, when judges falsify the procedural facts of their written opinions to conceal what actually occurred in pre-judgment proceedings – i.e., when they lie to the press, the public, the bar, and other courts about the facts of a case – the descriptive application of such lawyerly, dignified, felicitous, and neutralizing verbal formulae as "injudicious," "unsound," "abuse of discretion," or "error of law" deforms language itself and camouflages something infinitely and egregiously more threatening, coercive, and destructive of the judicial process. Such linguistic anaesthetization deeply and subtly oppresses an attorney who seeks to represent his client and at the same time maintain proper decorum toward – and his future relationship with – the courts. It overlays the respective roles of supposedly neutral judges and the lawyer-advocate with a connivance, or a tacit collaborative agreement, to pretend that intentional falsehood and deception are something altogether different. It places him in conflict between his untrammeled loyalty to his client and his role as an officer of the courts.
This Memorandum deals with what until now had been the hidden history of a legal matter that ranged between 1994 and 2000, and in which Sonia Sotomayor played a role, both as a United States District Court Judge and as a member of the United States Court of Appeals for the Second Circuit. I say "hidden history" because the matter played out just as the World Wide Web was in its infancy, and mostly in unpublished court decisions and administrative proceedings still not readily accessible to the general public or to journalists.
While sitting as a federal district court judge, Sonia Sotomayor was also a member of an executive committee of the United States District Court for the Southern District of New York: the Committee on Grievances. In that capacity, she became intimately familiar with the facts of Robert J. Groden's lawsuit against Random House, Inc., The New York Times, and Gerald Posner, in which I represented Bob Groden as his attorney, and she played a role in my disbarment following the Groden litigation upon the complaint of the district court judge who presided, John S. Martin, Jr. Later, as an appellate judge on the United States Court of Appeals for the Second Circuit, Sotomayor cited the appellate Opinion written in the Groden case by her mentor, Judge Jon O. Newman, almost as if her citation was an inside joke among her colleagues, knowing that Newman had falsely portrayed the facts of that case, nevertheless promoting it (and not so coincidentally, protecting her mentor's reputation) in a deeply dishonest manner.
When Sotomayor wrote for the Second Circuit in the Scaglione case quoted above, she knew full well that Groden had been purposely, willfully, and deliberately denied that "reasonable opportunity to present all material made pertinent" to defeat his opponents' motion to dismiss his case. The Second Circuit has repeatedly promoted its Opinion in Groden as valid precedent for this "reasonable opportunity" principle without ever admitting to the underlying procedural facts of the Groden court record, which reveal that he was deprived of the very opportunity to which they say he was entitled.
Sotomayor superficially appears to be a rather sympathetic figure from an earthy background. Such people, however, do not always remain loyal to their roots when ushered through the Ivy Leagues and the halls of judicial power. When Sonia Sotomayor had the chance to "speak truth to power" – indeed, when she herself was the power – when she had the chance to expose the denial of a litigant's due process right to be heard, Sotomayor did not merely remain silent; she protected her judicial colleagues and directly participated in sinking injustice into an embarrassed silence. At a crucial moment in the history of the controversy over President John F. Kennedy's assassination, she helped to denigrate a true patriot in American history and destroy his life; helped to destroy his attorney's career and his life; and failed to meet the test of honesty, independence, and integrity. As accomplished a legal technocrat as she may be, the spirit of the law and justice does not reside in this woman, Sonia Sotomayor, and it is doubtful she may be trusted to perform the role of a principled legal decision-maker in the nation's court of last resort. Public confidence in that Court's role and function in government requires that the Senate refuse to give this nomination its consent.
True copies of five documents indispensable to an understanding of this matter are attached to this Memorandum as exhibits.
The Groden v. Random House, Inc. Litigation in the U.S. District Court for the Southern District of New York
Nature of the Groden v. Random House, Inc. Lawsuit
During two weeks in August 1993, Random House published an advertising campaign for the sale of its book, Case Closed, in The New York Times. It consisted of four separate advertisements. After twice promising readers to name "the guilty" in the assassination of President Kennedy, the last two ads named and depicted Robert J. Groden as one of six persons boldly accused of being "GUILTY OF MISLEADING THE AMERICAN PUBLIC" regarding the assassination. Each in the series of four advertisements ran in two separate editions of The Times that were disseminated nationwide. The last two advertisements attributed a quote to Groden – purported theory of responsibility for the assassination of the President. The source and origin of the quote were not otherwise specified. Beneath the photos appeared the legend in bold: "ONE MAN. ONE GUN. ONE INESCAPABLE CONCLUSION." Readers were solicited to purchase Case Closed by Gerald Posner.
Mr. Groden in the Fall of 1993 had a competing book of his own entering the marketplace, The Killing of a President. This had been publicized in the trade press, also some mass media, during the spring and summer of 1993. Besides this new book, Groden also produced and simultaneously released a video product for the home market, JFK: The Case for Conspiracy.
Mr. Groden retained me in September 1993. On February 17, 1994, once his pecuniary damages appeared ascertainable, I filed a Complaint with a jury demand on his behalf in the United States District Court for the Southern District of New York against Random House, Inc., The New York Times, and Gerald Posner. Groden v. Random House, Inc. et al. was a trade regulation case in which Mr. Groden claimed violation of the New York Civil Rights Law ßß 50-51 (commercial misappropriation of name and likeness), and the federal Lanham Act ß43(a) [15 U.S.C. ß1125(a)] (false advertising).
The Groden case did not begin as a politically-oriented case pursued for political purposes, but as a commercial case grounded in traditional commercial theories to recover commercial damages. Originally, the only issues we raised were the misappropriation of Mr. Groden's name and photograph in the defendants' print advertising, and the misattribution to him of a quotation that he never wrote or uttered – a quotation expressing a political conspiracy theory that Mr. Groden never espoused and does not hold.1
In fact, both Mr. Groden and I disclaimed at the earliest opportunity any desire to make his case a platform for testing the Warren Report's and Posner's version of the Kennedy assassination. For example, my Memorandum of Law in Opposition to the defendants' motion to dismiss the Complaint began:
"The assassination of President Kennedy, which is rapidly passing from the sphere of current affairs into history, has been the subject of impassioned debate since it happened more than thirty years ago. This case is about neither the assassination nor the relative merits of that debate. Rather, it concerns the civilized norms of and proscriptions against certain forms of behavior in the commercial marketplace. That the assassination and collective memory of that event deeply touch the facts of this case, invites the constant danger that a fact pattern which, if it concerned any other subject, would be mundane, may obscure and overwhelm the very clear applicability of settled principles with unseen and unfortunate consequences."
Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss, dated May 20, 1994 (Document No. 12, Docket No. 94 CIV 01074 (JSM))
To us, the fact that the subject of the assassination was involved was initially no more than coincidental to the fact pattern. In other words, this was a case of commercial exploitation of Groden's personality and renown by a market competitor in an advertising campaign to sell a book that dealt only in passing with Groden himself.
Other than to allege the falsity of the advertisement in general terms, Groden's original Complaint did not specifically assume any burden of proving the falsity of the "One Man. One Gun. One Inescapable Conclusion" assertion in the ad as part of his Lanham Act claim. Furthermore, we did not claim that Case Closed was false, or that it falsely attacked Groden. Our position was that Posner had the right to his views, the problem involved here being one of unfair competition.
Almost from the outset of the district court litigation, the defendants admitted that the sole purpose of their advertising campaign was to promote the sale of Case Closed. Their obvious intent was to promote the salability of the Random House book by attacking and discrediting a direct competitor (i.e., negative comparative advertising) in the marketplace for books on the subject of John F. Kennedy's assassination.
The thrust of the case, therefore, was to secure for Mr. Groden (and other critics of the government's response to the assassination) the same limited protections for commercial marketing that are guaranteed to any other seller of a product or service, including communicative, without fear of having their personalities and good will with the the public exploited, and their books bulldozed, by wealthier and more powerful interests who, notwithstanding their own exercise of civil liberties, unmistakably seek also a commercial gain.
Procedural Chronology of the Groden Case
April 1, 1994, the defense firm notified me that they desired to make a Motion to Dismiss the Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and enclosed a copy of their proposed Notice of Motion without supporting papers. A pre-motion conference with the presiding judge was set under his Individual Rules.2
At the outset of that initial conference in chambers, the presiding judge expressed some concern whether we were "going to litigate the Kennedy assassination." We did not regard litigating that subject as strictly required to secure Groden's recovery under either of his pleaded causes of action. I asked, but was specifically directed by the presiding judge not to take any discovery of the defendants while their motion was pending.
Defendants served their motion papers May 4, 1994. The final version was styled as a motion to dismiss pursuant to Rule 12(b)(6), or "in the alternative, granting summary judgment."
The attorneys for the parties exchanged papers on the motion, and oral argument was scheduled for June 24, 1994.
Up to that point, the simple essence of the defendants' arguments was that the first amendment should protect advertising for a book if it accurately reflected the book's contents. 3 They did not claim anywhere in their briefing that the advertising campaign made a true statement about the Kennedy assassination. They did not argue anywhere that it was a statement of opinion about the Kennedy assassination. They did not so much as even suggest that one side of the assassination controversy was right or the other wrong.
So long as they did not claim at any point in their papers that their book was true, or that what the book said about Groden was true, I was unconcerned. We were there about an ad campaign, not a book.
Raising a New Argument and Interjecting the Milkovich Doctrine
On June 24, 1994, during oral argument of the defendants' motion to dismiss, their counsel, Victor A. Kovner, made a remarkable and bold new contention not contained in his briefs. The Kennedy assassination is such a controversial and seemingly irresolvable topic, he argued, that since no one has ascertained with any certainty what happened during the assassination, the ad must be taken as merely opinion. (They were apparently reluctant to expound this argument in plain written English on the public record while they were promoting Case Closed's strident, anti-conspiracy defense of the lone assassin thesis.) To my mixed pleasure and concern, I heard the judge say to Mr. Kovner, "You're going to have more of a problem under the Lanham Act." 4
In a follow-up letter to the presiding judge dated July 5, Kovner advanced the completely new and novel suggestion that the standard laid down by the Supreme Court in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) for distinguishing actionable statements of fact from protected opinion in common law libel cases should govern the same distinction in Lanham Act cases. Milkovich had never before been applied to a false advertising case. 5 (See Attachment No. 1.)
In his letter to Judge Martin dated July 5, 1994, Kovner described how this came up:
"At that argument, Your Honor addressed the issue of whether the advertisement's headline "GUILTY OF MISLEADING THE AMERICAN PUBLIC" could be found to constitute a "false or misleading" statement actionable under ß 43 (a)(2) of the Lanham Act. Specifically, Your Honor questioned whether this statement misrepresented plaintiff's "product" – whatever that may be – as opposed to misrepresenting defendants' product, the book Case Closed. Since this issue was not the focus of plaintiff's complaint or papers and thus was not discussed in detail in defendants' moving or reply papers, the Court may find helpful supplemental briefs by the parties . . . on this limited issue."
Letter to The Honorable John S. Martin, Jr. from Victor A. Kovner, July 5, 1994. Joint Appendix at 206. Groden v. Random House, Inc., et al., 61 F.3d 1045 (2d Cir. 1995)(Docket No. 94-9100).
This much we can derive from what Kovner wrote: At the oral argument, Judge Martin guided him in substance: "You've covered the point about the ad representing the theme of the book, but what about the ad's attack against Groden?" This was a glaring "blind spot" in Kovner's entire submission.
Judge Martin's question went to this principle of advertising construction in trade regulation jurisprudence: "Statements susceptible of both a misleading and a truthful interpretation will be construed against the advertiser." 6 In other words, even if it were true that the ad accurately described the book, it might still be a false negative comparative advertisement as respects Groden.
Here is the way Mr. Kovner summarized and finessed the new argument in his July 5 letter to Judge Martin:
"Defendants' supplemental brief would demonstrate that under both standard First Amendment analysis and false advertising cases applying ß 43(a), a verifiable false fact must be present for an action to proceed. See, Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S. Ct. 2695 (1990); . . . . Thus, finding a statement of fact in the observation that Groden's conspiracy theory, as quoted in the advertisement, was "misleading" would require this Court to determine the truth or falsity of the conclusion of the Warren Commission."
Letter to The Honorable John S. Martin, Jr. from Victor A. Kovner dated July 5, 1994. Joint Appendix at 206. Groden v. Random House, Inc., et al., 61 F.3d 1045 (2d Cir. 1995) (Docket No. 94-9100).
This issue raised by Kovner was not only outside the scope of Mr. Groden's original Complaint, but was of a very different order of magnitude than the issues that either side had argued in their previous written submissions on defendants' motion to dismiss. Kovner was now challenging us, in effect, with the assertion that proving the Warren Commission's Report false was a logical requirement for Groden to prove his case, but that he could not do so because no one else had yet been able to prove it false. That assertion arguably rose to the level of injecting an issue of fact into the dispute at bar. The questions were now on the floor whether the court should/would apply the Milkovich standard to Groden's lawsuit, and whether the advertisement stated or implied provable facts about Groden's work that were capable of being objectively characterized as either true or false.7
The Concept of Summary Judgment
The key to understanding the significance of Kovner's letter to the judge, and of what happened next in the Groden case, lies in the legal concept of "summary judgment." Summary judgment is a method for expediting the resolution of a lawsuit without the expense and length of a trial when there are no material issues of fact outstanding between the parties. When such issues exist, they must be resolved by a trial. (When Robert Groden filed a Complaint in his lawsuit, he demanded a trial by jury. Sometimes, people ask for a trial by a judge alone.) The party seeking summary judgment bears the burden of demonstrating that there are no material issues of fact that would affect the outcome of the case, and that applying rules of law would require a judgment in his favor. The party opposing summary judgment must demonstrate either that there are factual issues for trial, or that, if there is agreement upon the facts, the law favors him instead.
Because summary judgment has the potential of depriving a litigant of his day in court, a number of procedural rules and formal requirements have grown around it. However, exactly how much it takes to persuade a court that there either are or are not sufficient factual issues to warrant a trial was left in some doubt by a series of Supreme Court decisions in 1986, known as the Celotex, Anderson, and Matsushita "trilogy".
If, prior to Judge Martin's dismissal of the case, there was any argument made by the defendants that hair-triggered summary judgment, this was it, because it challenged us to come forward with proofs. But the parties had already submitted their papers and their memoranda, and the motion had been orally argued.
Meeting the Defendants' New Issue
I replied to Mr. Kovner's letter with a letter of my own, addressed to Judge Martin and dated July 8, 1994. (See Attachment No. 2.)
First, I noted that the defendants' motion had been fully argued and submitted, and I objected to expanding the scope of the motion, While expressing plaintiff's willingness to litigate further "if it will assist the Court in rendering a decision."
Turning to the new issue proposed by the defendants, I wrote:
"The twin statements "Guilty of Misleading, etc." and "One Man. One Gun. One Inescapable Conclusion" are false statements. They state facts that are objectively verifiable, and are made in connection with products and services in interstate commerce, both the plaintiff's and the defendants'."
I concluded the letter with the following:
"In oral argument, counsel raised the suggestion that, since the Kennedy assassination is such a controversial and seemingly irresolvable topic, the ad must be construed as stating an opinion. The Kennedy assassination happened over thirty years ago. Over half the population has no personal recollection of that weekend. The controversy is not a real controversy in the sense that, were the Government to reveal tomorrow that there was a conspiracy to kill the president, our lives or our society would change one iota. Also, as a private citizen, Mr. Groden is not in any position to affect the ultimate outcome of that controversy.
"On the other hand, President Kennedy was either killed by one man or more than one man. This is, however, a matter that is capable of resolution. . . .
"We offer to prove, through what the Government has represented to be the original autopsy X-rays of President Kennedy now reposited in the National Archives, the Zapruder film, and other demonstrative evidence, that there is a reasonable medical and scientific basis for concluding that President Kennedy was assassinated by more than one gunman, so that a jury may decide who is guilty of misleading whom. Groden cannot try the case of Oswald's guilt or innocence in a civil action in the Southern District of New York, nevertheless, we can make a showing that there are substantial reasons to believe that Kennedy was shot by more than one gunman. Moreover, we will show that plaintiff's belief that there was a conspiracy in the assassination is long-held, sincere, and well-founded in objective evidence. These showings would unquestionably render the advertisement false."
Letter to The Honorable John S. Martin from Roger Bruce Feinman, Esq. dated July 8, 1994. Joint Appendix at 209-11. Groden v. Random House, Inc., 61 F.3d 1045 (2d Cir. 1995) (Docket No. 94-9100).
Judge Martin did not respond to my letter dated July 8, 1994. I called his chambers and asked his law secretary whether the judge would take any further submissions. I was told by his law secretary that no further submissions would be taken.
After writing my letter to Judge Martin, I amended Mr. Groden's Complaint as of right, served the defendants, and filed the Amended Complaint with the Clerk of the Court. The Amended Complaint added a new defendant, and furthermore contained the following additional language at paragraph 83:
"83. The claim in the advertisement that there was only 'one man, one gun, and one inescapable conclusion' about the Kennedy assassination was a materially false and misleading representation of fact, either in whole or in part. There is serious and substantial cause for a reasonable doubt that one man, acting alone, shot and killed President Kennedy, and to otherwise believe that more than 'one man, one-gun' was involved. In the alternative, President Kennedy was in fact assassinated by at least two gunmen."
The Grant of Summary Judgment
Judge Martin issued his Memorandum Opinion and Order granting summary judgment to the defendants and dismissing Mr. Groden's case with prejudice. The defendants' new "Milkovich argument" was central to his Opinion dealing with the Lanham Act branch of the lawsuit:
"The issue is therefore whether or not the statement in the Advertisement, "GUILTY OF MISLEADING THE AMERICAN PUBLIC," could be reasonably interpreted as stating or implying provable facts about plaintiff's work. Cf. Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S. Ct. 2695 (1990)(in context of state defamation laws, distinguishing between statements,of opinion which imply false assertions of fact and statements of opinion – which merely articulate subjective assertions)."
"The proliferation of theories about the Kennedy assassination is proof that there is no universally accepted factual answer to the question, "Who killed President Kennedy?" The statements "GUILTY OF MISLEADING THE AMERICAN PUBLIC" and "ONE MAN. ONE GUN. ONE INESCAPABLE CONCLUSION" could not reasonably be interpreted as stating anything other than a subjective belief. Therefore, the challenged statements are inherently different than the type of factual representations covered by the Lanham Act."
"The Court rejects plaintiff's assertion that each statement in the Advertisement is capable of objective verification. While this may be true hypothetically, the known evidence concerning the Kennedy assassination and the extensive debate over the Warren Commission's findings demonstrate that the actual facts will never be verifiable to everybody's satisfaction."
Rule 12(b)(6) of the Federal Rules of Civil Procedure stated in pertinent part:
"[I]f the motion shall be treated as one for summary judgment . . . all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."
In his decision, Martin included the following statements:
"Plaintiff has failed to establish any factual dispute on the threshold element of a false advertising claim: falsity."
"Plaintiff has failed to establish any genuine issue for trial on his false advertising claim."
In truth, Martin had refused to permit us the opportunity to meet the defendants' argument with evidence, the nature and substance of which we had apprised him we were prepared to submit.
Martin made no direct reference to, neither did he evaluate, my offer to submit those proofs that we were prepared to submit in opposition to summary judgment had we been given the opportunity. Quite the opposite, it would be fair and natural to infer from Martin's decision that he had given Mr. Groden the opportunity to submit evidence on the Milkovich question, but that Mr. Groden was unable to meet his burden of proof, and that "the known evidence" does not admit to ascertaining the truth. This clear implication was nonetheless false.
The Judgment, dated August 25, 1994, read:
"[T]he Court on its own initiative having treated the motion as a motion for summary judgment ... the complaint is hereby dismissed for the reasons stated in the Court's Memorandum Opinion and Order, dated August 23, 1994."
(emphasis supplied). Doc. No. 15, Groden v. Random House, Inc., et al., 1994 WL 45555, 1994 U.S. Dist. LEXIS 11794, 32 U.S.P.Q.2d 1266, 1994-2 Trade Cas. P70,702, 22 Media L. Rep. 2257 (S.D.N.Y. Aug. 23, 1994)(No. 94-Civ. 01074). (See Attachment No. 3.)
When he issued his Opinion on August 23, with its false account of the procedures leading to his award of summary judgment, Judge Martin made sure that it went to the district court's press office, and it was immediately publicized over the wire services and other media (I first learned about it through a phone call from an Associated Press reporter). There could not have been a better way to intimidate the lawyer who had taken this case into abandoning it as hopeless as soon as he read the decision, instead of vigorously pursuing corrective remedies, nor to confront a lawyer with the implicit threat that challenging this instantly and highly publicized decision would entail challenging the honesty and veracity of the judge, with all of the dire consequences such a challenge might portend. Martin was not going to alter that decision, let alone admit that he had refused our offer to submit evidence.
It bears repetition and bold emphasis that Martin had raised a substantive issue in Mr. Groden's case that we did not originally raise; prodded the defendants to advance a brand new argument after their motion to dismiss had been fully argued and submitted; then undercut us at the very instant that we sought to join this new issue – his issue. He used this belated argument, for which he allowed no contradiction, as a pretext to go beyond the four corners of Groden's original Complaint and – in the manner of a preemptive strike – undermine and denigrate the significance of what my client had attempted to accomplish for three decades. It had been a particular concern of mine to protect Groden from this exact kind of overreaching. He had come to court to redress serious economic injuries inflicted upon him by the defendants, nevertheless he ended up suffering further gratuitous injury at the hands of the presiding judge.
"The known evidence" that he "knew" about was not identified to Mr. Groden or me before Judge Martin issued his decision, or to the public and the legal profession through the decision itself. How that "known evidence" demonstrated anything, or would if it were identified, was left unclear, so that its relevance could not be evaluated. It certainly did not include "the known evidence" that he refused to examine.
There is no requirement that a jury verdict put an end to all public controversy and debate. The "actual facts will never be verifiable" statement was an unwarranted and indefensible question-begging assumption. Judge Martin had our written offer to submit proof, which he refused to allow before issuing his decision. Since no competent or admissible evidence concerning the Kennedy assassination was before him when he wrote these words, they clearly showed that he was proselytizing on the merits or the importance of the controversy surrounding the Kennedy assassination.
Among the other major flaws in this argument were its fallacious appeal to ignorance – we cannot infer objective probability or improbability, let alone truth or falsity, merely from the failure to demonstrate them in the past – and its fallacious appeals to popularity and to common knowledge: The merits of something are one matter and its popularity another; the issue in the Groden case was not what is commonly known (or believed) but what is true.
More than the mere denial of an opportunity to be heard, Martin's false account of the procedural facts of the Groden case was an integral, indispensible, incorporeal supporting element in the overall thrust of his Opinion, which conveyed to the press, the Bar, the general public, and other courts his "message" of what the Kennedy assassination controversy supposedly meant to him. For we need not concern ourselves with truth or falsity if people will never be able to agree upon the truth in the first place. Of course, this makes the whole discussion seem pointless.
September 1, 1994, within ten days after Martin granted summary judgment to the defendants, I submitted to the district court on Mr. Groden's behalf a bare Notice of Motion to Reconsider, Reargue, Alter, Amend, Modify, Vacate and Voluntarily Recuse. Pursuant to Martin's Individual Rules, the proposed Notice of Motion was served and submitted to chambers without any supporting papers, pending a motion conference. The Notice of Motion asserted numerous errors of fact, law, or both, also several grounds for recusal. Because the document incorporated on its face the names of the witnesses whose affidavits we sought to present, among other items, it evinced our clear intent to submit to the District Court the evidence that it had prevented us from submitting before the Opinion, Order, and Judgment dismissing the action.
Although Victor Kovner never answered the Amended Complaint, on September 8, 1994. he did write a letter to Judge Martin requesting a conference to discuss the Notice of Motion. However, for more than three weeks after service of Groden's Notice of Motion upon both chambers and the defendants, Martin never scheduled a conference or responded in any other way.
Meanwhile, I was informed for the first time that a parallel lawsuit directed at the Random House ad had been brought by Mark Lane in the District Court for the District of Columbia; that a motion for summary judgment was pending there; and that Groden's defendants in New York had submitted a copy of Martin's decision to the D.C. court.
Now, time was of the essence. Given his extravagant ridicule of the entire subject of President Kennedy's assassination, and his refusal to allow me to submit evidence on a question that he himself had raised, it was a foregone conclusion that Martin would deny my motion to re-open his judgment. I had to make an effort to expand the Groden record, giving Martin issues that he could not determine as matters of law absent a jury. I had to get my evidence into the appellate record of that case.
Then, on September 23, 1994, I was telephonically notified by Martin's law clerk that, without ever having conferred upon Mr. Groden's motion; without having received any papers in support or in opposition; and without having heard any oral argument, the court had issued a Memorandum Opinion and Order denying the Motion to Reconsider, Reargue, Alter, Amend, Modify, Vacate and Voluntarily Recuse, and dismissing the Amended Complaint on his own initiative.8
Addressing what he characterized as "personal attacks," which he also called "hysterical," Martin publicly accused me of disciplinary violations, referred his accusations to the grievance committees of both the United States District Court for the Southern District of New York and the New York State Supreme Court, Appellate Division, First Department, and ordered me to show cause why I should not be sanctioned under Rule 11 of the Federal Rules of Civil Procedure. I was ordered to submit papers by October 14. The hearing date of the Order to Show Cause was October 21.
With the issuance of Judge Martin's Memorandum Opinion and Order of September 23, there was still no evidence in the official record of the Groden case that we had, by way of my letter to the court dated July 8, offered to make an additional factual showing to defeat defendants' argument that the statements in their advertising campaign should be considered mere opinion. Thus, there was still no means for Mr. Groden to seek effective appellate review of Judge Martin's refusal to allow him to submit those proofs to defeat the grant of summary judgment. Technically, I could not have properly or permissibly advised the Second Circuit Court of Appeals that this had even occurred without "testifying" for my client dehors the record.
I resolved to seize the occasion of responding to Judge Martin's Order to Show Cause, and to submit to the record those proofs that he prevented me from submitting earlier to preclude summary judgment, or later in support of the Notice of Motion to Reconsider, etc., together with further proofs relating to the quotation used in the advertisement. We might not be able to require the Second Circuit to consider these materials, since they entered the record in post-judgment proceedings and Martin had shown no willingness to take cognizance of them, however, at least the materials would be in the record for the Second Circuit to see for themselves, instead of my asking them to use their imagination.
Friday, October 14, 1994, I served and filed with Martin's chambers a set of papers and a videotape cassette of exhibits in response to the Order to Show Cause.9 An additional set was filed with the Clerk of the Court the following week. Demonstrating the good faith and substantive factual bases for plaintiff's Motion, I included in these papers and the videotape cassette the nature and kind of showing I would have made upon the Motion to Reconsider, etc., but which Judge John Martin prevented me from making.
During Mr. Groden's subsequent appeal to the U.S. Court of Appeals for the Second Circuit, this evidence was included in the Joint Appendix and record on appeal.
Thursday afternoon, October 20, I served, and Friday morning, October 21, I filed on behalf of Mr. Groden a Motion pursuant to 28 U.S.C. ß 144. On this second disqualification motion, Judge Martin would have yet another chance to reconsider and either amend or affirm his previous findings.
Friday afternoon, October 21, I appeared with Mr. Groden and his wife in court. The transcript, a copy of which Judge Martin later sent to the Grievance Committee of the Southern District court, which included Judge Sotomayor, shows that, while I referred more than once to Martin's refusal to allow me to support the September 1 Notice of Motion, neither he nor defendants' counsel contradicted that assertion in any way. (See Attachment No. 4.)
The transcript of that hearing also shows that Judge Martin made no comment respecting the materials I submitted to his chambers one week earlier.
By order entered December 5, 1994, Judge Martin denied the second recusal motion.
John Martin had no less than four separate and distinct opportunities to calmly and dispassionately assess Mr. Groden's good faith showing; after summarily dismissing his original and Amended Complaint, Martin's option of vacating his judgment, at the very least to reconsider or amend his purported findings, subsisted to December 5, 1994, the day he filed his last substantive Memorandum Order in this case. The extended post-judgment proceedings etched a clear portrait of Martin's repeated refusal to allow Mr. Groden a fair opportunity to be heard so that his conduct cannot be attributed to mere mistake or abuse of discretion.
Evidence That More Than One Gunman Assassinated President Kennedy
For readers with no interest at all in the subject of President Kennedy's murder, the governing purpose of this section is to compare and contrast the Milkovich issue as it was raised and discussed by Judge Martin and his law school classmate, Victor A. Kovner, Esq., in the U.S. District Court for the Southern District of New York with the body of relevant, competent and admissible evidence, including medical expert affidavits and exhibits, photographs and films, scientific analysis of those films, eyewitnesses and earwitness statements, and official government documents that we submitted to the official record of Mr. Groden's lawsuit, bearing in mind that the judge had precluded us at the outset from taking any discovery. That evidence included the following:
- An affidavit (JA 213-223) with accompanying illustrated exhibits (JA 224-235) from Dr. Randolph H. Robertson, M.D., the first board-certified diagnostic radiologist in private practice to have been afforded access to original X-rays and photographs from the Kennedy autopsy;
- An affidavit from Dr. Cyril H. Wecht, M.D., J.D., then the Coroner Of Allegheny County (Pittsburgh), and one of the most experienced and respected forensic pathologists in the world, Dr. Wecht accompanied Dr. Robertson on the last of his four examinations at the National Archives, so that Robertson could explain his findings to Wecht with the benefit of the original materiais arrayed before them. Dr. Wecht has been there before, but he is not a specialist in radiology. He concluded that his earlier stated opinion of this matter was erroneous and concurred in Dr. Robertson's findings.
- Authentication of the autopsy x-rays through the sworn testimony and expert report of a reknown forensic odontologist, Dr. Lowell Levine, D.D.S. (JA 252);
- An Affidavit of Francis X. O'Neill, Jr., dated November 8, 1978 (JA 266). O'Neill was an FBI agent who witnessed the Kennedy autopsy;
- Hand drawings by Francis X. O'Neill, Jr., attested and witnessed (JA 280-281), and illustrating his observation of the gunshot wounds sustained by President Kennedy;
- A true copy of the official form FD-302 report by FBI Special Agents Francis X. O'Neill, Jr. and James W. Sibert, another eyewitness to the autopsy, dated November 26, 1963;
- A hand drawing by another autopsy eyewitnesses, Richard A. Lipsey, attested and witnessed (JA 280), depicting the wounds to President Kennedy;
- A hand drawing by Secret Service Agent Roy H. Kellerman attested and witnessed by staff counsel of House Select Committee on Assassinations (JA 279). Kellerman was one of the two Secret Service Agents who rode in the front bench seat of the presidential limousine during the assassination, and who both attended the autopsy;
- Extracts of sworn testimony before the Warren Commission of Roy H. Kellerman (JA 286), and
William Greer, Special Agent, Secret Service, who drove the death limousine and also attended the autopsy (JA 291);
- Official contemporaneous signed statements of Secret Service Special Agent of the White House Detail, George W. Hickey, Jr. (JA 294). Hickey was riding in the Secret Service follow-up car immediately behind the presidential limousine, and witnessed the assassination;
- The affidavit of plaintiff Robert J. Groden, a photooptical technician and an expert on the film and photographic evidence in the Kennedy assassination who was retained as such by the House of Representatives Select Committee on Assassinations, dated October 12, 1994 (JA 236);
- Video Exhibits (in a videotape cassette enclosed in an envelope attached to Document 19) including:
- Detailed blow-ups from the Zapruder film of the assassination (Exh 2-5, 10, 11);
- Details from the Orville Nix film of the assassination (Video Ex 9, 11)
- Statements by journalists Robert MacNeil (Ex 6), an earwitness to the assassination, and Mary Woodward (Video Ex 7), an eyewitness;
- Statement by Bobby Hargis, the Dallas motorcycle policeman who was riding to the immediate left-rear of the presidential limousine at the time of the assassination (Video Ex 12);
- Interviews with assassination eyewitnesses Marilyn Willis (Video Ex 18) and Malcolm Summers (Video Ex 19);
- Interviews with the Parkland Hospital doctors who attempted to rescuscitate Kennedy (Video Ex 14-16);
- An interview with former FBI agent O'Neill (Video Ex 17); and
- Other narrative and visual material placing the evidence into appropriate background and context;
- Portions of the technical analysis of the Zapruder film by the photo-analytical consulting firm, Itek Corporation (JA 297); and
- Warren Commission Exhibit No. 387, the official autopsy protocol re John F. Kennedy (JA 283).
Competent medical and scientific evidence, corroborated by eye- and ear witness accounts of the assassination, showed that President Kennedy sustained two separate missile impacts to his head, instead of one as originally reported by the Warren Commission. This meant that at least four shots were fired during the assassination, as opposed to the alleged maximum of three shots from Oswald's alleged weapon. Further, the two head shots occurred within such a minute interval of time as to physically preclude their having been inflicted by only one gunman using any weapon then available; the minimum time to operate the bolt-action mechanism of Oswald's alleged weapon, as repeatedly tested by law enforcement agencies and experts, is far greater than the interval between the two separate hits. [JA 416] A digital enhancement of the Zapruder film demonstrated two separate and distinct impacts to the head, and this was also corroborated by measurements of the acceleration and velocity of the president's movements as performed by photometric specialists at the Itek Corporation.
The first shot to strike the President's head came from behind the limousine in which he was riding. The available evidence is somewhat more equivocal regarding the directionality of the second strike, however, it affirmatively supports the conclusion that the second shot also came from behind the limousine.
The sworn statements of trained law enforcement eyewitnesses to the President's autopsy [JA 266 - 283, 286 - 293] corroborate the autopsy pathologists' contemporaneous bench drawing [JA 226-27], their official autopsy report [JA 283], and schematic representations that they later prepared for the Warren Commission [JA 232] (the commission decided not to receive the X-rays and photographs into their record) in their location of one head wound. Expert evaluation of the autopsy x-rays and photographs confirm that wound location, but establish in addition the existence of a second, separate wound to the head. [JA 213ff.] (A panel of physicians appointed by then Attorney General Ramsey Clark in 1968 noted the second wound but overlooked evidence of the first, and conjectured that the autopsy pathologists had been mistaken by a factor of four inches in their location of a bullet's entry.) A digital enhancement of the Zapruder film demonstrates two separate and distinct impacts to the President's head. [VIDEO EXHIBITS 3, 4, & 5] That the effects of two distinct impacts are obvious only when the resolution of the film is enhanced and it is viewed in stop motion is corroborated by measurements of the acceleration and velocity of the head during the relevant Zapruder frames, as performed by photometric specialists at the Itek Corporation. [JA 297, see also Groden Affidavit at JA 236] Fragments of skull and brain tissue are seen to eject forward at the moment of the first impact. In another filmed view of the shooting taken by Orville Nix, a major fragment is seen to fly rearward at the moment of the second impact. [VIDEO EXHIBIT 9] At that point, contrary to what we were all led to believe many years ago, the president's wife, far from attempting to escape the limousine, frantically retrieved that fragment. [VIDEO EXHIBITS 10,11] Radiological findings further confirm what the film unequivocally portrays at frames Z315-316, the elevation of the scalp in the rear of the President's head at the time of the second impact [See, generally, Robertson Affidavit at JA 213 and Wecht at 382].
Earwitnesses to the assassination heard a "double-bang" at the time the President sustained his head wounds. [JA 286 - 296; VIDEO EXHIBITS 6,7, & 8]
Although some of the witnesses interviewed on film were not formally qualified under oath, all of them were alive and available to testify or to be deposed.
The synergistic relationship between these independent sources of data hardly merits extended discussion: The medical evidence describes what the motion picture films portray; the mathematical evidence measures what the eye perceives; and both the autopsy and the film evidence propose what the closest witnesses to the assassination actually heard. Juries decide matters of historical fact on the basis of such evidence every day. The apologists, including Posner, merely speculate that a neuromuscular spasm or "reverse jet effect" occurred. The evidence, however, affirmatively proves two shots to the head.
With only three weeks to put this material together, I believe that I established a serious issue warranting a hearing and/or trial.10
Interestingly, at no point during the district or appellate court litigation did either the district court judge or the defendants ever advert to the plaintiff's initial offer to make an evidentiary showing, or to our actual submission of the evidence during post-judgment proceedings.
The Groden case marked a turning point in the history of the controversy over President Kennedy's assassination. Until then, the federal government, its minions, and its sycophants could boast that, despite all their sniping, the critics of the Warren Commission had never been able to produce any credible, affirmative evidence that more than one gunman was responsible for the crime. The Posner Case Closed phenomenon was to put a cap on the case, marginalize the critics, and allow organized society to carry on, at least for the foreseeable future. What neither the Warren Commission's apologists (including Posner) nor the critics could anticipate, however, was that the emergence of a coherent and cohesive body of evidence forcing the conclusion that at least one or two additional assassns may have escaped would mandate a drastically different tact by the established order. Now, instead of championing "one man, one gun, one inescapable conclusion," there would no longer be any conclusion: They would simply throw Posner's book into the dustbin of history together with all the rest, and let those dwindling numbers who were still absorbed by the subject argue among themselves on the Internet.
If the courts assume to legislate a community norm for discussion of this subject, e.g., by declaring that it is all a matter of taste and not conducive to the application of rational processes for settlement of the dispute – in other words, once confrontation according to the rules of evidence and logic is decreed unnecessary – then they bring themselves into conflict with their own institutional nature and the freedom of advocacy.
Judge Jon O. Newman (Earl Warren's Former Law Clerk) Covers Up
Mr. Groden filed a complaint of misconduct against Judge Martin with the Judicial Council for the Second Circuit on or about November 4, 1994.11 It was denied by then Chief Judge Jon O. Newman, who subsequently reserved Mr. Groden's appeal in the Random House case for himself, presided, and wrote the opinion affirming the judgment of dismissal. Judge Newman was the late Chief Justice Earl Warren's senior law clerk (1956-57).
It is a bitter irony that, while serving as Chairman of President Johnson's Commission to Investigate the Assassination of President Kennedy, Earl Warren refused to receive the vital evidence pertaining to President Kennedy's autopsy that we attempted to get Judge Martin to review thirty years later; that Martin deliberately refused to look at it; and that Warren's former senior law clerk, Jon Newman, had it in his record-on-appeal, yet chose to cover up for Martin's actions. Here is how he did it:
"In any event, Groden had ample opportunity to present evidence outside the pleadings, and in fact he did so, submitting affidavits, Warren Commission testimony, and technical data concerning the Kennedy assassination."
Newman falsely declared that the district court had allowed us to submit our evidence, and even implied that Judge Martin had given it due consideration! Newman, who had the full record in front of him, kept from his readers that the defendants raised a new issue at the last minute, but that Martin refused to receive evidence going to that issue and, in fact, tried to prevent us from submitting it into the record of the case.
"The District Court ... rejected the Lanham Act claims because appellant had failed to present facts supporting his claims of false advertising . . ."
He did not mention my July 8, 1994 letter to Martin.
"In this case, Groden had sufficient notice that appellees' motion might be converted and a sufficient opportunity to present any evidence relevant to the resolution of the action."
"Initially, it is doubtful that the District Court acted sua sponte, as Groden contends, since the motion before the Court explicitly sought summary judgment as an alternate form of relief to a Rule 12(b) (6) dismissal."
In other words, according to Newman, the judgment filed in the official court record stating that Martin had converted the defendants' Motion on his own initiative was a false instrument, and Groden was a liar.
Newman passed over the amendment of Mr. Groden's Complaint to claim that more than one gunman killed President Kennedy as nothing but "... a new substantive paragraph clarifying the Lanham Act claim."
"Appellant thereafter moved for reconsideration of the dismissal ruling and for recusal of the District Judge. Judge Martin denied rehearing and dismissed the amended complaint, concluding that nothing new had been alleged. The recusal motion was denied for lack of any factual basis."
Demonstrating an intricate capacity for denial, deflection, and distortion, Newman clearly implied that Groden's Motion had been fully litigated; in truth, Martin never held a motion conference and would not permit me to submit papers or argue the Motion.
Finally, in his Opinion dated July 28, 1995, Judge Newman divined "[Groden's] real interest in filing this lawsuit – an attempt to use a district court trial as a forum for ascertaining the facts concerning the Kennedy assassination." Groden v. Random House, Inc., et al., 61 F.3d 1045 (2d Cir. 1995)
Quite the opposite, these judges had something they wished to say about how they felt about the Kennedy assassination controversy, and the efficacy of Bob Groden's calling, and they were not about to let evidence, or even argument, stand in the way of their pompous pronouncements.
Newman did more than make himself an accessory to the deceit by the district court; he embellished and improved upon it.
What Did Sonia Sotomayor Know, and When Did She Know It?
The Hon. Sonia Sotomayor was a Judge of the United States District Court for the Southern District of New York and a member of its Committee on Grievances. Indeed, the record of the disciplinary proceeding reflects that Judge Sotomayer was one of the original recipients of a September 27, 1994 internal court memorandum that Judge John Martin wrote to his colleagues complaining against me. Judge Sotomayer is now a member of the United States Court of Appeals for the Second Circuit.
This is not a case where the author of a judicial opinion has fallen victim to a deceit foisted upon her by her own judicial brethren. Sotomayor was all too familiar with the facts of the Groden case.
The Committee on Grievances reviewed and deliberated upon an uncontested record consisting of documents that were submitted by both the Committee's counsel and me. These included virtually the entire contents of the District Court's and Second Circuit Court of Appeals' files from the Groden v. Random House, Inc., et al., litigation. The District Court, both in its final disbarment order and while defending itself from an appeal, represented that it conducted a de novo review of these submissions, which means that it did not simply rely on briefs or selected excerpts of the record, but reviewed all the evidence submitted in the matter.
During the Groden litigation in the District Court
Of particular interest is a contemporaneous fax by the Grievance Committee of the full transcript of my appearance in front of Judge John Martin on October 21, 1994. (See Attachment No. 4.) (The fax header identifies the Committee Chair, Judge Robert P. Patterson, Jr., as a recipient.) Besides indicating that the Committee was secretly monitoring the Groden post-judgment proceedings, this transcript records me referring repeatedly to Martin's refusal to allow me to submit papers in support of, or to or orally argue, the September 1 Notice of Motion, and it further reflects that neither Martin nor defendants' counsel contradicted that assertion in any way.
Thus, months before Newman wrote his appellate affirmance of Martin's dismissal of the case, Sotomayor and her colleagues knew that (a) both sides in the Groden litigation had requested a pre-motion conference; (b) Martin had refused to hold one; (c) Martin had instead denied me the opportunity to submit supporting affidavits, appurtenant exhibits, and a Memorandum of Law; and (d) had denied me any opportunity to argue the Motion.
Besides having this faxed transcript in their hands even as the Groden post-judgment litigation continued, Ms. Sotomayor and the Committee on Grievances had the same transcript in the Joint Appendix to Groden's appeal, which was among the many documentary materials submitted to them in the subsequent disciplinary proceeding. Both in my appellate briefs and in my submissions to the Grievance Committee, I repeatedly emphasized Martin's obstructionist conduct. Thus, upon their de novo review of the evidence and briefs, Judge Sotomayor and her colleagues had full notice and knowledge of what had occurred.
Following the appeal in Groden to the Second Circuit
On December 18, 1995, the widely-circulated official newspaper of the law profession in New York City, The New York Law Journal, published a full column-length letter by me, replying to an earlier article about the Groden case. (See Attachment No. 5.) Besides its publication in the newspaper, I later included a copy of this letter in my later submissions to the Grievance Committee. Here is a relevant excerpt:
"For the first time in history. substantial relevant, competent and admlssible evidence was presented to a court of law through the affidavits of medlcal experts, official government documents (including eye- and earwitness accounts), and nearly two dozen film exhibits on videocassette to support Mr. Groden's contention that President John F. Kennedy was shot by at least two gunmen, and that the defendants' advertising campaign was literally and explicitly false, disparaging, and anticompetitive. Initially, notwithstanding our written offer of proof, the district judge refused to allow us to submit this material in opposition to the defendants' motion to dismiss under Rule 12(b)(6) or, in the alternative, for summary judgment."
(Respondent's Exhibit 9, Letter to the Editor, "Additional Comment on Lanham Act Suit," The New York Law Journal, December 18, 1995), In the Matter of Roger Bruce Feinman, S.D.N.Y.(Docket No. M-2-238).
Besides having access to the entire record, it is indisputable that Ms. Sotomayor and her colleagues actually reviewed and examined it.
De Novo Review of the Evidence
The Committee on Grievances retained an attorney, Steven C. Krane, Esq., to defend it against my appeal from its disbarment order to the U.S. Court of Appeals. In Mr. Krane's appellate brief and oral advocacy before that Court, he asserted both in writing and orally on behalf of the Committee on Grievances that the entire Committee had actually reviewed and examined the evidence before issuing its Order.
In his "Brief for the Appellee," Mr. Krane asserted: The district court "examined the evidence (including that submitted by Mr. Feinman) and made its Order."12
The district court conducted a "de novo review of the panel's findings."13
According to the Second Circuit Court of Appeals' audio recording of Mr. Krane's appearance on July 17, 1998, the following colloquy occurred between the presiding member of the Court, Judge José Cabranes, and Mr. Krane:
"BY THE COURT: Judge Patterson's Order is on behalf of the Committee –
KRANE: Yes, it is.
THE COURT: – on behalf of the committee of six district judges?
MR. KRANE: Yes it is. The Findings and Recommendations were reviewed by all six judges, and Judge Patterson signed the Order as Chair at-the time of the Committee on Grievances.
Audio tape of proceedings held by the United States Court of Appeals for the Second Circuit, Matter of Roger Bruce Feinman, Docket No. 97-6064 (July 17, 1998) (on file with Calendar Clerk, Tape #278).
Upon information and belief, when Mr. Krane appeared before the Second Circuit Court, he acted within the scope of his representation, with full authority as an attorney on behalf of the Committee on Grievances. Accordingly, both his written and oral assertions before that Court bind the Committee as having been made by their agent, at their behest, and with their knowledge, consent, and full blessing.
The evidence, and the conclusions that logically flow from that evidence, are therefore inescapable: Sonia Sotomayor was fully apprised and aware that Jon O. Newman filed a false account of the Groden case in his Opinion affirming the judgment of the District Court dismissing Mr. Groden's case. She had the facts even before Newman published his Opinion. Nevertheless, she twice subscribed to that false account, first when she ratified the disbarment of Mr. Groden's attorney, and later, when she cited and promoted Newman's Opinion in the Groden case.
The Deleterious Effect of Falsifying Judicial Decisions
Lying may be entrenched in public and private life, but it has no place in judicial decisions.
A judicial opinion is an official act on which others rely. It decides a case and pronounces the law. A judge who decides a case without weighing one party's evidence is denying the possibility that evidence will sway him. Such a judge is unlikely to be a person of integrity.14
Writing an opinion without presenting a truthful account of the procedure or a meaningful account of one side's arguments is propaganda. A judge who sets out to write a decision in which he knowingly falsifies the procedural facts of the case to achieve a desired result is perforce a dishonest judge. He has filed a false instrument with the clerk of his own court. He has obstructed justice. An appellate judge who would cover-up for the wrongdoer, going so far as to applaud his action as "appropriate" in any sense of that word, would be little more than a common criminal disguised in judicial robes. The fact that a judge's recitation of the relevant facts in his decision cannot be trusted is crippling. Lawyers throughout the country rely on these written decisions in arguing their own clients' cases. Other judges in other state and federal courts rely on these decisions in deciding those other cases. Once it spreads through the literature (and the spread can be fairly rapid) the consequences of this kind of misrepresentation – this fiction – can be practically irreversible absent some dramatic countermeasures.
In the final analysis, this is not a question of "disagreeing" with the decisions of the Groden courts: One must disagree with them only in the same broad sense that one must condemn all forms of willful fraud and deceit. These judges did not make mistakes; what they did, they did knowingly, intentionally, and with malice. These judicial opinions were deliberately written with the purpose and intent of deceiving their audience. They falsify the facts of the Groden case. The inference that naturally flows from this falsification is that these Judges resorted to expedient lies to gain credibility and acceptance for decisions that could not otherwise stand up to scrutiny. They are obviously documents constructed to be used for polemical purposes. They have the smell of dead fish.
The Disciplinary Proceeding
In a post-judgment Memorandum Decision and Order issued on September 23, 1994, District Judge John S. Martin, Jr. publicly accused me of knowingly making false accusations against him on September 1, 1994, in the 28 U.S.C. ß 455(a) recusal branch of a bare Notice of Motion to reconsider his dismissal of Mr. Groden's complaint, and next in a letter dated September 19, 1994, that I wrote to Judge Royce C. Lamberth of the District Court for the District of Columbia. There were five recusal allegations in the motion and Judge Martin refused to comment on two of them. He also refused to allow me to support, litigate, or argue any of them.
In that letter, I referred to Martin's "crooked and corrupt decision in our case." I have never seen any reason or need to retract or apologize for that characterization.
Notwithstanding Judge Martin's representation that he was referring his complaint to the Disciplinary Committee of the Supreme Court of the State of New York, Appellate Division, First Department, no complaint was referred to that or other state court authorities. Instead, he sent his complaint against me to each individual member of the federal district court's own Committee on Grievances, including Judge Sotomayor, then he continued to preside over post-judgment proceedings in Groden until mid-January 1995. All the while, he apparently funneled Groden suit papers to the Committee on Grievances.
From that point, Ms. Sotomayor and her colleagues lay in wait, detained any disciplinary action, and did not even notify me that they were coming after me – not until after the Second Circuit affirmed Judge Martin's dismissal of Mr. Groden's case, and after Groden's alternate appellate remedies had expired.
So, I argued Mr. Groden's case to the Second Circuit without full knowledge of the Grievance Committee's actions and future plans. Had those been timely revealed and all the facts then been known, it is a fair assumption that Mr. Groden's appeal would have been argued differently, and possibly by another attorney. In effect, the Southern District's Grievance Committee became a silent party to the Groden litigation.
There is no justification in principle for using disciplinary charges as a delayed action fuse. Serious allegations of ethical violations, if meritorious, should neither be detained nor reserved for the time and forum most advantageous or convenient to a complaining judge and his judicial colleagues. The Grievance Committee never deigned to explain the delay, either in notification of the charges or the activation of the actual disciplinary proceeding.
The Southern District court's disciplinary procedures, which were thoroughly revised within weeks after my disbarment, had clearly contemplated proceedings that were merely reciprocal or derivative of state court and state bar association disciplinary matters. They did not permit an attorney accused of professional misconduct to compel either the testimony of non-cooperative witnesses or the production of documents not under his control. I declined to appear before a court-appointed panel of attorneys in private practice, objecting to the panel mechanism upon Article III and Appointments Clause constitutional grounds. There was no evidentiary hearing in the disciplinary matter.
Additionally, the structure of the federal district court does not allow one judge to rule directly on the legality of another judge's judicial acts or to deny another district judge his or her 1awful jurisdiction. This, plus the employment of "law of the case," inter-panel accord, or presumption of regularity principles, effectively precluded me from challenging any aspect of the trial and appellate court rulings in Mr. Groden's case. Indeed, the attorney advisory panel appears to have relied solely upon Judge Newman's Opinion and affirmance of Judge Martin's judgment in Groden as the basis for determining that I made false accusations against Judge Martin.
The Grievance Committee placed the advisory panel under extraordinary pressure. Whenever I provided extensive submissions in response to the charges, they were amended expansively with new charges, until I ceased answering altogether. Under the original charges of alleged disciplinary violations, the panel was unable to adduce a shred of relevant, competent, or admissible evidence of knowing or reckless falsehood under DR 8-102(A) on any of the stated counts. They were forced to resort to other theories of professional misconduct.
Nevertheless, despite the extraordinary and clearly improper pressure exerted upon the panel, they completely exonerated me of two complaints that Judge Martin had emphasized in his public denunciation of September 23, 1994, and concluded that my first motion for his recusal – on the grounds of Martin's past ties to potential witnesses in Mr. Groden's case – had sufficient factual bases.
Immobilized by the incontrovertible documentary evidence of a judicial deceit, the panel was then reduced to the silliness of employing their brilliant and expensive prose to express their theory of what constitutes felicitous writing. Having found that it was ethically permissible for me to seek Martin's disqualification for bias on certain grounds, the attorney advisory panel launched against my alleged rhetorical inferiority with an orgy of self-congratulation. They proposed to disbar me for want of style, taste and discernment.
For example, if I called Martin's disposition of the Groden case and his intemperate Memorandum Opinion of September 23, 1994, "more the products of ill will than honest intellectual inquiry," then my bourgeois plain-spokenness, sniffed these polished and refined partners from the vaunted elite law firms, grated on their sensitive ears and offended their delicate tastes.
I was accused essentially of failing to maintain proper decorum, as though I were a mere spectator at a football game who impulsively ran onto the field to run interference for my home team's wide receiver and had to be ejected from the stadium.
The disciplinary process had no other purpose than to defame and discredit me; to defuse my justifiable criticism of the judges involved in Mr. Groden's matter; and to protect their reputations. It's goal was to hermetically seal judicial lies perpetrated against a litigant, his attorney, the press, the Bar, the general public, and other courts. A strong indication of the urgent, imperative nature of this goal was that, despite the lack of any interpersonal contact between the Committee on Grievances or its advisory panel and me, I was precluded from ever applying for reinstatement as an attorney without producing "a psychiatric evaluation stating that Mr. Feinman is in good health." In other words, they had no means through which to attack the credibility of my dissection of this judicial fraud, and it was apparently a struggle for them to impeach my sanity as well, albeit they gave it their best shot. Shades of "re-education" in the former Soviet Union and Communist China.
The Culture of Collegiality
One judge lies; the others swear by it.
That is the sum and substance of the problem facing the Judiciary Committee and full Senate in the matter of the Sotomayor nomination.
There is a culture of collegiality among the incumbents of the Second Judicial Circuit, grounded in the general motive to preserve and continue their future relations and interaction, both formal and informal. Although their tenure is constitutionally guaranteed, from a practical standpoint, they must rely upon one another's cooperation. However, when this culture of collegiality – this community of interest that the federal judiciary has created – encapsulates a closing of the ranks behind two judges without any regard to whether the facts supported their rulings – much like volunteering a passcard to enjoy their gated enclave – then what becomes of due process? Of Article III judicial independence?
In a form of emotional blackmail reminiscent of the children's fable about The Emperor's New Clothes, the judges who presided in the Groden matter made their colleagues their willing accomplices in order to avoid the social and political costs of exposing and condemning their deceits. They counted on the decisive role being played, not by facts, evidence or law, but by cherished beliefs and comforting assumptions about the honesty, integrity and good faith of judicial officers and the common interests they supposedly share. It is clear that Sonia Sotomayor followed and complied.
Despite her strong familiarity with the Groden matter and subsequent disciplinary proceeding as a district court judge, she nevertheless cited to Newman's opinion in the Groden case as an appellate judge, as though it related the true facts. She knew what had happened. She knew that she was promoting a false and fraudulent account of the procedural facts in Groden. She could have washed her hands of the fraud, and refrained from giving it practically her support. Instead, she kept silent; she went along. She put her colleagues' reputational interests ahead of repudiating false and fraudulent judicial misrepresentations.
Covering up must be seen for what it is: taking on a shared responsibility for her colleagues' malfeasance.15
If, while sitting as both a district court and a circuit court judge, Sotomayor would not expose her colleagues' manipulation or disregard of the facts in Bob Groden's matter, can she be trusted to perform the role of a principled legal decision-maker?
It is not merely her truthfulness; the issue is her willingness and backbone to transcend twenty years of acculturation as a member of the federal judiciary – including the personality cult surrounding that master of mythology, Jon O. Newman – and to stand up to expose a wrong committed in her presence and with her approval. It is her ability to think and act in an independent manner, paying no special deference to her colleagues. It is her ability to withstand the stress of going it alone.
The collegiality problem in the Second Circuit has previously reared its head in slightly different form, when Senator Bob Dole and former New York City Mayor Rudy Giuliani, among others, repeatedly criticized Judge Harold Baer, Jr., also of the U.S. District Court for the Southern District of New York, and accused him of harboring a prejudice and bias that infected his decision in a drug case.16 In the case of Carol Bayless, Baer suppressed 80 pounds of cocaine and heroin, with a street value of $4 million dollars, found in the back of a rental car with out-of-state license tags, at 5:00 a.m., after police officers observed four men loading duffel bags into the trunk of the car, and after at least one of the men fled upon seeing the police. Judge Baer incorporated into his decision on that search-and-seizure problem a personal stereotype he had about what the white police and the black street denizens of Harlem were like, and how they were prone to behave. He let that stereotype infiltrate his reasoning and judgment, and he apparently did this without having heard all of the available evidence. Because he allowed his personal and highly prejudicial generalization of life on the streets of Harlem to invade his evaluation of the issue before him, Judge Baer effectively precluded the prosecution from bringing out the truth at the trial of the matter.
For a very brief while, the obsequious and sycophantic letter-writing, editorializing, and speechmaking hierarchy of the law profession found in Harold Baer a cause as convenient to their political agendas as it befit their unctuous sanctimony. Although Baer later admitted he had made a mistake, that was not before a tremendous public furor erupted over criticism of the judiciary as posing a grave threat to the foundations of the country. Leaders of the bench and bar rushed to publish articles condemning the criticism of judges. They stood reflexively together to defend a judge under attack, even though he had committed a grave error.
Amid that frenzy of adulation for the federal judiciary from the vaunted dignitaries of the Bar, on March 28, 1996, four senior judges of the Second Circuit injected themselves into the public debate over the boundaries of criticism directed against federal judges by issuing what one major newspaper called an "extraordinary public statement"17 brazenly condemning criticism of federal judges. Perhaps not so coincidentally, just eight months earlier, two of the judges (Newman and Feinberg) had upheld John Martin's rulings in the Groden matter. Although criticism of Baer posed no realistic threat to the judiciary, such attacks, they pontificated, "threaten to weaken the constitutional structure of this nation." Embellishing their sanctimonious demagoguery, they said,
"Attacks on a judge risk inhibition of all judges as they conscientiously endeavor to discharge their constitutional responsibilities."18
How did the attacks upon one threaten all? The high priests did not deign to explain.
The judges apparently felt so strongly about the need for them to defend judges against attack that they deemed it "overriding" of the Code of Conduct for United States Judges.
The hallmark of the Groden case, and the related disciplinary proceedings that followed it, is that, between all the federal district and appellate court proceedings, eleven district judges and a "baker's dozen" of Second Circuit judges were exposed to the full Groden record, whose pertinent aspects were highlighted in the numerous briefs, motions, and petitions that I filed from 1994 through 2000. There wasn't a single whistleblower concerning Groden's attempts to meet the Martin-Kovner argument with a showing of evidence, or the lies that covered up his thwarted efforts. Not one, including Sotomayor, deemed the denial of Groden's basic, unquestionable procedural and due process rights worthy of mention – not even in an obscure footnote. Not a single judge raised his or her voice in protest against the perversion of the judicial process. They were more concerned with their institutional priority of upholding the reputation of the federal judiciary than with a plain, ordinary citizen's simple claim to due process – the right to present his evidence and arguments in court, and to have them weighed before losing his legal rights and more. They stood as one to protect the church of the federal judiciary in preference to exposing a rank and odious injustice. Like John Martin's "actual facts" or Jon Newman's "true facts" of President Kennedy's death, the plain facts of Mr. Groden's case lie buried beneath a small avalanche of glib citations, including that endorsed by Ms. Sotomayor during her own federal tenure.
Nonetheless, it is Sotomayor, not her colleagues in the Second Judicial Circuit, who now stands for elevation to the nation's court of last resort. And that is what casts her conduct in such a worrisome light. Can a judge who was willing to lend herself to a judicial lie – an outright fraud perpetrated upon a litigant, the organized Bar, the press, the public, and the courts of other jurisdictions – be trusted to sit on a court from which no further appeal can ever be taken? This is a question too critical to be left in the hands of lawyers and judges. For the sake of our democracy, it must be answered by the people themselves and their representatives in the United States Senate. Therefore, Professor Feldman's cautionary notes merit at least a brief pause at the sound of the two-minute warning in this game. For all must understand that federal judges enjoy life tenure, and that the next Associate Justice of the Supreme Court may enjoy a tenure lasting as long as 35 years. Assuming his re-election, Mr. Obama's maximum tenure is eight years, nevertheless, the rest of us will live with his choice for decades to come. The stakes could not be higher.
Jon O. Newman continues to hear a reduced appellate caseload as a senior judge of the United States Court of Appeals for the Second Circuit.
Although she has sat with Newman on dozens of appellate panels since she ascended to that Court nine years ago, the number of dissents from his opinions that Sonia Sotomayor has filed may be counted on the fingers of one hand.
The Honorable John S. Martin, Jr., having failed to advance to the Second Circuit Court of Appeals or the Supreme Court of the United States, eventually became dissatisfied as a federal district judge and decided that his time was actually worth far more than a public servant's salary – as much as $1,000 per hour, or so he proclaimed to the trade press – so he resigned from the federal bench in 2003 and returned to the private practice of law. Although he attempted to cloak his retirement from the judiciary as a "resignation in protest" against the harshness of federal sentencing guidelines, such noble pretensions contrasted starkly with his imposition of perhaps the cruelest and most unusual criminal sentence in United States history, condemning Luis Felipe, leader of the Almighty Latin King & Queens Nation, to a living death – life plus 45 years in solitary confinement, to be served incommunicado, i.e., without visitation, and completely isolated from all except his lawyer.
Martin continues to practice law in a private partnership on Fifth Avenue in New York City.
Due to the deaths of key witnesses during the intervening years since the Groden lawsuit, Martin was, and will likely remain, the only federal trial court judge in history who – at his own instigation, it bears emphasis in bold – was ever presented with a body of relevant, competent, and admissible evidence (medical, scientific, eyewitness. earwitness, photographic and motion picture) that two gunmen shot President Kennedy, but who turned aside and refused to even look at it, not less than four times.
1. Although not identified in the ad campaign, the quote came from a 1989 book called High Treason, the product of two men, Mr. Groden and Harrison E. Livingstone. That book contained separate copyright notices, Livingstone's clearly indicating that he owned the sole copyright to some of the work. [JA 68] Later paperback editions completely eliminated Mr. Groden's copyright interest. [JA 300] During litigation in the U.S. District Court of Random House's motion for summary judgment, conflicting evidence about the authorship and copyright ownership of High Treason was submitted, and there was no evidence in the record that Mr. Groden had ever held himself out to the public as co-author of the entire work, or that he had any control over the original publication and later revisions of the book.
2. Judge Martin's Individual Rules as then in force are reproduced in the Joint Appendix at 302-04. Groden v. Random House, Inc., et al., 61 F.3d 1045 (2d Cir. 1995)(Docket No. 94-9100).
3. Document No. 9, "Memorandum of Law in Support of Defendants' Motion to Dismiss For Failure to State a Claim or, in the alternative, for Summary Judgment," Groden v. Random House, Inc., et al., 1994 WL 45555, 1994 U.S. Dist. LEXIS 11794, 32 U.S.P.Q.2d 1266, 1994-2 Trade Cas. P70,702, 22 Media L. Rep. 2257 (S.D.N.Y. Aug. 23, 19941 (No. 94-Civ. 1074).
4. Although Martin had extensive and longstanding personal and professional ties with the Department of Justice (as Assistant Solicitor General he participated in the extradition of James Earl Ray following the assassination of Dr. Martin Luther King, Jr.; as U.S. Attorney in Manhattan he prosecuted members of the Weather Underground; and he had previously employed the in-house lawyer for Random House who was supervising both the Groden litigation and a parallel lawsuit brought by Mark Lane in the District of Columbia), during the Groden litigation Martin seemed more impressed by the "old school" ties he shared with the defendants' lead outside counsel, his Columbia Law School classmate, Victor A. Kovner. Indeed, in a September 23, 1994, post-judgment Memorandum Order and Opinion, Martin called his connection to Kovner "a far more significant fact" in his dismissal of Groden's lawsuit than his Justice Department connections and experiences. Kovner was Bill Clinton's chief New York fundraiser, friend, confidant and, according to one newspaper columnist, a "judge maker". Kovner's wife, Sarah Schoenkopf Kovner, was Special Assistant to Clinton's Secretary of Health and Human Services, Donna E. Shalala. One of his law partners, Laura Handman, was the wife of Clinton's former White House Deputy Chief of Staff, Harold Ickes. The Kovners accompanied the Clintons to Israel during the Groden litigation, although their role in Mideast diplomacy was never clarified. While Kovner's motion to dismiss Groden's lawsuit was pending, he and Martin dined together at New York's Waldorf-Astoria Hotel, a fact they never disclosed to Mr. Groden's attorney.
5. That case holds that there is no first amendment privilege for expressions of "opinion" per se, since such expressions often imply an assertion of objective fact. An allegedly libelous (hence, false and defamatory statement, is not protected under the first amendment if it states or implies assertions of fact which are provable as false. As Mr. Kovner correctly noted, therefore, the test, was "verifiability," or whether the statement was capable of being objectively characterized as true or false.
6. Murray Space Shoe Corp. v. FTC, 304 F.2d 270, 272 (2d Cir. 1962), citing United States v. Ninety-Five Barrels of Vinegar, 265 U.S. 438, 443 (1924) ("Deception may result from the use of statements not technically false or which may be literally true.").
7. Kovner's raising an important argument for the first time in a post-submission letter under the guise of a request for further briefing did not seem to trouble the District Court, neither did it trouble the Second Circuit Court of Appeals, as we'll see later.
8. (Joint Appendix at 177. Groden v. Random House, Inc., et al., 61 F.3d 1045 (2d Cir. 1995)(Docket No. 94-9100))
9. Joint Appendix 184-352. Groden v. Random House, Inc., 61 F.3d 1045 (2d Cir. 1995) (Docket No. 94-9100) and the videocassette enclosed in an envelope attached to Document 19, Groden v. Random House, Inc., et al., 1994 WL 45555, 1994 U.S. Dist. LEXIS 11794, 32 U.S.P.Q.2d 1266, 1994-2 Trade Cas. P70,702, 22 Media L. Rep. 2257 (S.D.N.Y. Aug. 23, 1994)(No. 94-Civ. 1074). (see also, Respondent's Exhibit 5 and the videocassette submitted to the U.S.D.C.-S.D.N.Y. Grievance Committee in Matter of Roger Bruce Feinman, Docket No. M-2-238.)
10. This case would have been for me to try, not Mr. Groden. Consistent with my duty to exercise independent judgment on behalf of my client, the evidentiary showing that we wished to make in opposition to summary judgment was entirely my work product and responsibility -- conceived, ordered and compiled by me based upon my own studies of the Kennedy assassination during the past 30 years, and Mr. Groden merely assisted me in editing a videocassette of exhibits; consulting with me about the contents of his affidavits; and reviewing and signing the affidavits that I drafted for him, adding a few of his own personal touches as he and I felt appropriate.
11. In re Charge of Judicial Misconduct, No. 94-8563 (Jud'l. Council of the 2nd Cir.).
12. Brief for the Appellee Committee on Grievances of the United States District Court for the Southern District of New York, dated July 10, 1998, at p. 13, U.S.C.A.2d (Docket No. 97-6064).
13. Id. at 21, n. 10.
14. Stephen L. Carter, Integrity. Basic Books, New York: 1995
15. Sissela Bok, "Lying: Moral Choice in Public and Private Life." Second Vintage Books Edition (1999) at 158.
16. See, e.g., The New York Daily News, Saturday, January 27, 1996, p. 5.
17. The New York Times, March 29, 1996, p. B1,4
18. Joint statement of Jon 0. Newman, J. Edward Lumbard, Wilfred Feinberg, and James L. Oakes, former chief judges of the United States Court of Appeals for the Second Circuit, March 28, 1996.