Saturday, February 26, 2011

Federal Thuggery: The Arrest and Harassment of 78-Year Old Fair Trial Activist Julian Heicklen

Heicklen being arrested in front of Federal court, NYC

To New York City Police and Federal Marshalls, judges:

C'mon, let's stop this nonsense!!!!! Now you are threatened by a 78-Year old grandfather?

Betsy Combier

Pamphleteer throwing a jury-tamper tantrum
Posted: 12:49 AM, February 26, 2011

A 78-year-old New Jersey granddad believes he is involved in "the defining trial of the decade" over a charge he illegally handed out pamphlets in front of the Manhattan federal courthouse.

Julian Heicklen, of Teaneck, was arraigned yesterday on a federal charge of jury tampering for handing out pamphlets urging jurors to ignore judges' instructions and vote their consciences.

Usually, arraignments take about five minutes. But Heicklen was so argumentative that his hearing before Judge Kimba Wood took about two hours.

"It's a witch hunt," Heicklen said of the case.

Vows "trial of the decade."

He believes in the libertarian idea of "jury nullification," which says jurors have an obligation to ignore a judge's legal instructions if they deem them incorrect.

"The real jury tamperers are the judges," he said. "The jury has the right to decide what the law is, as well as the facts."

Heicklen, who plans to represent himself in court, claims to have no idea whether his pamphlets reached jurors.

Julian Heicklen sprung from the Big House

June 9, 2010

Julian Heicklen, the well-known libertarian and rights advocate who was arrested on May 25 for distributing Fully Informed Jury Association (FIJA) literature on public property in front of the US District Courthouse in Manhattan was released from detention at Riker's Island where he was being held.

Late Tuesday evening Heicklen issued the following statement to his many supporters nationwide:

I was released from prison on June 8 at about 6:00 pm. The case against me has been dropped in the interest of justice.
My cell phone was confiscated, so I cannot access nor return any phone calls. Do not call me.
I have not read any e-mail lately, so I have not responded. It may take several days to read it all.
I am swamped with some personal items which must be attended. Once I get caught up, I will send progress reports and schedule of events again.

Yours in freedom—Julian.

Except for a witness, Heicklen had been distributing FIJA pamphlets alone when Federal Protection Services officer Clifford Barnes #245 placed him under arrest.

As he typically does when confronted with arrest, Heicklen lowered himself to the pavement and became unresponsive.

On past occasions the authorities called paramedics who transported him to a local hospital for psychiatric evaluation.

But this time, according to "Bile," the witness, officers brought out a wheelchair, lifted Heicklen into it, and rolled him into the courthouse.

According to the best accounts available, Heicklen was then turned over to the New York Police Department who transported him to the Bellevue Hospital Prison Ward. He was later sent to the New York City Department of Corrections where he was held in the North Infirmary Command at Riker's Island for 12 days.

The dismissal of misdemeanor resisting arrest and disorderly conduct charges is seen as proof by many of Heicklen's supporters that the arrest was unjustified in the first place

NY's "finest" manhandle, humiliate rights activist Heicklen,  June 15th, 2010 5:11 pm ET
"I was cuffed very tightly behind my back and dragged into the courthouse. It was painful, and the capillaries in my wrists were broken." –Julian Heicklen.

The manhandling, humiliation, and verbal abuse of 78-year-old Fully Informed Jury Association (FIJA) activist Julian Heicklen in the New York jail system is further described in detail in Heicklen's report to his Tyranny Fighters, posted in its entirety, as always, at "Blog of Bile."
His arrest was tweeted almost minute by minute by individualist writer Darian Worden and photographed by fellow libertarian and supporter Jim Babb.

"I believe that he was arrested for unpaid fines related to previous demonstrations," Jim Babb speculated. "They were fully prepared for his abduction. They had a warrant for his arrest."

"During this time, I did not move a muscle or make a sound, except once when they really inflicted pain, I moaned." - Julian Heicklen

Babb, who has been on many FIJA outreach excursions with Heicklen in the past, made his first trip into Manhattan with five other supporters, including young AJ Allen, the son of Dr James Allen who, Babb noted, "received an interesting lesson in federal thuggery."

"My pants kept falling down, since I had no belt. Finally, I was put into a wheelchair and taken to a paddy wagon to be delivered to Bellevue Hospital." – Julian Heicklen

Babb described the Manhattan federal courthouse with its "massive number of government agents, vehicles and barricades, surrounded by massive gothic structures" as dramatically different from others where he has helped distribute FIJA materials.

As they approached, Babb overheard one officer say, "This should be interesting."

"I was returned to the federal courthouse and put into a small cell facing the wall. By then I had to urinate badly, so I urinated on the floor. The guard came rushing in, said that if I did that again he would beat me into sh*t and break my bones." – Julian Heicklen

The six supporters remained outside of the immediate courthouse area to act as observers while Heicklen entered the courtyard.

At 12:20 pm Worden tweeted, "Suit said, ‘Mr. Heicklen, we’re US marshals and we have a warrant for your arrest.'"

"Julian's courage to keep coming back here is truly impressive," Babb said of Heicklen's continued returns to the Manhattan courthouse. "There is a black void here that can suck the love out of anyone."

Thursday, February 24, 2011

more Than 100 Law Professors Want Mandatory and Enforceable Ethics Rules for Supreme Court Justices

Law Profs Urge Ethics Rules for Supreme Court Justices

Judge Antonin Scalia
More than 100 law professors have signed on to a letter released today that proposes congressional hearings and legislation aimed at fashioning "mandatory and enforceable" ethics rules for Supreme Court justices for the first time. The effort, coordinated by the liberal Alliance for Justice, was triggered by "recent media reports," the letter said, apparently referring to stories of meetings and other potential conflicts of interest involving Justices Antonin Scalia and Clarence Thomas among others.

The professors note that the Court is not covered by the code of conduct that lower federal court judges are required to follow. The Supreme Court has long said it looks to the code for "guidance" -- a concession which, the signers agree, "has proved insufficient." The letter also points out disapprovingly that individual justices alone decide whether they should or should not recuse in a given case, not subject to review by anyone else, and with no requirement to explain their decisions. We delved into the recusal issue in a recent story in our newsletter Supreme Court Insider (subscription required.)

"Adherence to mandatory ethical rules by justices, and requiring transparent, reviewable recusal decisions that do not turn solely on the silent opinion of the challenged justice will reinforce the integrity and legitimacy of the Supreme Court," the letter asserted.

The professors directed their letter to the leaders of the Senate and House Judiciary Committees, with an eye toward hearings and legislation that would apply and enforce the code of conduct on Supreme Court justices, and impose rules for transparency and review of justices' recusal decisions.

In making their case, the professors invoked the Court's own language from the 2009 decision in Caperton v. A.T. Massey Coal Co., which disapproved of a state judge's refusal to step aside from a case that involved a major campaign donor. "Judicial integrity is," the Court said, "a state interest of the highest order."

Alliance for Justice president Nan Aron said her group became involved with the letter-writing effort after consulting with some legal ethics experts in the context of the growing controversy over meetings with conservative groups by Thomas and Scalia, as well as lobbying activities by Thomas's wife Virginia. "They were alarmed about what was happening," said Aron, so she agreed to "shepherd" the professors' letter through to fruition. "The time is overdue," Aron said, for new ethics rules for the high court.

Among the signers are leading names and experts on legal and judicial ethics, including Stanford Law School's Deborah Rhode, George Washington University Law School's Stephen Saltzburg and Alan Morrison, James Alfini of South Texas College of Law, Yale Law School's Lawrence Fox, Amanda Frost and Herman Schwartz of American University Washington College of Law, Northwestern University School of Law's Steven Lubet and Ellen Yaroshefsky of Benjamin N. Cardozo School of Law.

Notably absent, however, was Stephen Gillers of New York University School of Law, perhaps the best known legal ethics expert nationally. Asked about the letter today, Gillers said he agreed with most of it, but parted ways with the group over the recusal issue. Requiring justices to submit their recusal decisions for review by other justices, he said, could lead to "the appearance of opportunistic behavior" aimed at keeping a colleague on or off the case, and could spoil the Court's collegiality. Citing the current "highly politicized" debate over justices' ethics, Gillers also said he would rather that hearings and legislation take place "in a more neutral time."

Posted by Tony Mauro on February 24, 2011 at 01:31 PM in Politics and Government , Supreme Court

Is Justice Clarence Thomas Guilty of Felony Ethics Violations?

AllGov., Monday, February 14, 2011
Ginni Thomas

Justice Clarence Thomas has been required since he joined U.S. Supreme Court in 1991 to disclose the income of his wife—something he failed to do until a liberal advocacy group blew the whistle on his inaction. Thomas has insisted the reporting failure was merely “a misunderstanding of filing instructions.” But Common Cause and other organizations aren’t buying the excuse.

Common Cause President Bob Edgar said it was “difficult to believe” and “implausible” that Thomas, a 20-year member of the high court, didn’t know the law pertaining to disclosure. accused Thomas of receiving special treatment from the Judicial Conference of the U.S. Committee on Financial Disclosure by allowing him to file two decades worth of amendments to cover up for his breaking the law.

From 2003 to 2009, Thomas did not report more than $680,000 in income that his wife, Virginia Thomas, earned from working for The Heritage Foundation, a conservative think tank. He also did not reveal, until now, her earnings with the foundation during the period 1998-2003.

Thomas’ filing errors could result in a felony conviction if he were to be brought up on charges, according to

As far back as 1989, Thomas marked the “NONE” box for his spouse’s non-investment income on his judicial financial disclosure forms. On January 21, 2011, he filed amendments admitting that his disclosure forms were wrong.

Meanwhile, his wife continues to draw attention to herself with her conservative political activism, as “she is rebranding herself as a lobbyist and self-appointed ‘ambassador to the Tea Party movement,’” writes Eric Lichtblau in The New York Times. Her work raises the question whether Clarence Thomas can remain independent on matters before the Supreme Court that his wife has invested herself in. On the website of her new lobbying firm, Liberty Consulting, Inc., Ginni Thomas promises “to leverage her 30 years of experience as a Washington ‘insider’ to assist non-establishment ‘outsiders’ who share her belief in our core founding principles and values.”

-Noel Brinkerhoff

January 19, 2011

Advocacy Group Says Justices May Have Conflict in Campaign Finance Cases

WASHINGTON — When the conservative financier Charles Koch sent out invitations for a political retreat in Palm Springs later this month, he highlighted past appearances at the gathering of “notable leaders” like Justices Antonin Scalia and Clarence Thomas of the Supreme Court.

A leading liberal group is now trying to use that connection to argue that Mr. Scalia and Mr. Thomas should disqualify themselves from hearing campaign finance cases because they may be biased toward Mr. Koch, a billionaire who has been a major player in financing conservative causes.

The group, Common Cause, filed a petition with the Justice Department on Wednesday asking it to investigate whether Justices Antonin Scalia and Clarence Thomas should have recused themselves in the case, involving Citizens United, because of their attendance at past retreats organized by the conservative financier Charles Koch, whose company operates a foundation that is a major contributor to political advocacy groups.

Common Cause also cited the role of Mr. Thomas’s wife, Virginia Thomas, in forming a conservative political group opposed to the Obama administration as grounds for his disqualification.

The petition is a new tack for opponents of the court’s decision in the Citizens United case. Common Cause, by its own acknowledgment, faces a difficult task in getting the justices’ to remove themselves from the case and seeking to have the Citizens United decision itself vacated.

“We’re treading in new territory here for us,” said Arn H. Pearson, Common Cause’s vice president for programs. “But a situation like this raises fundamental questions about public confidence in the Supreme Court.”

Officials at Koch Industries, which Mr. Koch leads, did not respond to e-mails and a phone call Wednesday seeking comment on the petition. A spokeswoman at the Supreme Court declined comment.

Supreme Court justices have wide latitude in deciding whether to recuse themselves from hearing cases. In one of the more well-known examples in recent years, Justice Scalia refused to remove himself from hearing a challenge to Vice President Dick Cheney’s energy task force after he had gone duck hunting with Mr. Cheney in 2004.

“It’s a steep uphill climb for Common Cause, but not an insurmountable one,” said Steven Gillers, who teaches legal ethics at New York University. At the very least, he said, the group’s petition could force a “public airing” of questions surrounding the two justices’ past appearances at the Koch retreat and their connections to the group.

Still unknown, for instance, is exactly when Justices Scalia and Thomas appeared before the group for its invitation-only retreat, which is aimed at promoting political strategies for economic freedom, or whether they were reimbursed for their expenses.

Common Cause said in its petition to the Justice Department that if either of the justices appeared before Mr. Koch’s group between 2008 and 2010, when the court was considering aspects of the Citizens United case, “it would certainly raise serious issues of the appearance of impropriety and bias.”

Mr. Koch and his brother, David Koch, were among the main beneficiaries of the Supreme Court’s decision in the Citizens United case and became a favorite target of liberal groups, which accused them of effectively trying to buy the election.

The political action committee for Koch Industries, a Kansas-based energy company, spent $2.5 million in last year’s elections, according to the Common Cause complaint. Americans for Prosperity, a conservative group that the Koch brothers founded, is believed to have spent tens of millions more in the campaign to support conservative candidates.

This article has been revised to reflect the following correction:

Correction: January 27, 2011
An article last Thursday about concerns by the advocacy group Common Cause that the participation of two Supreme Court justices in a campaign finance case last year might have posed a conflict of interest misstated the purpose of a request Common Cause made to the Justice Department. The advocacy group wants Justice to investigate whether Justices Antonin Scalia and Clarence Thomas should have recused themselves in the case, involving Citizens United, because of their attendance at past retreats organized by the conservative financier Charles Koch, whose company operates a foundation that is a major contributor to political advocacy groups. Common Cause is not seeking to have the justices recuse themselves from all future campaign finance cases.
Clarence Thomas Letters (Velvet Revolution) (pdf)

Supreme Court Justice Clarence Thomas’ Failure to Disclose Income of Spouse (Common Cause) (pdf)

Justice Thomas’s Wife Sets Up a Conservative Lobbying Shop (by Eric Lichtblau, New York Times)

Clarence Thomas Didn’t Report Wife’s Political Income (by Noel Brinkerhoff, AllGov)

Clarence Thomas’ Wife May Have Benefitted from His Vote on Campaign Financing (by Noel Brinkerhoff and David Wallechinsky, AllGov)

Wife of Supreme Court Justice Thomas Starts Conservative Lobbying Group (by Noel Brinkerhoff, AllGov)

Friday, February 11, 2011

Attorney Dominic A. Barbara Is Suspended From The Practice Of Law By The Appellate Division, Second Department

Matter of Barbara
2011 NY Slip Op 01023
Decided on February 8, 2011
Appellate Division, Second Department

Per Curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.




[*1]In the Matter of Dominic A. Barbara, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Dominick A. Barbara, respondent. (Attorney Registration No. 1487958)
DISCIPLINARY proceeding instituted by the Grievance Committee for the Tenth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 24, 1971. By decision and order on application of this Court dated February 3, 2010, the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against the respondent and the issues raised were referred to the Honorable Michael F. Mullen, as Special Referee to hear and report.

Robert A. Green, Hauppauge, N.Y. (Michael Fuchs of counsel), for petitioner.

Moran Karamouzis LLP, Rockville Centre, N.Y. (Grace D. Moran of counsel), for respondent.


PER CURIAM.The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition dated November 17, 2009, containing five charges of professional misconduct. Charge five was withdrawn by the Grievance Committee following the hearing. After a preliminary conference on March 30, 2010, and a hearing on April 15, 2010, the Special Referee sustained the four remaining charges of professional misconduct. The Grievance Committee now moves to confirm the Special Referee's report and impose such discipline as the Court deems just and proper. The respondent's counsel has submitted an affirmation in response seeking to disaffirm the Special Referee's report with respect to charge two and to afford appropriate weight to the evidence of mitigation.

Charge one alleges that the respondent failed to forward to his client in a domestic relations matter a written, itemized bill on a regular basis, at least every 60 days, in violation of 22 NYCRR 1400.2.

The respondent was retained by Louis Rubino on or about September 24, 2004, to represent him in a domestic relations matter pending in the Supreme Court, Suffolk County. The respondent received the sum of $40,000 for his representation of Mr. Rubino in that matter. Mr. Rubino discharged the respondent in or about May 2005. During his representation, the respondent [*2]failed to issue written, itemized bills for legal services to Mr. Rubino on a regular basis.

Charge two alleges that the respondent failed to adequately supervise the conduct of attorneys and non-attorneys in his law firm, in violation of Code of Professional Responsibility DR 1-104(c) and (d)(2) (22 NYCRR 1200.5[c], [d][2]) .

During the time in which he represented Mr. Rubino, the respondent was the only named partner in his firm and had supervisory authority over other lawyers and non-lawyers in the firm. Each attorney in the respondent's firm was responsible for maintaining time sheets on the matters to which they were assigned and for forwarding completed time sheets to the firm's bookkeeper to prepare billing statements. The bookkeeper was responsible for forwarding client billing statements to the individual attorneys responsible for the matter to review and approve. The attorney responsible for each matter was responsible for reviewing and approving the billing statement and returning it to the bookkeeper. After receiving the billing statement back from the attorney, the bookkeeper was responsible for forwarding it to the client.

In the exercise of reasonable management or supervisory authority, the respondent knew or should have known that the firm's procedures were not being followed by all attorneys and non-attorneys in the firm with respect to billing statements for Mr. Rubino.

Charge three alleges that the respondent failed to refund that portion of a legal fee paid in advance which had not been earned, after being discharged by the client, in violation of Code of Professional Responsibility DR 2-110(a)(3) (22 NYCRR 1200.15[a][3]).

On or about May 11, 2006, the respondent was retained to represent Laura Gunther in a matrimonial action and was paid a retainer in the sum of $10,000. Although Ms. Gunther made several requests for a return of the balance of the unused retainer, the respondent failed to comply. Thereafter, by letter dated July 30, 2007, the respondent and his associate, Cindy Prusinowski, were advised that Christopher Cassar was now representing Ms. Gunther. The letter stated that the matrimonial action had been discontinued, that the respondent's services were no longer needed, and requested a refund of the balance of the retainer in the sum of $7,482.50.

Although the respondent's firm received that letter, it failed to respond. A duplicate letter, marked "Second Request" and dated August 21, 2007, was mailed to the respondent and Ms. Prusinowski. Although that letter was also received, the respondent's firm failed to respond or to issue the requested refund.

By check dated April 3, 2008, the respondent's firm issued a refund to Ms. Gunther in the sum of $7,122.50, the balance of the retainer. During the period from May 11, 2006, through April 3, 2008, the respondent was the only named partner in his firm and was responsible for the conduct of attorneys and non-attorneys in the firm.

Charge four alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer by failing to adequately communicate with his client or her new counsel, in violation of Code of Professional Responsibility DR 1-102(a)(7) (22 NYCRR 1200.3[a][7]), based on the factual allegations of charge three.

Based on the evidence adduced and the respondent's admissions, the Special Referee properly sustained the four remaining charges of the petition. Accordingly, the Grievance Committee's motion to confirm the Special Referee's report is granted.

In determining an appropriate measure of discipline to impose, the Grievance Committee takes note of the respondent's extensive disciplinary history. Between August 17, 1988, and October 1, 2009, the respondent received nine Letters of Caution, nine Admonitions, and two Advisements. Eight of those Admonitions were issued on December 7, 2007, for separate complaints. Some of these Grievance Committee-level sanctions were issued for professional misconduct identical to the charges in the instant proceeding. For example, six of the Admonitions were for inadequate supervision, and for failing to properly bill clients in domestic relations matters. One Admonition involved the respondent's failure to promptly refund a retainer balance. The respondent was also issued two Letters of Caution for failing to adequately cooperate with a client's replacement counsel.

The respondent attempts to mitigate his disciplinary history by noting that most of the complaints which led to an avalanche of Grievance Committee sanctions were caused by his health problems, compounded by the sabotage of his law practice by disloyal associates. The respondent contends that he had no opportunity to amend his office procedures following the Admonitions inasmuch as the other complaints, including those underlying this proceeding, were already filed. He [*3]proudly points out that in all his years of practice, he was only the subject of two malpractice claims which were dismissed in their early stages.

The respondent emphasizes the remedial efforts he has undertaken to improve his office, such as downsizing and hiring an administrative assistant, and the lack of substantial harm to clients. He asks the Court to take note of his commitment to rehabilitation and sobriety, his remorse, his complete cooperation, his strong public service record, and the character letters attesting to his integrity, competence, and dedication to his clients.

Balancing the respondent's disciplinary history with the remedial efforts undertaken and the mitigation proffered, the respondent is suspended from the practice of law for a period of 18 months.


ORDERED that the respondent, Dominic A. Barbara, is suspended from the practice of law for a period of 18 months commencing March 10, 2011, and continuing until further order of this Court; the respondent shall not apply for reinstatement earlier than March 9, 2012, and in such application, the respondent shall furnish satisfactory proof that during said period he (1) refrained from practicing or attempting to practice law, (2) fully complied with this opinion and order and with the terms and provisions of the written rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10), (3) complied with the applicable continuing legal education requirements of 22 NYCRR 691.11(c)(2), and (4) otherwise properly conducted himself; and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until the further order of this Court, the respondent, Dominic A. Barbara, shall desist and refrain from (l) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that if the respondent, Dominic A. Barbara, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).


Matthew G. Kiernan
Clerk of the Court

Online lawyer rating for Dominic Barbara