Retired Arizona Judge Reveals Corruption in Legal System

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Justice John F. Molloy was an attorney in Arizona who went on to serve as a judge on the Arizona Superior Court bench. He is probably best known for his time serving as Chief Justice to Court of Appeals for the State of Arizona, where he authored the famous Miranda decision that was subsequently appealed to the U.S. Supreme Court and overturned, resulting in what is known today as the “Miranda Rights” which law enforcement now quotes to suspected criminals upon arrest.

Judge Molloy wrote a book that was published in 2004 a few years before he died in 2008. He was apparently suffering from cancer at the time, and perhaps knew his remaining time on earth was short. The title of the book is: The Fraternity: Lawyers and Judges in Collusion, published by Paragon House.

An excerpt from the book has been published and copied in many places on the Internet today, reprinted in accordance with the “fair use” provision of Title 17 U.S.C. § 107. It is an amazing expose on just how corrupt the American Judicial System is today, and it perhaps gives us a better understanding on how so many judges in family or juvenile courts across the United States are able to successfully remove children from the custody of their parents in medical kidnapping cases.

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“THE FRATERNITY “- THE CORRUPTION OF THE LEGAL SYSTEM EXPOSED BY A JUDGE “The once honorable profession of law now fully functions as a bottom-line business, driven by greed and the pursuit of power and wealth, even shaping the laws of the United States outside the elected Congress and state legislatures.”

Justice John F. Molloy

When I began practicing law in 1946, justice was much simpler. I joined a small Tucson practice at a salary of $250 a month, excellent compensation for a beginning lawyer. There was no paralegal staff or expensive artwork on the walls. In those days, the judicial system was straightforward and efficient. Decisions were handed down by judges who applied the law as outlined by the Constitution and state legislatures. Cases went to trial in a month or two, not years. In the courtroom, the focus was on uncovering and determining truth and fact.

I charged clients by what I was able to accomplish for them. The clock did not start ticking the minute they walked through the door.

Looking back

The legal profession has evolved dramatically during my 87 years. I am a second-generation lawyer from an Irish immigrant family that settled in Yuma. My father, who passed the Bar with a fifth-grade education, ended up arguing a case before the U.S. Supreme Court during his career.

The law changed dramatically during my years in the profession. For example, when I accepted my first appointment as a Pima County judge in 1957, I saw that lawyers expected me to act more as a referee than a judge. The county court I presided over resembled a gladiator arena, with dueling lawyers jockeying for points and one-upping each other with calculated and ingenuous briefs

That was just the beginning. By the time I ended my 50-year career as a trial attorney, judge and president of southern Arizona’s largest law firm, I no longer had confidence in the legal fraternity I had participated in and, yes, profited from.

I was the ultimate insider, but as I looked back, I felt I had to write a book about serious issues in the legal profession and the implications for clients and society as a whole. The Fraternity: Lawyers and Judges in Collusion was 10 years in the making and has become my call to action for legal reform.

Disturbing evolution

Our Constitution intended that only elected lawmakers be permitted to create law. Yet judges create their own law in the judicial system based on their own opinions and rulings. It’s called case law, and it is churned out daily through the rulings of judges. When a judge hands down a ruling and that ruling survives appeal with the next tier of judges, it then becomes case law, or legal precedent. This now happens so consistently that we’ve become more subject to the case rulings of judges rather than to laws made by the lawmaking bodies outlined in our Constitution.

This case-law system is a constitutional nightmare because it continuously modifies constitutional intent. For lawyers, however, it creates endless business opportunities. That’s because case law is technically complicated and requires a lawyer’s expertise to guide and move you through the system. The judicial system may begin with enacted laws, but the variations that result from a judge’s application of case law all too often change the ultimate meaning.

Lawyer domination

When a lawyer puts on a robe and takes the bench, he or she is called a judge. But in reality, when judges look down from the bench they are lawyers looking upon fellow members of their fraternity. In any other area of the free-enterprise system, this would be seen as a conflict of interest.

When a lawyer takes an oath as a judge, it merely enhances the ruling class of lawyers and judges. First of all, in Maricopa and Pima counties, judges are not elected but nominated by committees of lawyers, along with concerned citizens. How can they be expected not to be beholden to those who elevated them to the bench?

When they leave the bench, many return to large and successful law firms that leverage their names and relationships.

Business of law

The concept of “time” has been converted into enormous revenue for lawyers. The profession has adopted elaborate systems where clients are billed for a lawyer’s time in six-minute increments. The paralegal profession is another brainchild of the fraternity, created as an additional tracking and revenue center. High powered firms have departmentalized their services into separate profit centers for probate and trusts, trial, commercial, and so forth.

The once-honorable profession of law now fully functions as a bottom-line business, driven by greed and the pursuit of power and wealth, even shaping the laws of the United States outside the elected Congress and state legislatures.

Bureaucratic design

Today the skill and gamesmanship of lawyers, not the truth, often determine the outcome of a case. And we lawyers love it. All the tools are there to obscure and confound. The system’s process of discovery and the exclusionary rule often work to keep vital information off-limits to jurors and make cases so convoluted and complex that only lawyers and judges understand them.

The net effect has been to increase our need for lawyers, create more work for them, clog the courts and ensure that most cases never go to trial and are, instead, plea-bargained and compromised. All the while the clock is ticking, and the monster is being fed.

The sullying of American law has resulted in a fountain of money for law professionals while the common people, who are increasingly affected by lawyer-driven changes and an expensive, self-serving bureaucracy, are left confused and ill-served. Today, it is estimated that 70 percent of low-to-middle-income citizens can no longer afford the cost of justice in America. What would our Founding Fathers think?

This devolution of lawmaking by the judiciary has been subtle, taking place incrementally over decades. But today, it’s engrained in our legal system, and few even question it. But the result is clear. Individuals can no longer participate in the legal system.

It has become too complex and too expensive, all the while feeding our dependency on lawyers. By complicating the law, lawyers have achieved the ultimate job security. Gone are the days when American courts functioned to serve justice simply and swiftly. It is estimated that 95 million legal actions now pass through the courts annually, and the time and expense for a plaintiff or defendant in our legal system can be absolutely overwhelming.

Surely it’s time to question what has happened to our justice system and to wonder if it is possible to return to a system that truly does protect us from wrongs.

A lawyer from Tuscon, Arizona, John Fitzgerald Molloy (b. 1917) was elected to the Superior Court bench where he served for seven years as both a juvenile court and trial bench judge. He subsequently was elected to the Court of Appeals where he authored over 300 appellate opinions, including the final Miranda decision for the Arizona Supreme Court. During that period, he also served as president of the Arizona Judge’s Association. After 12 years, Molloy returned to private practice to become president of the largest law firm in southern Arizona. His book has received widespread praise for its candor and disquieting truths.

Copyright 2004, Paragon House

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Shouldn’t All Family Court Judges Be Like This?

I feel the last time we talked about a family court proceeding, it was horrible. Magistrate Patricia Doninger was caught on camera ignoring the pleas of a woman who was sexually assaulted by one of her court marshals.

It appears that Doninger has finally been relieved of her duties. With that out of the way, maybe we should focus on people who take a little more pride and concern when adjudicating family disputes.

The ideal family court judge should have one primary concern, and that is what is best for the children. Today we have a judge who intrinsically understands that “going to Disneyland” is always what’s best for the children…

 

We spend so much time talking about judges behaving badly; how about a nice story about a judge behaving appropriately? It looks like separated parents were squabbling over whether the mother was allowed to take the children on a vacation. You know how they do — estranged parents who hate each other and fight through their kids.

In these situations, you just want your Family Court judge to act as a reasonable arbiter who doesn’t get sucked down into the muck of bickering parents, and instead keeps his or her eye on the ball of what’s best for the kids. But in Arizona, it looks like the Family Court acts more like badass grandparents who are still young at heart. Here’s part of the Minute Entry ruling on a mother’s request to travel out of state that was opposed by the father:

The court grants the mother’s request. It also gives the father a two-week vacation of his choosing, and suggests some nice “staycation” sites in Arizona should the Dad not want to go back to Disneyland. You can read the full order on the next page.

I can’t think of a better use of Family Court resources than making sure some kids can go to Disneyland with their mommy. Well, okay, making sure that kids are removed from abusive homes is probably a better use, but Disney, that’s totally number two.

More importantly, I think it’s important that Family Court judges and magistrates not lose the ability to appreciate things like Disneyland. Clearly, when you look at the video of Patricia Doninger, you’re looking at a woman who has been jaded by the system she’s presiding over. We’ve got to keep our Family Court adjudicators fresh.

Maybe all family court personnel should go to a Disney resort every couple of years, just to remind them what it’s all about.

 

A version of this column originally appeared in abovethelaw.com.

A version of this column originally appeared in feedproxy.google.com.

Oregon sued over foster abuse in Salem home

Injustice-lights-framed-dreamstime_xs_19885693Lawyers for 11 young children who reportedly suffered sexual abuse at a Salem, Ore., foster home have filed nearly $23 million in lawsuits against the state's Department of Human Services.

The lawsuits represent one of the most sweeping cases brought against the state child-welfare agency over abuse by one foster parent, The Oregonian reported (http://is.gd/dibMku).

An agency spokesman referred questions to the Oregon Department of Justice, which declined comment Monday.

James Earl Mooney was sentenced last year to 50 years in prison after pleading guilty to five counts of first-degree sodomy. His wife wasn't charged with any wrongdoing. The couple has divorced.

The newspaper says 50 babies and toddlers lived in the foster home from 2007 to 2011.

"The notion that these kind of crimes can occur serially in a home where the state pays to house children is a tragedy beyond measure," said David Paul, a Portland lawyer who filed suit on behalf of one child, now 5.

Lawyer Steve Rizzo filed two suits Friday in Multnomah County Circuit Court and U.S. District Court on behalf of 10 foster children.

In those lawsuits, Rizzo says Mooney and his wife were 22-year-old newlyweds and didn't have children when DHS approved them as foster parents. Their application, background checks, home study and training took less than two months, the lawsuits contend.

Rizzo's filings accuse agency employees of allegedly ignoring escalating signs of abuse from the children _ including complaints of pain, redness on their buttocks and unusual behavior, such as smearing feces on walls.

The molestations came to light in April 2011, the newspaper reports, after one of the foster children moved from the home and told a prospective adoptive parent that Mooney had sexually abused her in the shower.

DHS spokesman Gene Evans said he couldn't discuss specifics, but did talk about department policies that allowed Mooney and his wife to become foster parents.

People as young as 21 _ newlyweds, cohabitating couples or single people, regardless of whether they have children _ can apply to be foster parents of children who aren't relatives, Evans said.

In 2007, a supervisor would have been required to OK a screener's decision to approve the applicants, but not necessarily in writing. In 2010, the department began requiring supervisors to commit their signatures to paper. The agency also gave supervisors more training, Evans said.

The agency also does a better job of sharing information among caseworkers who supervise children in the same home, Evans said. Now anytime a report of abuse is made against a foster parent, all involved caseworkers are automatically alerted.

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Information from: The Oregonian, http://www.oregonlive.com

Behind Enemy Lines: What is CPS Telling Their Lawyers?

 

The Texas Department of Family and Protective Services has published an online practice guide for attorneys representing CPS in Texas. This guide can also be a valuable resource for families battling through a CPS investigation.

Take a look at what the guide has to say about the frequently used Safety Plan:

SAFETY PLANS

A safety plan is a written agreement between CPS and the family which serves as a short term solution to address specific concerns about child safety in a home. A safety plan is a voluntary agreement and is not legally binding. Consequently, a safety plan is only appropriate for a limited time.

Safety plans commonly include voluntary agreements to:

  • Place a child outside the home;
  • Suspend or restrict visitation; and/or
  • Submit to drug testing.

A safety plan cannot contradict existing court orders, but can require a parent to voluntarily forgo or limit visitation rights for a specified time while the safety of the child is assessed.

EXAMPLE

A divorce decree grants a father the right to visitation with his minor daughter. CPS cannot compel the mother to interfere with those rights (by, for example, only allowing supervised visits), because the mother could be held in contempt for violating the terms of the decree. However, if an allegation of sexual abuse against the father is pending, a condition of the safety plan could be for the father to agree to forego his rights to unsupervised visits until the investigation is complete.

Violation of Safety Plan

Although terms of a safety plan are not legally enforceable, failure to comply with a safety plan can be valuable evidence at various stages of a case. Consider:

  • Violation of a safety plan is not a basis for removal, but it may contribute to show an immediate danger to the physical health or safety of a child to support a removal; and
  • Failure of a parent to follow a safety plan may relevant in a termination case.

The suggestion by the State of Texas that a Safety Plan is “voluntary” is shameful and false. CPS workers have been trained in the art of insulting, humiliating and threatening families during their investigations. More often than not, such a plan is signed by a parent based upon the false threat of a CPS worker to remove the child to a foster home.

Each year, our CPS attorneys help approximately 50 families in the Dallas/Ft. Worth area rescind these Plans that were signed under the worst form of duress. These battles require not only aggressive legal representation but tact and an understanding of the CPS system. We are a known quantity within the Texas CPS system and Texas family law courts.

Transgender Rights: What Happens to Custody When Mommy Becomes Daddy?

Transgender Rights What Happens to Custody When Mommy Becomes Daddy

Transgender Rights What Happens to Custody When Mommy Becomes Daddy

A new joint publication between the American Civil Liberties Union (ACLU) and the National Center for Transgender Equality (NCTE) provides information to transgender parents whose spouses may use information about their transition against them in order for cases of child custody to be handled fairly. "Protecting the Rights of Transgender Parents and their Children: A Guide for Parents and Lawyers" compiles a number of situations a transgender parent may face when attempting to gain custody of their children, and includes case law and sample testimonies so the person may fight for fair and honest treatment even when their ex-spouse tries to demonize them for their gender identity.

Since custody agreements try to satisfy the "best interest of the child," the transgender parent is often placed in a bad light because of their transition. Some courts have seen through transphobia: the 1973 case Christian v. Randall found that "the record contain[ed] no evidence that the environment of the [transgender parent's] home ... endangered the children's physical health or impaired their emotional development." In all actuality, it should be as simple as this. Regardless of the transgender parent's initial gender identification, the fact that they went from being "Mommy" to "Daddy" should be irrelevant to their parenting ability. However, cases like Cisek v. Cisek (1982) ruled in favor of the cisgender parent (one whose gender identity and genitals "match," like a person identifying as a woman who has a vagina) because the "impact of [the parent's planned] gender reassignment surgery on the children is unknown." This should be a no-brainer: the child was not in contact with the parent's genitals before, and what is inside their parent's underwear will not influence their parenting skills one way or another. But this case and others like it have terminated parenting rights of the transgender parent simply because they were transgender.

The publication goes on to advise transgender parents about how to come out to their children, potentially involving the other parent if possible. A therapist may be contacted so the child can come to terms with the parent's transition as easily as possible. Lambda Legal, a civil rights legal organization that represents LGBT people, says that children are much less likely to react negatively to a parent's transition than adults are because they have fewer preconceived notions about what gender identification is. The ACLU/NCTE publication suggests having those who have worked closely with the child during the coming out process testify at the custody hearing, as they will be able to give the most accurate testimony of the child's well-being. If the child is old enough, they can also meet with the judge in private and discuss their feelings about the situation. The transgender parent's treating physician may also testify to the fact that the parent is undergoing the transition between genders. Additionally, it is very important that if any suspicion of mistreatment due to the parent being transgendered arises, they may call in an expert on the subject to deliver a "Transgender 101" testimony discussing the idea of gender identity and why one may want to transition.

Several laws are highlighted, including the court's inability to restrict the transgender parent's custody when it lacks evidence that the parent would be harmful, that keeping the child from the transgender parent due to social prejudice against transgender people is unlawful, and that the court cannot require a parent to conceal their gender identity unless it is shown that it would harm the child for them to know. These all work in the best interests of the child for one universal reason: Without proof or testimony of harm, neither the child nor the parent would benefit from being separated from one another. If evidence of potential harm does exist, then the court can take appropriate steps toward treating the transgender parent as one harboring an unsafe environment, not necessarily because of their gender identity or transition process.

The issues that transgender parents face simply for being transgender transcend the court system. Even when custody is not an issue, the transgender person's partner or ex-partner may become overwhelmed with prejudices and personal issues faced by the person who is coming to terms with their gender identity or transition. This publication is an excellent resource for not only those who are transgender parents, but for those looking to learn more about what it means to be transgender or how to treat transgender people (hint: the same as anyone else, with certain cautions). The ACLU and NCTE have done a great service to both those for whom LGBT equality is a staple of their careers and for transgender people in need of advice from competent sources.

A version of this column originally appeared in policymic.com.