9
CENTER for
JUDICIAL
ACCOUNTABILITY, INC.
______
Office of the Director
P.O. Box 69, Gedney Station, White Plains, NY 10605-0069
Telephone: (914) 997-8105 · Fax: (914) 684-6554
E-mail: http//:www.judgewatch.org
VIA E-MAIL:
December 15, 2004 (most appropriately, the anniversary date on which the first ten amendments to the U.S. Constitution, called the Bill of Rights, were adopted and took effect.)
Commission on Judicial Tenure and Disability
515 Fifth Street
Building A, Room 312
Washington, D.C. 20001
Att: William P. Lightfoot, Esq. Chairman
Re: Judicial Misconduct Complaint against DC Superior Court Judge Brian F. Holeman, calling for his immediate removal from the bench, upon a finding that he has been guilty of judicial misconduct immediately threatening the public interest, as presiding judge in the case of USA v. Elena Ruth Sassower, M 4113-03, as well as for the knowing misrepresentation of his credentials, potential perjury and other criminality, as set forth in his sworn answers to the Biographic Questionnaire, submitted to the Senate Committee on Governmental Affairs, which favorably reported his nomination.
Dear Mr. Lightfoot:
Per telephone conversation with your Executive Director, Cathaee Hudgins, I submit herewith additional and new information concerning Judge Holeman, the subject of our judicial misconduct complaint, as reflected in our FREE ELENA PETITION, with accompanying PETITION COMMENTS from shocked and outraged supporters from virtually every state in the country, as well as from other countries, receipt of which she verbally acknowledged last month.
Ms. Hudgins has confirmed to me that the judicial misconduct machinery has already been set in
motion on this complaint and that our aforesaid materials were distributed to all Commission members in time for it to appear on the Commission’s Agenda at its upcoming December meeting, at which time we respectfully request that it be given priority attention by reason of the grave nature of the complaint. Written confirmation of your receipt of this and our prior submission would be appreciated.
Beyond the legal documents posted on our website, referred to in the FREE ELENA PETITION, transcripts or other information may be procured from pro bono counsel who have made four separate applications to free Elena Sassower (hereinafter “Elena”) since September. The last application was DC’s equivalent of a habeas corpus application, which Judge Holeman predictably, wrongfully denied by:
▪ (a) falsifying and misrepresenting the factual record by claiming in face of the June 28, 2004 sentencing transcript showing his original pronounced sentence, that he had not imposed such sentence upon her; and
▪ (b) ignoring, disregarding, and distorting the controlling law in his written November 24, 2004 Order. For further information as to this charge and other legal aspects of the matter you may feel free to call Elena’s pro bono counsel, Nathan & Alyza Lewin of Lewin & Lewin (202) 828-1000.
Denial of fundamental due process and equal protection from start to sentence resulting in Elena’s wrongful conviction and sentence is one of many grounds for reversal that has generated the pending yet-to-be perfected appeal to the DC Court of Appeals. Just a few of the more flagrant examples of Judge Holeman’s demonstrating his bias, lack of competence, and judicial temperament, include:
n Steamrolling Elena to trial over her objection that the case was not “trial ready.” This was due to the Court’s failure to allow her time to avail herself of her legal remedies to challenge its 11th hour pre-trial rulings denying her discovery requests and restricting her right to offer evidence critical to her defense.
n Permitting the government to make a surprise critical oral amendment of its charging information document on the day of trial, with no papers, no advance warning or time to seek appropriate remedy
n Cutting Elena off and aborting her intended opening to the jury
n Cutting off Elena’s testimony when she was testifying on direct and cross-examination
n Ordering Elena to be removed and locked up in midst of her testifying on the witness stand
n Having US marshals be a hovering presence during Elena’s testimony so as to convey to the jury the message that she was a dangerous, violent person and in innumerable other expressions of his hostility toward Elena giving the jury a subliminal message that prejudiced the jurors against her in their eyes.
n Failing to recognize Elena’s pro se status and to accord her the solicitude required by case law and ethical rules, and in repeatedly denying her the opportunity to consult with and make effective use of her attorney-advisor
n Taking over the role of advocate for the prosecution, repeatedly sustaining objections never
made by the prosecution, instead of acting as impartial arbiter
n Doubling her sentence to six months when she turned down his unconstitutional, immoral,
and humiliating terms to probation as an alternative to his pronounced sentence
n Sentencing her to jail time, in disregard of the recommendations of both the US Attorney’s and the Court’s own probation services pre-sentence reports.
n Ordering her incarceration “forthwith,” denying her the benefit of a stay pending appeal, routinely granted in non-felony, nonviolent misdemeanors.
n Denying her a stay pending appeal, even when such applications were consented to
or unopposed by the government.
Elena Sassower (hereinafter “Elena”), a 48 year old Ivy League graduate, Hebrew Religious School teacher and youth leader, came before Judge Holeman as a non-lawyer , representing herself pro se. As Judge Holeman knew, she was employed full-time as Coordinator of the national, nonpartisan, nonprofit organization, known as The Center for Judicial Accountability Inc. (“CJA”). In addition, he knew she was employed by two New York synagogues as a part-time Hebrew religious school teacher, for more than 15 years, conducting weekly Sabbath services for the Junior Congregation of one and the annual High Holiday and other ritual services at another.
Judge Holeman summarily denied the pro bono lawyers’ motions for her release with a stay pending appeal, albeit supported by letters from Rabbis at both synagogues, with more than 1300 congregants were affected, even in face of the fact that she had already served the 92 days jail time, which Judge Holeman had pronounced as his original pronounced sentence.
Case law, as well as ethical codes of conduct, require courts to maintain a policy of “bending over backwards” for a pro se litigant. Such proscribes the “appearance of impropriety,” as well as the actuality, so that advantage shall not be, or appear to be, taken by reason of a litigant’s unrepresented status. Instead, in his most critical rulings, Judge Holeman invariably bent the other way -- in favor of the government. Judge Holeman’s failure to uphold this basic equitable principle, designed to equalize the playing field for a pro se litigant pitted against a represented and powerful adversary, here the government, whose vast resources were at the ready disposal of the US Attorney’s Office, permeated the bogus criminal proceeding from start to sentence.
Quite apart from the role to be played by the pro bono counsel now representing Elena on the yet to be perfected appeal in the case, this Commission has an independent duty to protect the public from Judge Holeman’s gross judicial wrongdoing, because of the immediate danger his continued presence on the bench represents.
As you know, a final decision by an appellate court on the yet to be-perfected appeal may be years away -- long after Elena has fully served her six month sentence. Such remedial action as you may take, although too late to help free political Prisoner of Conscience Elena Ruth Sassower, is essential so as to avoid the serious and substantial continuing risk to the public by his remaining in a position to inflict injury on anyone else by abusive, life-determining decisions, given his on the record stated bias against granting stays pending appeal to any convicted misdemeanant, as discussed
further hereinbelow.
Even accepting, arguendo, that the First Amendment were not, as of course it was, a complete defense protecting Elena’s respectfully spoken words, Mr. Chairman, there’s citizen opposition to
Judge Wesley based on his documented corruption as a New York Court of Appeals judge. May I testify?” at the Senate Judiciary Committee Public Hearing -- indisputably the right forum to receive the transcendingly vital public interest information she had to impart - there is no explanation, other than bias and vengeful vindictiveness, for Judge Holeman’s imposing upon her the severest possible punishment for a minor incident involving nothing but pure speech on Elena’s part, having no impact whatever on the already concluded Senate hearing, that injured no one, and that , in total, was over in a few minutes. This can be readily discerned from the videotape of the Senate Judiciary Committtee Public Hearing, posted on our website from the Senate’s own recording of it. It must be noted further that the DC statute gives the sentencing judge discretion to impose a fine of up to $250 as an alternative to jail and to vary the length of jail time up to a maximum of six months.
An objective observer bred on Anglo-American jurisprudence cannot but be repelled by Judge Holeman’s conduct throughout the proceedings and his robotic sentence, which failed to take into consideration the normal and customary mitigating` factors prescribed by law. How can any rational, impartial judge impose the kind of sentence he did for what any viewer can see on the Senate Judiciary Committee’s own videotape took no more than a couple of minutes after Senator Saxby Chambliss had adjourned the open Public Hearing? (see our online website link to the May 22, 2003 Senate Judiciary Hearing. Click to watch and listen to the videotape)
And then read the June 28 sentencing transcripts at http://www.judgewatch.org/transcripts.html) wherein Judge Holeman imposed upon Elena:
▪ the MAXIMUM SIX MONTHS JAIL SENTENCE, plus
▪ the MAXIMUM $500 FINE, plus
▪ the MAXIMUM $250 VICTIMS OF VIOLENT CRIMES ASSESSMENT (as to which, she was given no prior notice. Moreover, as the video shows, no “violent crime” was committed by her).
Such plainly excessive punishment starkly demonstrates Judge Holeman’s intemperate, biased judgment and his vindictive, intemperate nature. His actions before, during, and after sentencing make your prompt investigation, review, and action imperative in the public interest. Judge Holeman’s malice and arbitrariness is further shown in his finding-less order directing Elena to be incarcerated “forthwith,” enforced by his denial of her pre and post-sentence requests for a stay pending appeal -- a remedy routinely granted in non-violent, non-felony crimes, thereby preventing her from returning to her home in New York to put her affairs in order before commencing such unprecedented, unpredictable protracted sentence. It was for that reason that Elena’s attorney-advisor, Mark Goldstone, unequivocally stated to me when I put the question of him on the Friday before she went down to DC for her sentencing that there was “zero chance of her being put in jail
the day of the sentence.”
Judge Holeman’s sentence, devoid of any supporting factual findings or conclusions of law, does not “fit the crime” and goes beyond the pale of allowable discretionary punishment, which under
modern penology is to be predicated on the least detrimental alternative necessary to protect society from recurrence. A November 18, 2004 article in the Harvard Crimson headlined “Breyer touts
‘active liberty’ reported that US Supreme Court Justice Breyer, speaking at the Harvard Law School, said ‘American citizens must participate in government, if they expect to realize the Constitution’s intentions.’ Opening an important series of lectures on Democracy and the Courts, Breyer stressed the importance of what he called ‘active liberty’.” By effectuating this concept, Justice Breyer said “citizens help trace the line of authority of the making of governmental decisions back to the People.” Ironically, Elena Sassower is a citizen who has been punished, severely, rather than hailed as a hero, for performing the very duty Justice Breyer urges our citizenry to perform: that of participating in our governmental processes. Educating the public as to the need for such participation, particularly in the judicial arena, has been CJA’s mission since its inception more than a dozen years ago. Now you and other Commission members have the duty to protect that patriotic citizen who has been wrongfully retaliated against by our government for her courageous “judicial whistle-blowing” good deeds in the line of her citizen’s duty, implemented by her empiric research and advocacy work in performing CJA’s declared mission all those years.
Recognizing that your duty is separate and distinct from the appellate review process that lies ahead in the more distant future, your taxpayer-funded, monitoring public agency needs to put out the fire represented by Judge Holeman’s clear abuse of his judicial power before it becomes a national conflagration. It must not only examine the integrity and independence of Judge Holeman’s on the bench performance, as well as his temperament, the Commission must recognize the exigent need for its swift action so as to remove him from the bench “forthwith” or as soon as that can be legally effected. Otherwise our government will not fulfill the expectations of our citizenry that our Constitution will be more than a worthless piece of paper.
Judge Holeman’s Misrepresentation of his Credentials as a Basis for Judicial Discipline.
Since the DC Code of Judicial Ethics applies to judicial nominees, as well as to sitting judges, your Commission has jurisdiction to address his conduct as a judicial candidate. Thus, we decided to look into Judge Holeman’s credentials, as the Senate Committee on Governmental Affairs, to whom he presented them, was obliged to do so to properly assess his fitness for the bench. The results of our analytical study are as shocking as Judge Holeman’s on-the-bench deportment. Our painstakingly compiled investigative data attests from his own mouth to lack of candor, integrity, and competence, such that he should never have been confirmed by the Committee and should not be sitting now.
The following Analysis does not purport to be exhaustive or complete, since our pro bono time was limited to the first half-dozen pages of Judge Holeman’s completed sworn Questionnaire, (see attached). Limited as it is, it is more than enough for present purposes to demonstrate a pattern and practice of lying, deceit, evasiveness, and fraudulent concealment. Falsus in unum, falsus in