Friday, November 20, 2009

70th Installment. Mark E. Brennan, Part 3: Sentencing

Third in Mark Brennan series

For lawfully hijacking the respect the jury ordinarily reserves for the judge, the Colorado Supreme Court suspended Attorney Mark E. Brennan for a year and a day, announcing to trial attorneys in Colorado and beyond: exercise your professional judgment about how much deference your client's interests allow a biased judge, and you risk not only the reasonably contemplated mistrial and fine for contempt but your livelihood. The court is unembarrassed in signaling its solidarity with Judge Blackburn for the humiliation he suffered in his own courtroom; summarizing the case, the court admits it punishes Brennan for his supposed bad manners (his "impertinence"):

Respondent purposely challenged a federal district court judge, because he believed the judge held a bias in favor of his opponent. Ultimately, the judge found Respondent in contempt of court for his insolent behavior and disrespect for the authority of the tribunal. Yet, even after the judge entered the contempt order, Respondent persisted in his impertinent behavior.

The court flaunts its vindictive motives yet pretends to apply Colorado ethical standards against disrupting a tribunal and engaging in conduct prejudicial to the administration of justice. Judge Blackburn had admitted the record doesn't support his conclusions, and the same holds for the ethics court, allowing the verdict to avenge Brennan's "impertinence," instead of reflecting the evidence: "Simply recounting Brennan's myriad and varied transgressions does not adequately capture the pervasiveness and the magnitude of his prejudicial behavior," Judge Blackburn had written.

Mark Brennan did what any trial attorney must try to do when confronting a trial judge biased against his client yet acting within his discretion: he replaced the judge at the pinnacle of the jury's respect. The maneuver's difficulty is attested by the contempt citation Brennan earned in its execution, but the possibility of this maneuver's success preconditions a real jury trial. Standing for prohibiting success in this subtle encouragement to a jury's moral mutiny, officer-of-the-court jurisprudence would guarantee the judge his respect by right, when the law only gives the judge every procedural advantage to maintain it.

Brennan tried to introduce his deposition of the jury foreman as evidence in the discipline case, but the court didn't allow it; Brennan's success was his real transgression. The tenor of the jury-foreman's exculpation:

You were absolutely polite. You tried your best. I know you did. You could tell. The other jurors could tell that you did. You didn't disrupt the trial in our hearing... ¶ But as far as the jury impression, no, it was a clash of styles. You were not impolite. You were an absolute gentleman. (Dillingham Deposition, January 2009, 54: 6 -- 14.)

Brennan had won over this jury, despite the court's bias. When the jury foreman heard of the original verdict's partial revocation, she perceived it as "an attack on me, and … an attack on the jury... [A]n attack on a jury that he portrayed as so ignorant and so naive that we could not see through the BS that was going on to get to the question ..." The pedestal where jurors put the judge, which courtroom procedure takes such pains to construct and repair, was leveled: "I would like to sue for libel. ... This is a judge that I told everybody I met I thought was the epitome of what a good judge should be.... It was Alice down the rabbit hole." (21: 7 -- 12.)

Courtroom justice involves delicate balances, and among the balanced factors is the right of an attorney to try to turn the jury's respect away from a biased judge. Officer-of-the-court jurisprudence, enforced by the state bars, is an aberration threatening to become the rule which emasculates the jury trial.

11 comments:

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Brad Henschel, JD said...

I agree with everything that anonymous #1 posted.

kay sieverding said...

Maybe my miserable experiences as a pro se litigant can help establish a record. In my 02-cv-1950 case before former judge Nottingham, the defense billed for over 20 calls to and from the court to discuss pending motions. These can be seen in the federal court house in folder 465 except for the ones from Anthony Lettunich, which were part of that filing but which have been mysteriously removed from the courthouse files.

Magistrate Schlatter wrote a long and convoluted report. Nottingham claimed that he did a de novo review so did the 10th Circuit under Judge Henry. I quoted the Supreme Court but it did no good. Thus Judge Henry specifically ratified these Magistrate Schlatter statements: "Claims against law enforcement authorities ..are governed by a one-year statute of limitations" ... " Lawyers cannot be sued for their actions as advocates"..... "prosecutors have absolute immunity".

Schlatter said I should be punished because I wrote "it was widely rumored in Steamboat Springs that Kevin Bennett had engaged in the marketing of marijuana and cocaine for many years" and that the police allegedly ignored or condoned this activity"...
Kevin Bennett recently admitted that he pled guilty for conspiracy to sell hash.
http://www.exploresteamboat.com/news/2009/sep/30/candidates_divided_financing_issue/
When I asked the city council and the police about Kevin Bennett's history as a drug dealer, they denied it.

In my case, no facts were admitted. I claimed retaliation thru malicious injunction and malicious prosecution because I complained about Kevin Bennett's conversion of the road in front of my home and his building extra buildings that violated the zoning. 9 years later the Routt County Property Tax rolls for Kevin and Jane Bennetts' property at 701 Princeton Ave pin 222800001 show that they have no more square feet than they did in 1950 and that they are in 1980 condition. Yet the Steamboat Pilot shows that I attempted to go to court in 2000 to stop their ongoing construction of new buildings still not on the property tax rolls 9 years later. There are building permits showing a 2009 square foot two story building and a guest house built in 2000 and these buildings are visible from the street and on Google street view. Bennetts' lawyer said that I "molested" Jane Bennett by complaining about the buildings that are still not on the property tax rolls. I quoted the Colorado Supreme Court that adjoining property owners have standing to enforce the zoning Roosevelt v. Beau Monde Company, 384 P.2d 96, 152 Colo. 567 (Colo. 07/22/1963) The Routt County Assessor now says that there are many illegal buildings in Steamboat and enforcement of the regulations is lax. http://www.steamboatpilot.com/news/2008/jun/17/fire_death_questions_linger/


I urge you to look for the insurance companies. In my case the defendants told the 10th Circuit there were no other interested parties even as they were billing Underwriters at Lloyds London and Mutual Insurance Limited of Bermuda.

Kay Sieverding said...

The fired Denver fireman's case was probably insured by Colorado Intergovernmental Risksharing Agency. CIRSA sells "public officials errors and omissions insurance". From the name it should have covered the firemans' claim. But even though CIRSA's financial statements show that it doesn't pay taxes, and governments are its sole source of revenues, it has never ever disclosed its claims handling policies to the Colorado Division of Insurance even though that is required by CRS 24-10-115.5 (5) “The commissioner of insurance, or any person authorized by him, shall conduct an insurance examination at least once a year to determine that proper underwriting techniques and sound funding, loss reserves, and claims procedures are being followed.” Cirsa employee (Mike Wagoner) told me that he found my claim on their computer and that he was told to hang up if I called. (See 10th Cir opening brief 06-1038) CIRSA isn't listed on the Secretary of State database as a business and it is not listed as a government agency. The Co AG filed in a case I was involved with that CIRSA is not a state agency.

I think CIRSA goes behind the scenes to affect the outcome of both cases and disciplinary hearings and that it engages in illegal witness intimidation and retaliation. In my case, CIRSA paid about 20 itemized bills for calls to and from the court about nonpublic information and their attorney David Brougham asked former judge Nottingham to throw me in the dungeon until I did what they wanted in other courts. When I was there in December 05 the Denver Post and Rocky Mountain News reported on my being held indefinitely to coerce me. Another prisoner told me that she worked at U.S. West. She said they were talking about my situation and that her co-worker said she tried to sue the City of Denver for sexual harassment but was told that they would put her in jail if she didn't dismiss her suit.

What I found is that they were searching for a pretext to discipline me. One of the lawyers billed for going back over my old emails, attempting to get a joint statement of facts or define their position, looking for threatening phrases. Nothing came of it because he couldn't find any but it shows their desire to find some words they could twist to show what wasn't there. Brennan was probably really excited and anxious to make the needed statements. I didn't see any transcripts on-line and don't know all the details but I can tell you CIRSA doesn't want to answer questions.
http://www.cirsa.org/

Kay Sieverding said...

Well I am sorry that no one else has posted here, but I am trying to help you, so please take this in good faith.

West Law has a new book on contempt
Arlidge Eady and Smith on Contempt, 3d
"It covers the history of contempt through to the latest developments in practice and procedure and explains how the law of contempt has evolved following the introduction of the Civil Procedure Rules and the Human Rights Act 1998."
http://west.thomson.com/productdetail/154946/30007401/productdetail.aspx

this might be useful
Invoking Summary Criminal Contempt Procedures: Use or Abuse? United States v. Dellinger: The "Chicago Seven" Contempts
Michigan Law Review, Vol. 69, No. 8 (Aug., 1971), pp. 1549-1575
(article consists of 27 pages)
Published by: The Michigan Law Review Association
Stable URL: http://www.jstor.org/stable/1287445

Proof of criminal mens rea is specifically required. See Goldfarb & Kurzman, Civil Rights v. Civil Liberties:
The Jury Trial Issue, 12 U. C. L. A. L. Rev. 486, 496-506 (1965).
BLOOM v. ILLINOIS, 391 U.S. 194 (1968)

"That contempt power over counsel, summary or otherwise, is capable of abuse is certain. Men who make their way to the bench sometimes exhibit vanity, irascibility, narrowness, arrogance, and other weaknesses to which human flesh is
heir." Sacher v. United States, 343 U.S. 1, 12 (1952)

One idea is that in common law there is an analogy to sports. In a sports competition, when there is rough play, there is a "time-out" and sometimes a penalty throw, but the game outcome is not directly at stake. In court, equity power is to be used in the minimum amount necessary to protect justice. Thus, if the court could have substituted a "time-out" or more minor redo, that was what should have been done.

Kay Sieverding said...

David Brougham's bill to CIRSA itemized 7/29/03 "prepare first draft of motion to stay and /or enjoin" and 7/30/03 "confer with co-defendant's attorneys re motion to stay, enjoin..." but he didn't file a motion to enjoin. They claimed it was sua sponte.

In August 2003, I contacted the state division of insurance and asked for CIRSA's claims handling policies because I read in the CRS that they were supposed to be reported every year. According to Brougham's bill that he sent to CIRSA, on 8/07/03 he got a "telephone call from state insurance staff regarding plaintiffs' demands, case background etc."

One thing about governments, is that they don't have "slush funds". All the money has to be appropriated, so I wondered if CIRSA might be providing government officials with slush funds in return for being allowed to run a profitable insurance company that pays lawyers but only certain types of claims such as auto while it insures errors and omissions, a broad category of ways people can be injured. To me, firing a fireman on a charge that he took a cookbook sounds like an error and not having a good airing of the issues sounds like an omission.

Another thing about CIRSA is that in their reports that I read it said that they are required to use government fund accounting but the statute doesn't mention it. I went to a seminar on government fund accounting and specifically remember them saying that when there is a business that is operated by a government such as an airport, a book store, a ski resort, business accounting (GAAP) should be used so that the unit can be compared to other entities engaged in the same services. Private insurance companies do sell all the same insurance as CIRSA does. Also, the financial reports I got from the state insurance commission open records officer had something I had never seen before. They were signed only with the printed letters "KPMG". I had previously seen audit reports that had descriptions of the education, experience, and special certifications of who worked on them and then a photo copy of their signature but those 2000 and 2001 CIRSA financial reports didn't even say who the audit staff was.

Mark B said...

Thank you very much, Steven, for yet another incisive examination of the degree to which the witch hunt and show trial to which I have been subjected has nothing to do with ethics, and everything to do with the Colorado Supreme Court's willingness to abuse its powers to advance a criminal conspiracy to retaliate against me for my success against the City, and open criticism of "Judge" Blackburn.

As the Colorado Supreme Court's unlawful effort in early, 2007 to interfere with prosecution of Denver District Judge (then Denver City Attorney) Larry Manzanares for theft of at least one laptop from the courts in the misguided belief it could not be traced to him, and would therefore be useful for cruising porn sites (which, ironically enough, the Chinese comment above provides links to) shows, the Colorado Supreme Court doesn't give a rat's ass about ethics, or even criminal, violations committed by its friends, but will gladly abuse its powers to persecute the enemies of its friends.

Manzanares committed suicide once he was formally charged with felony theft. It was very tragic that he could not stand up under the kind of negative coverage to which I have been subjected for doing nothing other than getting an excellent result for my client. It certainly did not help that he was guilty as hell.

The very people responsible for the destruction of my reputation and career, including Colorado Chief Justice Mary Mullarkey, Cole Finegan and Michael Canges, rushed to his defense and castigated the media for exposing his crimes. The PDJ in my case, William Lucero, was a close friend of Manzanares.

Numerous articles about the Manzanares fiasco are available via Google search. His friends were right to stand by him. They are, however, the worst kind of hypocrite.

Mark B said...

Kay:

You offer some really interesting insights about the insurance system.

You also correctly note that the judge had at his disposal, and used to an excessive degree in order to prejudice the jury against me, a variety of weapons to keep me in line, and did so far more than was required.

The City did not move for mistrial, and thereby waived the right to a new trial as a matter of law, absent newly discovered evidence of fraud or tampering.

The judge had the right, indeed, the duty, to order a mistrial sua sponte, if he sensed any alleged misconduct by me had deprived the jury of the ability to decide the case fairly. He did not.

The City did not move for mistrial, and the judge did not order one, because it never occurred to either DURING, or even long after, trial that anything I did rose to the level of misconduct warranting a new trial.

It was only LONG after trial, when their appellate attorney (from the HUGELY connected firm of Brownstein, Hyatt, Farber and Schrek, which effevtively controls both the Colorado Dems and GOP), advised them that they had no hope of a successful judgment as a matter of law or appeal of the verdict, that they came up with the BS misconduct allegations.

It took Blackburn 15 months to get around to granting a new trial, which is bizarre, if my alleged misconduct was so obviously prejudicial.

Obviously, it was not.

During those fifteen months, the City was able to influence Blackburn (through means that will never see the light of day) to seize on the bogus new trial motion to undo the verdict as a favor to the City.

Given the City's massive power and ability to do big favors (big contracts, zoning/project approvals, etc.)for big players in both parties, there are myriad ways in which the people who appointed Blackburn could be persuaded to whisper a kind word about the City in his ear.

Anonymous said...

Follow the money. If the judgment is upheld, who pays -- CIRSA, the taxpayers, or another insurer. This might be in the Denver city council minutes and you can also send Denver an open records act request for its insurance policies.

Look at the predicate acts required for RICO.

Kay Sieverding said...

So what about the fireman and his rights under Rule 1 to a speedy and inexpensive resolution. What is he doing now -- going Pro Se or going on welfare?

I would certainly think that another lawyer would be scared off from representing him. Another lawyer would probably think that "the fix is in" and be afraid of retaliation if he represented the fireman.

Is he appealing?

"Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character, and right and justice should be administered without sale, denial or delay" Constitution Art 2 § 6

kay sieverding said...

Another insurance company that insured my action is TIG Insurance. I had thought they were out of business. But, I just searched the CO Division of Insurance for them again and found a listing claiming TIG sells medical and auto insurance, as well as credit insurance whatever that it, and a range of other insurance. I copied the only address listed in the Division of Insurance website for TIG Insurance, 2720 Lismore Drive FLOWER MOUND, TX 75022 into Googlemaps and used the aerial view to find out that it was a residence. The only telephone listed (469) 426-4380 is a cell phone.

In my lawsuit there was an itemization to TIG Insurance for defense of a lawyer and they are listed as selling "professional malpractice" insurance.