Nanine McCool says ... pretty much whatever she wants. Got a problem with it? Well - SPEAK UP!
Friday, July 17, 2015
Roadmap to Disbarment
It should be obvious by now that if someone is determined NOT to know the truth, then it doesn’t matter how much truth is put in front of her or him, the truth will be ignored.
But for anyone interested in facts underlying my journey to disbarment, here they are.
The underlying events dealt with allegations of abuse of two small children which gave rise to a custody case in Mississippi, an intra-family adoption case in Louisiana, and a petition seeking emergency relief, also filed in Louisiana. On July 20, 2011, Chancellor Deborah Gambrell, the Mississippi judge presiding over the custody case in Mississippi, issued an illegal order affecting custody and visitation of the children. The order was issued without prior notice to mom, and it was done in the judge's chambers so there was no record of what was said. Those two factors alone make is absolutely null, according to the U.S. Constitution and Mississippi law.
The order allowed dad to have supervised (by his mother who never believed that the girls had been abused) visitation in his home beginning on that Friday, just two days away, and then unsupervised visits in three weeks. The trial to address whether or not dad's rights should be terminated because of the abuse was also set, coincidentally about a month away, on August 16.
According to an email from mom's attorney, Gambrell allowed the Guardian ad Litem (the children's "attorney") to discuss the details of the case, and to give second hand information - otherwise known as hearsay - about the merits of mom's claims, that were set for hearing in a few weeks. Essentially, Gambrell held a trial in her chambers without mom present, took testimony that was not recorded, but was intended to influence her opinion against mom, and then issued a judgment that was unfavorable to mom, all without mom present or able to respond, and without a record so mom could not even know what was said so she could address it later, and couldn't get a record of it to show to the appeals court.
The email also suggests that Gambrell issued the order to punish mom for allowing her new husband to seek to adopt her girls in Louisiana. Although her attorney references "an appeal In Louisiana" there was no appeal pending at that time, just the adoption brought by mom's husband.
Judge Dawn Amacker, in Louisiana had stayed this adoption in March pending the Mississippi proceedings, but, there is no provision in the law that would allow her to do that. Instead, the law, La. Ch.C. art. 1253 says, in part, that the court shall hear the petition for intrafamily adoption within sixty days if there is no opposition or within ninety days if there is opposition. The court may extend this time for up to sixty days for good cause. At the time of the July 20, 2011 hearing, the adoption had been stayed, indefinitely by Judge Amacker. By staying the adoption, Judge Amacker was able to prevent us from putting on our evidence of abuse. That was the first time she wouldn't allow evidence.
When the oldest girl heard that she would have to go back to her father's house - someplace she hadn't been for nearly three years and the place where she reported having been abused by her dad - she expressed her fear, trepidation, and confusion in a journal. She gave the journal to her grandmother and asked her to take it to the judge. She also wanted to speak with the judge and tell her how frightened and confused she was.
Her grandmother took copies of the journal to the Guardian ad Litem and the police because the father's indictment for child molestation, according to her understanding, was still open. Mom also brought a copy to her attorney in Mississippi and to me. Mom asked her attorney to oppose the illegal Mississippi order and to take it to the Mississippi appeals court, but he refused.
When mom's attorney refused to fight the order, and in light of the oldest girls' distress as reflected in the journal, I drafted a pleading in Louisiana, asking the Louisiana courts to exercise emergency jurisdiction - something the law allows them to do in specific circumstances. I also sought relief for mom under other areas of law.
This pleading was very fact specific. Pleas for the courts to exercise emergency jurisdiction or give relief from domestic violence are always very fact specific. In other words, you have to be very specific about the reasons why you believe the court can, and should, intervene. If you put appropriate facts in your pleading, then the court has to give you a hearing to prove what you said. That's what "due process" means. If you can prove it, the judge still doesn't have to give you relief, but if she doesn't, you can then seek an appeal because all of your evidence goes into the record. Without a hearing to put on evidence, you cannot create a record and you have nothing to appeal.
We filed the pleading on August 4, 2011. In our pleading, we asked the Court to give us an immediate hearing, but if she declined to do so, we were entitled to a hearing within a brief period of time, no more than 15 days. Judge Dawn Amacker refused to give us an immediate hearing, and then, on August 5, 2011, she denied ALL relief without giving us a hearing at all , and dismissed ALL of our claims. Even though she clearly had subject matter jurisdiction over mom's effort to be protected and to protect her children under Louisiana domestic violence statutes, Judge Amacker denied relief under that statute as well under the guise that she lacked subject matter jurisdiction. She also denied relief - including the issue of whether or not she could exercise emergency jurisdiction - without taking any evidence.
How, exactly, can a judge deny all relief and pretend they are not biased when they make up their minds before they ever hear a shred of evidence?
I next sought relief from the appellate court, which also denied relief. Once the appellate court refused to provide relief, I submitted a writ application to the Louisiana Supreme Court, the court of last resort. While the application was pending, I helped my client draft and circulate online petitions, published on two different sites, urging Judges Amacker and Gambrell to “look at the evidence and apply the law” before making a decision.
Approximately 400 people ultimately signed the petition(s) and apparently many also called the judges’ offices to tell them they were concerned about the case. At some point, someone (not me) faxed the petition letter with signatures to both judges’ offices.
Ultimately, the Louisiana Supreme Court denied our application and thus, declined to hear the case.
Somewhere in this period, Amacker contacted Gambrell to tell her about the online petitions, and to encourage her to file a complaint against me. Although Amacker denies this, and insists that she called Gambrell only because she was concerned for Gambrell’s safety (Amacker deposition, pp. 25, 33-34), Gambrell was repeatedly asked during her deposition to state the reasons Amacker gave for contacting her, and Gambrell never once mentioned that Amacker expressed concern for her safety during her deposition. (See Gambrell depo, pp. 9-11, 17-19, 21-23, 45-48). According to Judge Gambrell, Amacker called her to direct her to the online petition, and then encouraged and helped her to file the complaint against me:
DUCOTE: So after you talked to Judge Amacker that one time on the phone where she called you and told you that there was this petition online, did you take any action?
GAMBRELL: Yes, sir.
DUCOTE: What were the first things you did after talking to Judge Amacker?
GAMBRELL: After I pulled up that online petition thing, I think I called the judge back and asked her was this permissible by Louisiana lawyers to do this type of thing, because here, it would not be.
DUCOTE: What did she say?
GAMBRELL: I think she indicated to me that she didn’t think it was permissible, but the only way I would know whether it was permissible or not would be to file a complaint with the Louisiana lawyers [sic] disciplinary board.
Gambrell filed the complaint against me on September 15, 2011, and cced Judge Amacker on it. I received notice from the ODC, with the complaint attached, shortly thereafter, and replied in mid October. What I wasn’t aware of, and wouldn’t find out for more than two years, was that on October 11, 2011, Amacker initiated contact with the ODC and followed up with a letter of the same date.
Judge Amacker admitted that she initiated contact with the Office of Disciplinary Counsel, but expressly denies that she did so to file a complaint against me. (Amacker’s deposition, p. 23):
MR. DUCOTE: Well, Judge Amacker, do you have any knowledge of — let me back up. Have you had communications with the office of Disciplinary counsel about Mrs. McCool?
DUCOTE: Did you contact the office of Disciplinary Council first or did they contact you first?
AMACKER: I contacted them first.
DUCOTE: Did you contact them to file a complaint against Mrs. McCool?
AMACKER: No, I did not.
DUCOTE: For what purpose did you contact the office of Disciplinary counsel [sic] about Mrs. McCool?
AMACKER: I was aware that a complaint has been filed by Judge Gambrell in Mississippi and similar conduct had occurred directed to me and also to the Louisiana supreme court. As a judge and an attorney in this state, I have — as I stated earlier – an absolute obligation with this type of conduct to report it to the ODC because there was a prior complaint filed. I was requested just to send in my information, whatever that might be, to them and that’ s what happened.
Pursuant to Judicial Canon 2(B), a judge shall not initiate the communication of information in any court or disciplinary proceeding, but may provide such information for the record in response to a formal request by a court or disciplinary agency official. Thus, Judge Amacker’s admission that she initiated contact with the ODC to provide information about an existing disciplinary proceeding would appear to be a clear violation of the canon.
I continued to appear in Amacker’s court representing clients during this period, unaware of her activity with the ODC. I kept telling myself that I was imagining that she was being especially hostile toward me and unreasonable toward my clients. I gave her much more credit than I should have.
On March 27, 2012, I appeared in Amacker’s court on a client’s case and was nearly arrested before the day was over. Amacker’s demeanor and conduct toward me – and rulings in the case – were outrageous. It was so bad that I expressed my concern about her conduct toward me in a complaint I filed against another attorney (my first) because of what went on in Amacker’s court that day. I didn’t find out for two more years, but the very next day, Amacker initiated contact with the ODC yet again, and sent another derogatory letter about me.
I was so concerned by her conduct toward me, in March of 2012, I wrote a letter to her, expressing my concerns, and in my formal complaint against opposing counsel, I also expressed my concern about Judge Amacker's conduct toward me to the ODC about the same time. Unbeknownst to me, the ODC was exchanging information with Amacker about me at this same time - within days of it - and yet, they didn't raise a warning flag; they didn't intervene; they didn't protect the public from Judge Amacker's bias. I might not have known what was going on, but the ODC sure did. And yet, it did nothing. And I strongly suspect that they dismissed my complaint against the attorney - another shining example of how "sacred" the profession is - because Amacker intervened without my knowledge.
About a month later, I received a second letter from the ODC, ostensibly related to Gambrell’s original complaint. Without the benefit of Amacker’s March 27, letter, it was impossible for me to know that the ODC was responding to her complaints, not Gambrell’s, but I mentioned my concerns in my response:
I find your request that I respond to Judge Amacker’s characterization of what happened, which is not reflected by the record, troubling. I find it even more disturbing that, rather than responding to accusations made by Judge Gambrell, whose conduct from the bench is unquestionably inappropriate, I am responding to accusations made by Judge Amacker.
The ODC never responded to my concerns, nor was I ever notified that Amacker had filed a complaint, even though she was voluntarily providing information to the ODC that had nothing to do with Judge Gambrell’s complaint. As the record of the formal charges will show, the ODC maintains to date that Judge Amacker did not file a complaint against me, though her known communications to the ODC were more numerous than Judge Gambrell’s, and give rise to a significant portion of the formal charges brought against me. Frankly, I don’t know how the ODC is not embarrassed by how it has been represented in these proceedings. The failure to fully disclose Judge Amacker’s participation in the complaint, especially in light of Canon 2(B) would seem a clear violation by its own prosecutor of Rule of Professional Conduct 8.4(f):
It is professional misconduct for a lawyer to … Knowingly assist a judge or judicial officer in conduct that is a violation of applicable Rules of Judicial Conduct or other law …
And beyond that, it just smells bad. Why weren’t Amacker’s communications treated as a complaint? Why wasn’t I notified from the outset of her participation? Why all the subterfuge?
In any case, the second letter from the ODC, along with Amacker’s conduct toward me in court, prompted me to file motions to recuse her in the two cases most obviously impacted by her now obvious bias toward me, Keister and Maurer. Maurer was the case that involved the online petition, which Amacker had continued to preside over during this period while she was surreptitiously feeding derogatory information about me to the ODC.
Judges must recuse themselves in very specific circumstances. La. CCP. art. 151(A):
(1) Is a witness in the cause;
(2) Has been employed or consulted as an attorney in the cause or has previously been associated with an attorney during the latter’s employment in the cause, and the judge participated in representation in the cause;
(3) Is the spouse of a party, or of an attorney employed in the cause or the judge’s parent, child, or immediate family member is a party or attorney employed in the cause; or
(4) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings.
Note number 4. Items 1-3 are objective, and usually readily apparent. Not so item no. 4. That one is subjective and up to the judge to decide. This is why it is very hard to get a judge removed from a case for bias. If the judge denies the bias, it is nearly impossible to prove the bias. In this case, based primarily on the letter from the ODC, I thought I had a pretty good shot at getting Amacker recused from my cases but initially, there certainly was no guarantee. This put me in a really awkward position. The conflict wasn’t with my clients, it was with me, but the bias was still affecting them. I had to give them a choice: 1) Stay in Amacker’s court with me as their attorney and likely lose; 2) fire me and hire a different attorney; 3) file a motion to recuse her and pray we’re successful because if we’re not, boy will we have really pissed her off then.
Both Maurer and Keister opted to try to recuse her so I filed separate motions in each case almost simultaneously, and surprisingly, Amacker admitted her bias and voluntarily recused herself. Now, this is one of those things I’ve been accused of making “blatantly false statements” about. In these first two motions, I described the facts I believed evidenced her bias, as I was required to do by law, and then attached an order that provided Amacker’s two options under the rules: 1) voluntarily recuse herself; or 2) decline to recuse herself and set the matter before another judge for a hearing. In both instances, she lined through option number 2, and hand wrote into option number 1 additional language indicating that she was “voluntarily” recusing herself because she was a potential witness in the disciplinary proceeding pending against me, out of an abundance of caution, and to avoid the appearance of impropriety.
In law, if you allege something in a pleading, and the other party doesn’t deny it, the allegation is considered admitted. Amacker didn’t deny anything that I alleged in my pleadings to recuse her. She took the time to line out option 2 and hand-write her reasons to recuse on the order, which included an admission that she was a potential witness in the disciplinary proceedings pending against me, but didn’t deny, or line through, a single allegation in the pleading. In my legal mind, that’s an admission.
I also thought it was obvious that she had an obligation to go ahead and, on her own motion, recuse herself from all of my cases. Inexplicably, she didn’t. This forced me to have the same awkward discussion with another client, and then yet another a few weeks later, about the three options: keep me, fire me, or recuse her. Both clients opted for recusal. In both instances, Amacker’s refusal to recuse herself on her own motion forced my clients to bear the burden of recusing her. In both instances, I put in my motion that she had “expressly admitted extreme bias” against me in prior instances, and the same reasons for her recusal applied in the instant case. In each instance, Amacker opted to recuse herself, lined out option 2, and made her handwritten note in option 1, giving her express reasons for recusing herself, but did not object or deny any of the allegations I included in the motion. Admission. Admission.
Excellent outcomes in both of those cases, by the way, once we got them out of Amacker’s court. A complete 180 in one and, I think, the difference between life and death in the other. Judge Devereux, in both instances, listened to the children and completely changed the direction the case had been going in based on what the children said, something Amacker had refused to do and still never does.
But I digress. Fast forward about 6 months and I file yet another motion to recuse Amacker from a case. This time, for the first time, she does not voluntarily recuse herself. This time, she chooses option 2, and sets the matter for hearing before another judge. Nothing has changed in the ensuing 6 months. The complaint is still pending against me; she has made no effort to clear the air between us. There is no rational explanation for her sudden refusal to voluntarily recuse, and I was dumbfounded.
It was only after the formal charges were brought against me almost a year later that I was able to discover that after I filed the motion to recuse her on January 3, 2013, Amacker initiated another letter to the ODC, on January 22, 2013, complaining (but not filing a complaint) that I was making false statements in my motions to recuse her. Keep in mind that I don’t know about this letter at the time, and that she’s a judge, who has the means and the authority to haul me into her court at any time to answer to her charge that I’m making false statements in motions I’m filing in her court. Yet she doesn’t resort to her considerable power to immediately put a stop to my shenanigans, but essentially whines about it to the ODC, without cluing me in at all.
My client, in this instance, did not want to deal with the delay and hassle that the recusal was causing and opted to hire another attorney. Completely understandable, but this episode was the last straw for me, and I filed a complaint against Amacker with the Judicial Commission, Office of Special Counsel. By the way, according to Amacker and the ODC, I am not allowed to say the word “complaint” in relation to Amacker. Period. It’s the “Cee U Next Tuesday” word for the legal community. So stand by for another complaint to be filed against me. In any case, the Office of Special Counsel ultimately dismissed my complaint against Amacker, along with another I filed just this year based on her failure to recuse from my cases as it is now firmly established she has an obligation to do.
In case the Supreme Court is listening, it is very very hard to take these oversight bodies seriously when they are so willing to ignore blatant failures of judges to abide by the law, or discipline attorneys for behaving like bullies, even refuse to demand their own prosecutors abide by the Rules of Professional Conduct, but will pursue me and my license for standing up for a client and demanding that judges look at evidence and apply the law before they make a decision. Very very hard.
I filed my first complaint against Amacker in April 2013. I posted the substance of it in my bolg, “False and Misleading.” Less than a month later, on May 21, 2013, the ODC sent me another letter ostensibly in relation to Gambrell’s complaint from a year and a half before, but in fact incorporating Amacker’s complaints – that aren’t complaints – from her correspondence to the ODC back on January 22, 2013. Just a few days later, I received 14 or so signed orders from Amacker voluntarily recusing herself, on her own motion (sua sponte) from any case in her court in which I was attorney of record. The timing of all of this – her (secret) letter to the ODC on January 22, my complaint in April, followed very closely by a letter from the ODC in May, essentially countering my complaint against Amacker, followed by Amacker’s sua sponte recusals from ALL of my cases just a few days later – stinks. It has the feel of a set up. At least to me.
Because of the smelliness factor, I responded to the ODC’s letter by – politely – demanding that it disclose to me the extent to which Amacker was involved in the complaint proceedings. The ODC never responded to that letter and the next correspondence from it was notice of the Formal Charges which came, stinkily enough, within a week of my formal announcement that I would run for Amacker’s seat.
One of the great ironies of these proceedings is that I was repeatedly accused of making “false and misleading” statements that violate the Rules of Professional Conduct, yet the formal written charges against me were rife with false and misleading statements, and the Supreme Court's decision get's even less right, and makes up quite a bit more.
I am baffled as to how anyone could reasonably conclude that, in light of what Amacker had admitted to doing,and what Gambrell has described she did, what the ODC Prosecutor did, and considering all of these facts, which are still not all of the facts, it was my conduct and my character that the Committee believes poses a threat to the administration of justice. How can that recommendation be taken seriously by anyone who genuinely cares about justice?
In deciding that I had violated the Rules so egregiously that it was necessary to disbar me to protect the public from me - discipline is not supposed to be punishment - the LASCT failed to address so much truly disturbing conduct of the judges and the ODC attorneys that I can only assume that the point all along was to punish me. The rendition of the facts incorporated into decision to justify disbarment is so far removed from what actually happened, and what is actually in the record, that I barely recognize it as the same case, and I was there.
The decision to disbar me is a travesty but not for me. It's wrong, it's unfair, and it forces me to rethink my future, but it's not a travesty in my life. The travesty is in the practice of law and the increasing emphasis on deferring to judges rather than representing clients; in the erosion of our constitution by judges who have ensured that there are no meaningful checks on their power, no matter their authority; on the ability of people in this country to access justice, even when they can hire an attorney and get into court because there is no justice to be found in the courtroom. The travesty is in the gradual restructuring the 1st Amendment so that people increasingly believe that if a judge, or a police officer for that matter, tells them to shut up, they MUST shut up.
You don't have to care about me to care about this case. You just have to care about this country and your own freedoms.
"The germ of destruction of our nation is in the power of the judiciary, an irresponsible body - working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over the other, and will come as venal and oppressive as the government from which we separated." Thomas Jefferson.