Friday, December 9, 2011

Judge Donald and the Stephens Dynasty

You couldn't make this stuff up! At the Wake County Courthouse in Raleigh, North Carolina, there sits the Senior Resident Superior Court Judge Donald Stephens. Frequently, depending on rotation, there also sat another judge named Ronald Stephens, the Donald's identical twin brother, who has since given up the judge game. They look just alike. They sound just alike and having appeared before both of them, I noticed something else. Unlike judges like Baddour or John R. Jolly Jr., both the Stephens boys usually took the time to read the entire motion before them, which is kind of a big deal when you've taken the time to cite the case law and include the relevant facts.

Unfortunately, that's where the similarities ended. Judge Donald tends to disregard the law when it suits him and his demeanor over the years has become, well... de Meaner. (separate story #1) (separate story # 2)

He's never met a motion to quash access to information that he didn't love and if it comes down to a choice between the First Amendment and the other side's request to deny you that're out of luck.

Case In Point: In a recent case Judge Ronald (that's Ronald with an "R") heard a Motion for Criminal Sanctions. The Plaintiffs' witness was lying so badly, Judge Ronald tossed the case out of court without even needing to hear the Defense's case.

After that, the Defendant, (Now became the Plaintiff) sued for malicious prosecution. The Plaintiff (confused yet?) also posted the case on a blog. The Defendants went crazy and asked Judge Donald (King Donald) to hold the Plaintiff in Contempt for posting the information.

However, the Plaintiff cited North Carolina General Statute 7A-276.1, which bars the courts from entering orders which restrict publication or broadcast of testimony, evidence, argument, rulings, etc., that occur in open court. Such an order is declared by the statute to be void and of no effect, and no one may be held in contempt for violating it.

However, Judge Donald, decided, the law didn't actually apply to him or that "HIS" orders would be void and of no effect; and ruled in favor of the Defendants.

To provide some cover though, he invoked the power of the judge to control extra-judicial comments and issued a "gag" order on both parties, so as not to "presumably" effect the jury pool in the purportedly pending case.

In the lead up to the case, the Defendants filed numerous motions claiming that the Plaintiff was continuously breaching the gag order and actually asked Judge Donald to throw the Plaintiff in Jail! The Plaintiff informed Judge Donald that many of the internet posts had been posted years earlier, some by others following the case and some on blogs where the bloggers had lost interest in the blog and abandoned it, making removal of the posts, virtually impossible.

Judge Donald's response to this information? He angrily stated "You remove it all or you can figure out how to do it from a jail cell...! Yea, I know...crazy right? He either doesn't understand how the blogger sphere works or simply doesn't give a crap.

Not to go down without a fight, first the Plaintiff removed everything that he could, but then he filed a Motion to Assert Right of Access to public records. The strategy was simple. If the Plaintiff was saying this information was public record and the judge had no legal right to punish anyone for posting the information, BUT Judge D was saying it was not public information (actually he never said it one way or the other. He simply pretended not to hear the issue) then this statute would basically force the judge to hear evidence that the information was public record and rule accordingly. Pretty simple right?

The hearing was to be on a Monday in November 2009, I believe. The Plaintiff showed up with the evidence that all the information in question was public record. The Defendants showed up with a signed order from Judge Donald "Wellington Alowishus Beauregard"Stephens, the 3rd (not really his name. LOL) that said the Plaintiff already has access to the records in question and there was no need for a hearing on the matter. Cut. Print. File. Let's go to lunch; and shut that dog up!

Now if you are up on your Civil Law 101, you have already identified some troubling aspects of this situation. Number 1: When and How did King Donald meet with these guys to hear the motion, if the Plaintiff wasn't invited to the party? Meeting with one side without the other is ex parte communication and clearly in violation of the Canons of Judicial Conduct.

Number 2: Pursuant to § 1‑72.1. Procedure to assert right of access. The court (Judge D) shall (that's "shall" with a implicit "MUST" attached to it) cause notice of the hearing date and location to be posted at the courthouse where the hearing is scheduled. The court shall rule on the motion after consideration of such facts, legal authority, and argument as the movant and any other party to the action desire to present. The court shall issue a written ruling on the motion that shall contain a statement of reasons for the ruling sufficiently specific to permit appellate review.

However, in this case, the hearing was apparently held in the hallway of the courthouse, Judge Donald's chambers, his house or the Dunkin Donuts down the street! Either way, the Plaintiff was not present, and therefore had no opportunity to present facts, legal authority, or argument, as the statute mandates.

And Number 3: His one sentence ruling flies in the face of the statutory provision that his ruling contain a statement of reasons for the ruling "sufficiently specific to permit appellate review." The Plaintiff was found in Contempt for publishing these public records and immediately appealed the ruling. Take a guess who sits on the North Carolina Court of Appeals? That's got it...Judge Linda Stephens, the queen at the side of King Donald.

Now, there is no evidence that Lady Linda influenced the ultimate dismissal of the appeal....that was left to her colleagues on the Court of Appeals, but it begs the question: If your life, your freedom or even your money is on the line, would you feel comfortable betting on the Stephens Dynasty for justice? We'd like to believe our judges are all sent down from a Frank Capra movie to do the right thing in the face of having to rule contrary to family, friends or political pressure, but we all kinda know that isn't true of most human beings. Most people just aren't that stoic.

So even without the constant verbal bashing of litigants, bullying of persons before him or as in this instance, a question as to if he willfully violated the law and the Canons of Judicial Conduct to help out one side over the other, can we afford to knight one man with such far-reaching power and simply assume a case that began in his twin brother's court, metastasized through his court and ultimately was decided by his wife's court, will absolutely be decided absent extra-judicial forces? I'll answer that for you...Hell No!

Oh, by the way... want to know what happened in the end? After the Court of Appeals dismissed the appeal on technical grounds (most appeals die this slow judicial death) the Defendants moved to have the Plaintiff jailed for publishing the records that he had no way of getting removed. The stage was set for a hearing that would determine if the Plaintiff would go to jail. (and the fallout afterwards...No standing on the courthouse steps with Barry Scheck, handing out verbal absolution for this guy...)

Then the Plaintiff realized that the Defendants had also violated the judge's order and posted even more egregious information about him, including his medical information. So he filed a motion to have them held in contempt also. The result? After thousands of dollars, hundreds of documents, several subpoenas, a few depositions and a dismissed appeal; when the parties met at the hearing, the Defendants asked the court to drop the whole thing and the court found the issues on both sides to be "moot." Not to be confused with "Moot Court".....well actually...strike is. I guess the Defendants', and more importantly, the court's, outrage was decidedly diluted when faced with the double-sided blade on the sword of justice, that would not only cut the cotton pickers, but the cotton growers too!

Why is this important? If your neighbor kills his wife and dumps her body in your back yard, one would think "nice try...", but even elementary forensics and a judge paying even half attention to the case would interject common sense into the process and you would have nothing to worry about...right? Wrong!

Judge Donald Stephens, Judge Baddour...Jolly Jr. and a few others decide many of these issues when they see you walk into the courtroom. The legislature in North Carolina passes these basic protections for the people, but if a judge is willing to simply disregard the law, based upon race, class, position or legal representation; then the law means nothing.

After reading this article, mentally calculate the hubris it takes to simply disregard and violate a fundamental First Amendment based law in a case that arguably began as a simple review of an administrative hearing. Now consider the thousands of rape and murder cases that Judge Donald has ruled on.

Ask yourself, if the King would blatantly use his position to improperly support the litigants representing "the state" (that's another issue...stay tuned) when the stakes were no more serious than judicial review of an administrative hearing, what about the innocent defendants over the years, who, faced public outrage and a mob mentality need for swift justice for a rape, child abuse or murder, had to face the King, armed only with a public defender and that unfortunate black tint to his skin? How many of those people are sitting in prison right now?

Judge Stephens asked me once in open court, "If you think this is racism, this case was partly heard before Judge Stanback (Big Black retired judge), is he racist too?" Then he went on with a big smile as he exclaimed what a great judge Stanback was and how he was just one of the coolest people he's known over the years....yada, yada, yada....

Putting aside his obvious cliche "I'm not racist. Some of my best friends are black" example, he was shocked when I pointed out that "yes", Judge Stanback was racist also. If you read his appellate cases or sat in his courtroom, you find that Standback was rude, curt and dismissive to litigants and just like Judge Baddour, he frequently (always) came down harder on black and Hispanic litigants; and did so as a"tip of the hat" thanks to the old boys club. They are actually tougher, to deflect charges that they may be softer on black litigants. It's why President Obama, can't be seen at too many "black" events. "Count the number of photos you've seen of Obama with a majority of black people in the photo).

Judge Stephens was kinda shocked at my opinion of Stanback ( guess he had been using that "get out of Harlem" card for years) and he was even more shocked and amazed when I brought up that when he (Stephens) was presented with that study that showed his Wake County judges were setting higher bail for black defendants accused of the same crime as white defendants, his remedy was woefully inadequate. And he got absolutely pissed when I said "Take a look at the calendar call in Wake County Civil Court! With almost no exceptions, the attorneys in attendance are white...some female...but mostly white males. Is it that black attorneys are more inclined to represent petty criminal cases with much smaller paydays; or is it that they have discovered that in Wake County, if you have a black litigant or a black attorney...YOU-ARE-GONNA-LOSE!?" Stephens decided these comments being place on the record, might be better abandoned; and changed the subject. Pity. I was going to ask him how many times his good buddy and great colleague, Judge Stanback, had been to his home... I'll bet ya a meal at Golden Coral, it never happened!

They say a good lawyer knows the law....but a great lawyer knows the judge! In Wake County, there are very few truly "Super Lawyers." But there are lawyers who win every time because they get the case heard before the King! That's kinda super for their clients... Not so much for the rest of us.

When the Motion for Sanctions came before Judge Donald, to determine if Jack Nichols had stolen evidence from the courthouse file, he held the hearing, read the evidence, realized Nichols was guilty and quickly turned the case over to Judge Baddour. Now D is "THE" man in charge of the Wake County courthouse, but he didn't want to take ANY part of this issue because of WHO the accused was and more importantly, WHO the accuser was; and simply passed the ball to Baddour, who has no problem with pretending he didn't understand the issue...feigned confusion and dismissed it. Now the issue is before the State Bar. It will be interesting to see what THEY do with this political football. They know they attempt to protect Nichols at their own professional peril.

Judge Ronald has retired. Judge Donald, like tobacco in North Carolina, is still King. The 2012 judicial election cycle is upon us. The King may sweep to re-election as in years past. I mean, hell, he's got lawyer and politician money on his side. We only have his record and the truth. Yes, he may win re-election, but this time...Not under the radar! Stay tuned...


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