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COURT OF APPEALS Adrianne Phillipson Murtari, -- against -- John Murtari, The following is supplied, per the Court's request, as a detailed exposition of the
points in the record where issues bearing on the Constitution were raised in the Record on
Appeal. Much of this is excerpts from the Appellant's Brief. When filing the original
Jurisdictional Statement I supplied the Court with TWO copies of all
Briefs filed with the Appellate Division. This package also includes a copy of Volume
I & II of the Record (copies of Orders, and all Exhibits). I do not have copies of
Volumes III & IV of the Record which contain the actual Trial Transcript and are quite
large. One copy is at the Clerk's office in Onondaga County, the other is filed with the
Appellate Division in Rochester. I do have an electronic copy of the transcript, in text
form, on floppy disk if the Court desires access. In the paragraphs which follow I attempt to address each of the Constitutional Issues I
reported in my 500.2 statement already filed. I have include extensive excerpts from Trial
Testimony. Attached to this Supplement I have included the text of an Affidavit supplied to the Appellate Division, where a motion is
currently pending to reargue the Appeal. It addresses some of the issues raised in their
Memorandum on the Appeal. Justices, I am "over my head" at this level. I hope you will have the time
to look at what transpired here (and what happens so very, very often in Court's across
the State). I hope the number and extent of deviations from a proper Trial will offend the
conscience of the Court. I respectfully submit to the Court this case offers a unique opportunity to evaluate
how the present system works. Unlike many other cases there was an extensive trial, and a
large amount of eye witness testimony, and also video-taped evidenced. The Appellant
argues this proceeding is a prime example of why our founders established the right to
Jury in the Constitution: To protect citizen's against unjustified intrusion by the State
in their lives. To protect family's from being at the mercy of a few experts who base
their opinions on personal preference and not the evidence. To protect a person from
entering a Trial proceeding where the outcome has already been decided before even the
first witness is called. DENIAL OF REPRESENTATION OF COUNSEL TO DEFENDANT In numerous requests the defendant requested representation by Counsel, with the
suggested method being a "pool" of funds which both parties could access. There
is clear precedence for a "level playing field" between spouses. Instituted to
protect a financially destitute spouse from being "raped" by the other spouse in
a proceeding where they could not afford attorney's, expert witnesses, and the like. This
is directed by DRL 237 (a), and in perhaps the "clearest" summary, Dikranian
v. Dikranian 263 AD 128, found that when a spouse assails the validity of a marriage and
seeks to destroy a relationship which has existed between parties for several years, the
other spouse should be afforded means of defending themselves in such action. Financial Condition of Defendant On numerous occasion throughout the proceeding Defendant requested funds for Counsel: Pre-trial motions heard Sep 12, 1995 (R-110), Nov 21, 1995 (R-154), during break in Trial Sep 10, 1996 (R-282). These requests were denied on every occasion. Probably the most severe example of this was during the closing of trial, Oct 2, 1996 (T2-214), when Defendant had given detailed testimony (T2-27 thru T2-99) to his financial state and discussed his Statement of Net Worth (R-626) and a draft of his 1995 tax return (R-641). Examination by the Court and Opposing Counsel failed to show any other assets, even after complete discovery. The defendant even showed that the Plaintiff had at least $20,000 in funds that were transferred from her accounts to another man (T1-358) and not accounted for. Q Mrs. Murtari, in a timeframe from October 1993 until November 1993, in two months, you wrote four checks totaling, $6,500. Do you recall the purpose of those expenditures or who they were to? A I think those are the series of checks I wrote help a friend who started a coffee shop and I managed with my, arranged with my parents to lend the money to this person. Q What was the name of this individual? A Taskale. Q Mrs. Murtari, were these, is your testimony these were a loan or a gift to Mr. Taskale? A It's a loan. Q A business loan? A From my parents. Q Did you recommend to your parents that they give Taskale this loan? A I did not recommend but I discussed it with them. Q Had your parents ever met Mr. Taskale prior to loaning him this money in person? A No. Q Did your parents, are your parents in a formal business relationship with this individual? A No. Q Mrs. Murtari, in the timeframe within two days starting July 28th 1994, ending July 29th 1994, you wrote a series of three more checks totaling fourteen thousand dollars. Who were those written to? A I think that's part of the series. Q Continuing? A Continuing. Q Can you testify to what was the total amount planned on giving Mr. Taskale? A About twenty thousand dollars. Q And Mrs. Murtari, in the timeframe from August 1994 to October 1994, there were four more large checks totaling to approximately eighty-five hundred dollars. Do you recall who those were to? A No. Q Now you said that the total note to Mr. Taskale was twenty thousand? A Around twenty thousand. I don't remember the exact number. Q These totaled expenditures would be twenty-eight, twenty-nine thousand dollars, could the loan have been that amount? A I don't remember. Q Did your parents execute a formal note on this loan? A Yes. Q And has Mr. Taskale been repaying this loan? A I don't know. Q Did the formal note call for repayment? A Because my parents don't speak English and he understand much, I know I was, I was there to write the letter. And I don't recall right now exact number but its after three or four years he needs to repay with interest. MR. MURTARI: Your Honor, due to my lack of preparation, that completes my ability to cross-examine on financial matters of this witness. There were canceled checks (R-647), along with earlier testimony from the Plaintiff,
just prior to the filing for divorce, and NOT reported on her Statement of Net Worth
(R-383). The defendant again made motion for counsel at the end of trial, and this was
still denied (T2-214). DENIAL OF JURY TRIAL It was a well known fact to both parties that Mr. Murtari wanted a Jury to decide the
issues of grounds. The knowledge went so far as to be used by the plaintiff as another
accusation against Mr. Murtari's conduct. In early March the defendant received a response
to written interrogatories from the Plaintiff and also a notice that a Note of
Issue(R-265) had been filed on February 21st. He immediately wrote a letter to
the Court (R-200), dated March 5th, and expressed his desire for a Jury. A
motion to Vacate the Note of Issue was filed by the defendant on March 11th
(R-201). Green v. Siben 480 AD2d 923, found that late filing of Jury demand was excused based
on factual showing that earlier waiver of right was result of inadvertence or other
excusable conduct indicating lack of intention to waive such right. In a similar vein,
Fryer v. Connor 152 AD 249, found that if failure to file timely notice was due to
inadvertence and correction of such error would not prejudice plaintiff's right, defendant
would be permitted to serve and file a demand for jury. Honest Mistake The defendant simply did not understand that filing a Jury Demand did not indicate
readiness for trial, but was just a notice. The defendant wanted the Note Of Issue
vacated, and was under the mistaken impression that to file a Jury Demand would be
indicating he thought the matter was ready for trial. The Judge delivered a written order denying the request on March 27th (R-265); however, Mr. Murtari did still file the Jury Demand on April 2nd (R-268), and on the first day of Trial requested that a jury be drawn (T1-5), this was also denied: MR. MURTARI: Your Honor, I would ask that we delay and have time to impanel the
jury, Your Honor, it was, it's been clear I think all during this proceeding, the
plaintiff has been well aware that I desired a jury trial. I think when the note of issue
was filed you know my letter to you, I noted my desire is for a jury, and that some of
those follow-up affidavits, Your Honor, technically I screwed up by not filing that jury
demand. Since then it's been done within a week of your decision not to vacate, I did file
the jury demand. You know I am here disputing the grounds. I am not countersuing for
divorce. That's a significant right for me to have that heard by a jury. And you
know, I am asking the Court to please reconsider that I know I have got your order we had
previously made a decision. THE COURT: We have already ruled on that. Unless the other side consented I can't
change that. So that motion is also denied. We can proceed. REPORT OF DR. BLACK ENTERED INTO EVIDENCE WITHOUT HER TESTIMONY OR
OPPORTUNITY FOR CROSS-EXAMINATION Dr. Black, Court appointed Psychologist, did generate a report but was not called by
the Plaintiff to testify, in questionable preference to Dr. Hoenig. It must be fair to
assume that Plaintiff preferred the testimony of an expert who had never met Mr. Murtari,
versus Dr. Black who could have been subjected to length cross-examination regarding her
conduct and her report. The rules of evidence do allow an unfavorable inference to be
made when a party fails to call a witness under their control, who should have been
expected to deliver testimony favorable to their cause. Introduction of Report into Evidence During trail, opposing Counsel produced the report of Dr. Black and attempted to enter it into evidence (T1-81). Defendant objected on grounds the Doctor was not available to testify under cross examination. The objection was overruled. THE COURT: Well -- you have seen Dr. Black's report have you, Mr. Murtari? MR. MURTARI: Yes, Your Honor, I have seen it and I object to it being introduced into evidence because of the problems with Dr. Black and myself that started on the very first session that you know we addressed in motion I brought before you. That I wanted another psychologist, that there were some heated exchanges between myself and the doctor in correspondence and it's simply not objective, this is different than the draft. The doctor has refused to provide me with that draft of the report. And without cross-examination, Your Honor, I just very prejudiced evidence here without putting her on the stand and cross-examining her about her methods. MS. WALSH: Your Honor, I believe as the Court will remember that we picked Dr. Black to do the evaluation of everybody. And that based on that, I believe she is the professional chosen by the Court, I believe under the new matrimonial rules her report can go in, the Court can use it as it wishes. Mr. Murtari is free to cross-examine her if he wishes to subpoena him but I do not believe that I have the burden. Also, Your Honor, Dr. Black has not been fully paid for her services and I am very, because Mr. Murtari has not paid for her, his half and I am very reluctant to use her time so I have chosen to base mine on the court. THE COURT: It will be received. INCOMPLETE DISCOVERY/DENIAL OF MOTION TO VACATE NOTE OF ISSUE
(DUE-PROCESS RIGHTS) Premature Filing of Note of Issue The defendant had served written interrogatories on the plaintiff in February 1996. In early March, 1996, the defendant received the response on the interrogatories (R-200), along with notice that the plaintiff had filed the Note of Issue (R-266) on February 21st. The defendant had no time to frame a response. In his motion to Vacate the Note of Issue, 11 March 1996, (R-201) the defendant was concerned about numerous discrepancies in the reply to interrogatories, and was also concerned that he needed more time to complete discovery. Even before the motion was heard, the Court had already issued an order, March 7th, scheduling a trial date of April 11th (R-272). In an order dated April 5th, the relief was denied. The defendant had very little time to complete trial preparation. Kantor v. Kantor 474 NYS2d 842 found that a statement of readiness is inherently
defective where it is filed before the opposing party has had reasonable opportunity to
determine whether the filing party's answers to interrogatories are adequate and to move
for corrective relief if that is not the case. Concealment of Counseling History In requesting a divorce based on the "cruel and inhuman" treatment of her spouse, plaintiff raised the issue of her mental state and placed it squarely at issue. The complaint is full of standard "boiler plate" alleging such a monstrosity of conduct throughout the marriage by the defendant that it was a course of conduct, and that she can not even recall every incident (R-40); however, there was a disturbing paucity of objective evidence presented to match the allegations at trial. The couple had a history of counseling; however, to prove her point the Plaintiff calls to the witness stand a Psychologist which she alone had begun visiting in February of 1995, in the months prior to filing for divorce, and in the same time frame as the start of a Family Court Action that had been brought by her husband (Exhibit 2, R-331). Opposing Counsel failed to call the prior counselors to the witness stand, given the complaint, they certainly would have been expected to testify to the continuing mental torture this poor woman had received at the hands of her spouse. Refusal of Plaintiff to Authorize Release of Counseling Records The defendant requested the plaintiff complete authorizations to release these records on two occasions:
McKenzie v. McKenzie 78 AD2d 585, found that when a plaintiff has placed in
controversy in an action her physical and mental condition which she relates to her claim
for relief. The defendant is entitled to make a copy of her hospital records (CLPR 3121;
Wegman v. Wegman 46 AD2d 908). Opportunity for Independent Expert Evaluation In an early motion the defendant was concerned about demonstrated bias by the Court appointed Psychologist, Dr. Black. After their first meeting, he wrote a letter to the Doctor on October 26th, 1995 (R-16). He apprised her of some additional persons she might wish to consult with, and also expressed his concern over remarks she had made during their first meeting:
He asked that future sessions be recorded to avoid any potential for ambiguity about
what happened. Dr. Black first rejected any such suggestion out of hand, stating it was
quite an unusual request. In the meanwhile the defendant had checked with other
Psychologists and discovered it was not considered abnormal in this type of evaluation
(R-156). A Motion was then submitted to the Court on November 13th, asking for
appointment of another individual (R-154). The relief was denied. Doctor changes recommendations between DRAFT and FINAL report In late January, 1996, Dr. Black briefed all parties, including the Law Guardian, on the contents of her report (which she called a DRAFT), there were significant differences in the content and recommendations made when the final report was released a few weeks later. The defendant was quite concerned the changes were due from influence by the Law Guardian (R-209). At one point Doctor Black had sent the defendant two notes (R-216/217) stating she would not release her results to another Psychologist for peer review. After pressure from the other psychologist, she agreed to release the information (R-218). After the release of Dr. Black's report the defendant needed more time to consult with another expert and to have another review done.(R-201) These requests were also denied. Given the documented behavior of Dr. Black, to which their was no dispute to factual material included in defendants affidavits, better discretion would have been to allow another evaluation. This same report was accepted by the Court into evidence at Trial, without Dr. Black
being made available for cross-examination (documented elsewhere in the Appellant's
brief). BIASED AND EXTRA-JUDICIAL CONDUCT BY LAW GUARDIAN Mr. Joseph Lupia, the Law Guardian assigned to represent Domenic, manifested a clear
pattern of intentional bias against the defendant. What might have begun as just a
"mistake" after writing a too hasty preliminary report, clearly turned into a
case of a Law Guardian who stopped looking for objective evidence to best represent the
interests of his client - and began to selectively report information. This was to the
severe detriment of young Domenic being able to maintain regular contact with both parents
and also led directly to the prolongation of the proceeding. If Mr. Lupia had based
his recommendations on direct observations and credible evidence, as 4th
Department Guidelines call for, the whole matter would have probably been settled. The defendant feels a review of the record will document behavior that simply does not
pass a "reasonable person" test, nor does it comply with the guidelines the
Fourth Department has established for Law Guardians. It was also disturbing to find the
Law Guardian felt at liberty to include new factual information in his post trial report
to the Court. Early Recommendation to Reduce Contact Between Father and Child Mr. Lupia submitted a report (R-193) to Court just shortly before a Motion appearance by all parties on November 21st, 1995. The Guardian makes this direct report of his observations of the parents: During each of the home visits the law guardian observed the parents as they
interacted with Domenic. Both parents were very attentive of Domenic's needs. It is very
clear that both parents are well educated and work actively to challenge their child to
achieve higher abilities. Domenic converses well with both and appears to enjoy both
parents company. He is well behaved in both homes. I saw no problem in either parents
ability to care for Domenic. In this report the objective facts he reports present no clear "favor" to
either the plaintiff or defendant. Mr. Murtari willing to share physical custody. His report also records the fact that Mr. Murtari is willing to share physical custody with Mrs. Murtari, suggesting a schedule that could give parents equal time with the child during the week. While Mrs. Murtari wants the present "visitation" schedule reduced, which had Mr. Murtari and Domenic together 8AM - 1 PM Monday-Thursday, and alternating weekends. He records that he only visited with the defendant and plaintiff, and spoke with no other witnesses; however, in his closing paragraphs he states a devastating recommendation, notes in []'s inserted: As a result of this investigation, the law guardian has determined that John Murtari
seeks to dominate and control his son. Mr. Murtari cannot accept the way that Mrs. Murtari
is attempting to raise the child. [he credited allegations made by Mrs. Murtari and
her attorney] He repeatedly seeks to dominate and have the last word on all issues
involving the child. The need for control is also apparent in his refusal to complete the
family assessment which was started with Dr. Lois Black [record shows the defendant
never refused, but did make motion to Court to have another appointed. When that was
denied, went through with the assessment] … The Law Guardian has concerns that if
Mr. Murtari were to be awarded custody of Domenic, then he would seek to exercise total
control over Mrs. Murtari visitation [just prior Mr. Lupia had noted that Mr. Murtari
was willing to share equal time with child between parents, Mrs. Murtari wanted the very
reduced schedule]…. Instead of weekday visitation Mondays to Thursdays from 8AM to
1PM it is recommended the visits be extended to either all day or even possibly overnight
but that they be reduced in number. His billing record (R-220) confirms that he spoke with just the parties, and opposing
counsel, before preparing the report. Refuses requests to speak with Witnesses On repeated occasions Mr. Murtari had pleaded with Mr. Lupia to speak with some
objective witnesses, this never happened. Indeed, in one of his billing statements, the
Law Guardian accused Mr. Murtari of being to "expansive" with his requests
(R-219): This bill is abnormally high. However, you will note that it is mostly due to the
fact that Mr. Murtari felt it was necessary to expand on his position at great lengths,
either in person, by telephone, or by correspondence. Defendant Concerned over Process. In his motion to be heard on March 26th (as part of the motion to vacate the Note of Issue), Mr. Murtari outline his reasons for a new Law Guardian (R-207), he outlined his concerns over the process Mr. Lupia had followed:
The request was denied by the Court. Trial Activity During Trial Mr. Lupia demonstrated questions seeking only damaging information regarding the defendant (for which Dr. Hoenig and the Plaintiff were happy to provide); however, as the parade of other witnesses passed before him, Mr. Lupia was quite passive and never sought to explore the relationship between father and child with these individuals - other than questions that appeared to search for damaging material. Objectively:
Please watch the first few minutes of Exhibit 22, taken after Domenic has woken up and
come to daddy's room to play on the bed. Watch as they play their "tent" and
"steps" game.(Exhibit 2, R-343), Post Trial - Deliberate Distortion of Video Taped Evidence and Testimony Mr. Lupia is an experienced Law Guardian, and clearly knows how to word reports to achieve the desired result. His post trial report (R-298), makes large claims about Mr. Murtari denying food to his child and also serving liquor to the youngster, "in violation of State Liquor Laws" - he appears to have "forgotten" what the tapes actually show, and the actual testimony of the Defendant. In his final report to the Court, issued after the Trial concluded, the Guardian spends 3 paragraphs in a section titled "Parents Interaction With Child", he states: One concern revealed by the tape is that this three year old child was given a
liquer (Anisette) for breakfast. Thereafter the child was given wine for lunch. [actual
testimony was, T1-645 : "a drop and then milk on top of that, a lot of mix,
yes."]The providing of alcohol to a child this young is clearly a violation of New
York's Alcohol Beverage Control law …Secondly the tape also depicts the child crying
and carrying on prior to breakfast being served. Domenic is upset and seen asking for a
slice of fruit. Despite the crying, the child is not given the fruit, but is instead told
to wait until the meal is served. Perhaps these observations are trivial [they may
have been trivial, but they were also the ONLY observations from the tape, nothing
positive was discussed]; however, the Law Guardian believes that these observations
confirm the opinion of Dr. Lois Black, the Court psychologist [already discussed in
this brief]… Post Trial - Introduction of more Factual Material after CONCLUSION of Trial. In his post-trial report (R-298) the Law Guardian also discloses more factual information that appears to be important regarding changes in Domenic's behavior while under the Plaintiff's control: The most recent visit with Domenic took place in September of 1996, at his mother's
home. During this visit Domenic would not respond to even the simplest questions. There
was no communication. It was of concern that he continued to speak only in Japanese.
Following that meeting the law guardian contacted Domenic's day care center and spoke with
the program director, Sara Roche. I was advised that Domenic was becoming much quieter and
that he was similarly speaking primarily in Japanese. It appears, therefore, that
Domenic's ability to communicate is being severely hampered by his use of Japanese. These are disturbing words, and actually support some of the Defendants concerns which
were expressed in his answer to the Divorce Complaint (R-48), and also in the Defendant's
affidavit which was part of a Family Court action he was forced to initiate in February of
1995 (R-332). What is also of concern is the Law Guardian did NOT choose to again visit the Defendant's home and observe family interactions. Why? The portion of trial beginning in October of 1996, was to focus on Custody, and it appears the Law Guardian was exerting careful control over what information could be placed in the record. The defendant was not even aware that such visits had occurred until reading the Final Report and reported those observations to the Court (R-319). Mr. Lupia is an experienced Law Guardian, with I believe some 15 plus years. I have an
unfortunate feeling these were just not "honest mistakes" and that he was
attempting to control what facts would be disclosed and when. Accountability and Due Process? The Defendant has asked the Court for permission to cross-examine the Law Guardian regarding his reports in the pre trial motion of March 26th, 1996 (R-201). Opposing counsel stated in her reply affidavit that (R-232), "The Law Guardian can not by law testify in a trial.", and the Court in it's order did not grant such relief (R-270). Judges, I am not a lawyer, but have had the (unfortunate) opportunity to read a lot
about the Law. For a while the rules of evidence, trial procedure seemed quite
intimidating - how does anyone remember all this stuff?? But as I got down to the
basics, it was just common sense. A process which does the best it can to determine truth, and takes into account human failings such as bias and bad memory, and also the ready willingness of people to lie to get something they want. Hearsay: It requires people to testify to what they could directly experience with their senses - allowing them to testify to an event as reported by someone else (other than proving the communication), doesn't prove anything - the other person could have lied. Cross-Examination: People make honest mistakes about what they have observed, they also lie and exaggerate. The ability to cross-examine a witness is essential to a fair process. The right to also "confront your accuser", to show "holes" in their depiction of events. A report full of accusations cannot stand by itself, the author must be available for cross-examination. Accountability When an adult retains a lawyer, that attorney can be held accountable by the client for
his actions. The client can "fire" them if they are not happy. How does Domenic
hold his law Guardian "accountable?". I have read the Guidelines published by
the Fourth Department, I wish they had more detail. I wish they would require the Law
Guardian to talk to "real" witnesses and also specify the format of the report,
that observed "facts" must first be listed (with their sources), and then
followed by recommendations. I have prepared fact finding reports both as an officer in the Air Force, and in
commercial business. In ALL cases such reports clearly separated the facts I had
discovered (and would later use in my recommendation), from the recommendation itself.
This allowed the "trier of fact" to clearly distinguish the facts from my
opinions, and allow them to also draw their own conclusions. Due Process Rights of Parent and Child Violated It is my belief the activity of Mr. Lupia violated the due process rights of both the
Defendant and Domenic. The defendant does not question his role or right to be an
advocate for the child. But when a Law Guardian plays the role of "fact-finder",
he must be subject to both discovery and cross examination over his results. Certainly
the injection of new evidence after the close of trial can not be justified. Mr. Lupia
represented the only "innocent" in this case. Little Domenic only had him to
represent his interests (and what greater interest can any child have than a relationship
with BOTH their parents). EQUAL PROTECTION Gender Bias The Appellant does not want to join the "victim bandwagon", but proposes this
case does not pass the "gender test". Leave the clear facts as they are, and
just reverse the sex of the parties. The rulings and finding in the this case then
become unbelievable. It would appear Mr. Murtari's Constitutional rights to equal
protection were violated. DENIAL OF REQUEST FOR MISTRIAL The only witness for the plaintiff was Dr. Alice Hoenig, an experienced Psychologist
who readily wrote a report (Exhibit 7, R-349) and took the witness stand against the
defendant as described earlier in this brief. The "factual" foundation for her
entire testimony was solely based on her conversations with Mrs. Murtari in the months
just prior to her filing for Divorce. Indeed, her first meeting with Mr. Murtari occurred
at Trial. This "expert" was happy to testify that she could not have been
deceived by Mrs. Murtari. That her ability to read body language allowed her to determine
Mrs. Murtari was quite truthful (T1-185,186), and in the exchange below she was
also certain her conduct was quite ethical (T1-194). Q It's fair to say you labeled Mr. Murtari with a neuroses? A Yes. Q Without ever? A Yes. Q Meeting him? A Right. Q And you state that you would see that within the guidelines of the professional guidelines of the association? A Those guidelines that you just showed to the Judge are guidelines for a custody evaluation. I was making an evaluation for the child's mental health, and the mother and child's relationship and the mother's mental health, at that time, to the best of my ability. I had not been asked to do a custody evaluation which would require relationship with both the father and the mother and the child, in separate dyads together. D.Y.A.D.S., to see them together. As couples, yes. Q Dr. Honig, regarding the other guidelines of the American Psychological Association, so you're saying that your conduct here would have complied with other guidelines that might have been appropriate to this type of evaluation or your relationship with your client? A That's too vague for me sir. Q Dr. Honig, as a fellow you're familiar, you are certainly familiar with the association guidelines that would be appropriate to the conduct of your professional relationship with Mrs. Murtari? A Right. Q And I assume you're certifying to the Court that this report would be in compliance with those guidelines? A To the best of my ability. The Ethics Board of the Central New York Psychological Association would find
otherwise. Complaint with Ethics Board filed by Mr. Murtari During the proceeding the Defendant had filed a formal complaint with the Central New
York Psychological Association regarding Dr. Hoenig's conduct with respect to the letter
she had written. Too late for inclusion at trial , Mr. Murtari received a letter from the
Ethics Board of the Association affirming his complaint (R-294). The letter documented a
reprimand for Dr. Hoenig for her conduct in this matter and ordered to desist from such
conduct in the future (R-294). Basis for mistrial The defendant submitted a Show Cause Order in early October, 1996, shortly after the
conclusion of the trial (R-293), requesting a mistrial be declared based on this official
reprimand and the pervasive influence Dr. Hoenig had on the proceedings. The order was
return unsigned. RIGHT TO TRIAL BY JURY AND PROOF BEYOND A REASONABLE DOUBT ON
GROUNDS & CUSTODY The CPLR explicitly prohibits the parties in a divorce from requesting a Jury on the
issue of Custody or Equitable Distribution. Mr. Murtari did not have fair access to our legal system. The Judge, opposing counsel,
and the Law Guardian all knew how the system worked, how things were done. Perhaps an
outstanding Judge, or Law Guardian, would have had the insight to step forward and deplore
the lack of clear evidence of wrong doing by the Defendant - but these were average
people, doing their job the way they were used to doing it. They had developed a
"system" for handling these types of cases. Unfortunately, personal bias
develops when any two people meet, and unfortunately these biases often substitute for
fact. Judge Major somehow "knew" that Mr. Murtari had done something wrong, but
just couldn't put his finger on it. The Jury Protects the Citizen from Intrusion by the "State" in their lives Certainly, the right to a Jury is one of our most important right's in the Bill of
Rights. The founders of our nation knew that a "jury of your peers" was
necessary to protect the freedom of its citizenry from unwarranted intrusion by the
"State" - even if this is under the mask of "benign" intrusion, or
"good public policy". The extensive argument which is contained in full at the end of the Appellant's
Brief highlights United States Court of Appeals and United States Supreme Court decisions
which have upheld the special nature of the parent/child bond. It is but a natural
extension that this bond also be afforded the protection of a Jury, and of a standard of
proof "beyond a reasonable doubt" - that which we afford our most valued
liberties. The beauty of the American Jury is that of a "reality check." What this case
of Murtari v. Murtari so clearly illustrates, is the need for a "reality check".
You have to bring in six-twelve people, supplied with just common sense, and no prior
prejudice or bias against the parties, and convince them of the merits of your case. SUMMATION OF THE ENTIRE ARGUMENT IN JUST ONE LINE A punk kid stealing a 6 pack of beer from a convenience store has a right to a Jury,
and a standard of proof "beyond a reasonable doubt.", does not any child/parent
relationship deserve that same standard of care by our society? I know of no more exquisite torture that what a loving child and parent can
experience when they are forcibly separated! I can think of no more important right than
the sanctity and respect due that bond. I know of no more careful deliberation than what
must be taken before recommending that bond be broken and I can think of few matters which
would require a higher standard of proof. Dated: 12 June 1998 John Murtari, pro se 45 East Oneida Street Baldwinsville, NY 13027 (315) 638-7426 To: Mr. Joseph Lupia (LAW GUARDIAN) 472 S. Salina Street, Suite 600 Syracuse, NY 13202-2480 Clerk of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Ms. Maureen Walsh (OPPOSING COUNSEL) 472 S. Salina Street, Suite 602 Syracuse, NY 13202-2480 |
