Appeal Investigation

34 Franklin Street
Lyons, NY 14489
17 February, 1999

Judge M. Dolores Denman
Appellate Division - 4^th Department
50 East Avenue, Suite 200
Rochester, New York 14604

Dear Judge Denman:

Last year I was involved in an Appeal heard before the Court regarding an issue of Divorce & Custody (CA 97-3119 & CA 97-3120). My appeal was denied and I am concerned over the circumstances involved. I ask you to please take the time to investigate this matter which has devastated my relationship with my child.

In my Reply Brief I called attention to what appeared to be numerous and substantial distortions of the Record appearing in the Brief filed by the Respondent’s Counsel, Ms. Maureen Walsh, and also affirmed in a brief statement filed by the Law Guardian, Mr. Joseph Lupia, Jr.. During oral argument it also appeared Judge Pine, presiding, also had concerns regarding these items. Excerpt for Motion to Reargue (May 28, 1998):

In my Reply Brief I noted the misinformation used by Ms. Walsh (Plaintiff's Counsel), in her brief. Justice Pine, during your questioning of Ms. Walsh, it appeared you also noticed she had made representation to items which were not supported by your reading of the record (and you did not seem pleased!).

I will soon be submitting an ethical complaint regarding Ms. Walsh's conduct, and I had hoped such conduct would also have been noted in your Memorandum. While I am sure there must have been some "back-channel" communication with Ms. Walsh to let her know your feelings - I hope the Court will recall the issue and update the Memorandum accordingly.

Your honor, during that oral argument I was also concerned only Justice Pine appeared to have any working knowledge of the case.

The Judgment was affirmed, and Ms. Walsh was directed to apply to the Trial Court for costs associated with the appeal. In my reply affidavit I asked the Trial Judge to limit the costs, especially because of the misrepresentations made during the appeal. Excerpt from reply affidavit (June 3, 1998):

Opposing Counsel made misleading statements that were not supported by the Record in her Brief to the Appellate Division on this appeal.

In my Reply Brief, I noted those statements and brought them to the attention of the Appellate Court.

During Oral Argument, the presiding Judge (Justice Pine), asked Ms. Walsh if she had made statements that were not supported by the Record. Ms. Walsh responded, yes. Justice Pine then remarked, in what appeared to be annoyance, that she too felt the statements were not supported by the Record.

I had always thought that type of thing was a definite "no-no" in Appellate practice. I was absolutely surprised by the unanimous affirmation of the Judgment – and also surprised the Memorandum of the decision contained no reference to her conduct. Justice does move in mysterious ways.

The Court did assign her fees, but I hope that conduct can be taken into account.

When we both appeared before the Trial Judge for the motion, I was quite surprised to hear Ms. Walsh make further misleading statements about what had happened during the appeal (I have attached an excerpt from the transcript).

MS. WALSH: … He makes some response in here that there was some unethical behavior that was questioned by Judge Pine during oral argument and I just want to clarify for the Court so the Court understands what happened. There was one issue -- and if you look at the decision from the Appellate Division -- that the Court took issue with and that was the admission of Dr. Black's report without her testimony. And this Court will remember one of the reasons that you did that is because Mr. Murtari had changed the contract with Dr. Black –

THE COURT: That's right.

MS. WALSH: -- and had stated that whoever wanted her testimony would pay. Well, we, in error, did not have that in the record. That contract wasn't in the record and the colloquy which had been in chambers was not part of the record and that's what I was describing to Judge Pine, and that's what she said, "Well, that's not in the record, is it?" And I said, "No." And I admitted it, because it wasn't. Yet was that an error? As you know in any trial we make errors and in any trial the record might be missing something and that's what she had responded to, not that I had done anything unethical or done anything –

THE COURT: Right. I recall reading the decision in that regard.

MS. WALSH: Right. And that's what that decision was…

I am sure Justice Pine can correct this – it had nothing to do with Dr. Black’s payment arrangements. I make this effort to write to you in hopes you will take a fresh look at what happened here and take appropriate action. I did file a letter grievance regarding this conduct with the Attorney Grievance Committee in Syracuse, dated June 2, 1998. In their response I was surprised to learn that even if my allegations were true it would NOT warrant any action! I look forward to your response.

Sincerely yours,

John Murtari