Bizarre Beyond Belief
On April 17th 1998 Judge Syler scheduled a hearing to resolve all
pending motions. I had filed my Third Motion to
Recuse the judge. This time I filed it in affidavit form and now
had it procedurally correct. When a motion to recuse is procedurally
correct, the rules require that a hearing be held on the merits of the
reasons. If the judge is going to be called to testify, then a second
judge must be called in to hear the recusal. The Missouri Supreme Court
appointed Judge Cobb Hanna to hear the recusal motion.
Judge Syler Hides
We sat down and the hearing started. I intended to start
by putting Judge Syler on the stand, but looking around the courtroom,
he was no where to be found. I asked, "Where's Judge Syler?" Judge Cobb
said that apparently he wasn't in the courtroom. So I asked where he was
and he replied that he didn't know.
Although I don't yet have a transcript, the conversation was something like this. I asked if he was in the courthouse. The Judge replied he didn't know. I indicated that I wanted him to be a witness and that I wanted him brought into the courtroom. I pointed out that what I understood would happen is that we would have a hearing on the recusal, and if Judge Syler wasn't recused, that he would then take over and we would hear all pending motions as scheduled. The acted dumb like they didn't know.
Judge Hanna then asked if I had subpoenaed Judge Syler. I said that I hadn't, but that Judge Syler had scheduled the hearing and that when a judge schedules a hearing, that one assumes that the judge is going to be there. They kept pretending that I had to have subpoenaed the judge.
I pointed out the procedures in the case law having to do with recusal hearings. I pointed out that when a judge is going to testify, that a second judge is necessary. I pointed out that in my motion to recuse that I indicated that I was going to call the judge to testify. Because of this it was necessary to have a second judge. I pointed out that the reason Judge Hanna was hearing this case was because Judge Syler was to testify and if not for that he had no reason to be there.
Around that time a woman in the back of the court stood up and addressed the court identifying herself as Laura Vogel. Laura works for the Attorney General and is (improperly) representing Judge Syler in my Federal Lawsuit against him. Although Ms. Vogel is Judge Syler's federal lawyer, she appeared in the state case to speak in his behalf. ms. Vogel argued that I should not be permitted to call the judge as a witness unless I submitted all my questions beforehand for Judge Hanna to review and approve. What gave her standing to appear and make an argument is one of the mysteries of the universe.
I continued to assert my right to call Judge Syler but they wouldn't produce him. Judge Syler was hiding somewhere in or around the courthouse. In my mind I picture him in the judges chambers with his ear to the door listening in. It's almost comical, judge are hiding from me! This would be funny if not for the fact that it shows what a sorry ass system of justice that the Banana Republic of Missouri has.
Defendants representing Defendants
I then pointed out that Judge Syler had ruled to allow defendants to
represent defendants, which is the very definition of conflict of
interest. I mentioned that I had taken this issue to the Missouri Court
of Appeals, the Missouri Supreme Court, and the United States Supreme
Court, and that none of these courts ruled on the issue, either
for or against. Judge Hanna indicated that the failure of the higher
courts to rule was the same as a decision to let the lower court's
ruling stand.
I argued that the high courts' decisions not to rule was more likely to be procedural errors rather than a decision to let the low court's ruling stand. I said that I was a pro se litigant and that this was my first case before the United States Supreme Court and that very few pro se litigants won cases before the Supreme Court on their first try.
I also pointed out that the original order of Judge Syler to allow me to certify the question to the Missouri Court of Appeals was flawed in that Missouri has no procedure for certifying a question of law. Therefore Judge Syler granted me a procedure that doesn't exist and it was his error that caused the higher courts to fail to rule.
Judge Hanna Limits Scope of Recusal
Judge Hanna then said that the only issue is that Judge Syler is a
defendant in the federal lawsuit. I pointed out that there were a lot of
other issues as well. He said that this was my third motion to recuse
and that the other two were denied. Therefore, all the issues in those
motions were already decided. I said that was not the case. The first
two motions had procedural errors and were denied for that reason, not
on the merits of the issues. I reminded the court that a judge can
dismiss a motion to recuse on procedural reasons without a hearing, but
if the motion is procedurally correct, that he had to have a hearing on
the merits. Since there was no hearing, Judge Syler couldn't have ruled
on the merits, therefore, all issues were on the table.
Judge Hanna said that he didn't agree with me. I said that Judge Syler was somewhere in the courthouse so let's get him in here on the stand and ask him if he decided on the merits. He still wouldn't call Judge Syler to the stand and stuck to the position that he would only consider the issues that were new to recusal number three.
Arguing the Rules
I then held up the Missouri Rules of Court and asked Judge Hanna if
these were the rules that we are going by. He said yes. I then asked if
he was subject to obey the statutes of Missouri and he said yes. I
indicated a concern as to if we were all playing by the same rules and
wanted to make sure that we were playing the same game.
I pointed out to Judge Hanna that the rules require that a judge recuse if he has an interest in the outcome of the case and that the fact that he was being sued constituted an interest in the outcome of the case. I also pointed out that the standard of review was that if a reasonable person would question if the judge was capable of an impartial hearing, that he should recuse. I then pointed out that the motion to recuse was to be construed liberally so as to maintain public confidence in the integrity of the justice system.
I then applied the facts. I said that when a judge allows defendants to represent defendants, shuts down discovery when criminal conduct is uncovered, and is being sued for obstruction of justice, that a reasonable person would question the impartiality of the judge. I added that a judge has a duty to recuse on his own motion under these circumstances. I argued that this judge must obey the rules.
In spite of these arguments, Judge Hanna remained unconvinced. He asked if I had any further arguments. I replied that it was obvious that he had already made up his mind and that there was no point in arguing further.
Defendants Attempt to Argue
At that point the defendants attempted to make an argument. They said
that the federal suit was frivolous and that I was just suing because I
was unhappy with Judge Syler's decision. I interrupted and pointed out
to the court that they were arguing the merits of the federal case and
that we were in state court and that this court didn't have the
jurisdiction to determine the outcome of a federal cause. The judge
agreed saying, "I was just about to say that." Nonetheless, they
continued to argue the federal case.
The Decision
Of course the decision was that the motion to recuse was denied. Judge
Hanna ruled that anyone could file a federal lawsuit as a ploy to recuse
a judge. If this were the only issue, I would agree. But when combined
with all my other reasons, it doesn't stand.
Obviously, the fix was in. This judge should have recused on his own motion. Every judge here in Greene County had recused merely because they knew either me or the defendants. This was a case where the judge was being sued and had broken a lot of rules. Knowing how much of an effort was put into having this hearing to defend the judges recusal motion, I already knew that the decision had already been made. Therefore, knowing that the judge wouldn't be recused, I had a Plan B.
After the decision it was announced that there would be a recess and that Judge Syler would preside over the rest of the motions before the court. Now Judge Syler is going to come out of hiding to hear the case.
There's more than one way to get rid of a judge.
During the recess I went up to the clerk's office and filed my dismissal
of the case. The case had some flaws in it and I had wanted to refile it
as two separate cases, on in equity and one in law. This would make it
so that I could get a jury trial in the law case. Although I didn't
intend to dismiss the case just then, I had to make sure that Judge
Syler couldn't use his judicial power against me. Thus I was forced to
dismiss the case at that time.
I came back in and the hearing started, Judge Syler presiding. I interrupted him and announced that I had dismissed the suit and handed everyone time stamped copies of my dismissal. There was a pregnant pause as jaws dropped. Finally, Mr. Sharp pointed out he had a motion pending for attorney's fees. I said I didn't remember a motion for attorney's fees, and even if he did have one he couldn't get them because the case was dismissed and the court lacks jurisdiction to hear his motion. The judge muttered for a while and ruled his motion for attorney's fees is denied.
Who Won?
That's hard to say. To me it's a win when you don't lose. I believe
Judge Syler really intended to fuck me over in his hearing and because
he was denied jurisdiction after driving 5 hours each way to be there
and bringing in a second judge, I would say that was a win. I had to
dismiss a lawsuit that I might have merely amended my pleading at a
later date. They forced my hand on that and I don't know what I lost.
What I might have gained is a stronger position in federal court. I need to have a conspiracy between the defendants and state actors in order to sustain a 1983 civil rights claim. Until now, all I had was Judge Syler as the state actor, Now I have Judge Hanna conspiring with Judge Syler and the Attorney General to deny my right to due process of law. I think they made my federal case a lot stronger in it's weakest link. So I may be the winner here in that respect.
Who Lost?
Although I new the fix was in, I still find it shocking when it actually
goes down. I still go into court with the illusion that justice is
somehow going to happen, but it never does. In this case it was amazing
to watch how everyone conspired to hide Judge Syler in the back room to
deny me my right to question the judge as a witness. It's hard to
believe how corrupt it is even when you're there watching it.
I would like to have one fair hearing just to see what it's like. But I'm never going to get a fair hearing because the justice system is self serving and if I got justice it would cost the legal profession money. We in America have a sorry ass justice system. We are the shame of the world. Justice is no more than a brand name.
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