Third Motion to Recuse Judge

In the Circuit Court of Greene County Missouri

COMES NOW Plaintiff, Marc Perkel, to ask for a third time the Honorable William L. Syler to recuse himself. Plaintiff demands an evidentiary hearing on the matter in front of another judge pursuant to Wesolich v. Goeke, 794 S.W.2d 692, 698 (Mo. App. 1990).

Plaintiff hereby gives Judge Syler notice that he will be called to testify.

Attached to this motion is the entire text of Wesolich v. Goeke. Plaintiff asks that the Court use this as a guideline as to how to proceed. Plaintiff warns the Court that failure to follow proper procedure may result in a violation of the Plaintiff's civil rights where the Court will be acting in the absence of all jurisdiction.

In support of this motion, Plaintiff submits the following affidavit:

I, Marc Perkel of lawful age, first being duly sworn, upon my oath do state to the court as follows:

1. On January 15^th 1997, Plaintiff Marc Perkel filed a lawsuit against Defendants Wear, Sharp, and Stringfellow (Greene County Case: 197CC0170) alleging that defendants acted together to defraud the plaintiff in an underlying divorce case.
2. Although Defendants Wear and Sharp were named defendants in the underlying case, Mr. Wear and Mr. Sharp appeared as counsel for their codefendant, Ms. Stringfellow.
3. Mr. Duncan was hired by The Bar Plan and appeared as counsel for Defendants Wear and Sharp.
4. On January 23^rd 1997 Plaintiff filed a motion to disqualify Wear and Sharp as counsel for Defendant Stringfellow on the basis of conflict of interest and violations of the Missouri Rules of Court.
5. On February 10^th 1997 Plaintiff filed a notice informing the defendants and the court that Mr. Wear and Mr. Sharp would be called as a witness and they would be in violation of Missouri Rule 3.7 if they continued to represent Defendant Stringfellow.
6. The judges of Greene County recused themselves and the Missouri Supreme Court appointed the Honorable William Syler to hear the case. The first hearing was set to be held on July 14^th 1997.
7. On May 19^th 1997 Plaintiff filed a motion asking for a temporary restraining order to prevent execution of the underlying divorce judgement. Judge Syler never considered Plaintiff's TRO.
8. On May 29^th 1997 Plaintiff filed another motion to disqualify counsel and asked Judge Syler for an immediate ruling. Judge Syler did not respond.
9. On June 2^nd 1997 Plaintiff Marc Perkel amended his pleading to include Mr. Duncan as a defendant alleging that Mr. Duncan broke the rules to help his clients execute a judgement obtained through fraud.
10. On June 26^th 1997, Plaintiff sent a Notice of Intent to Depose to all the Defendants and the Judge and filed his notice in the record. In that notice Plaintiff informed the Defendants and the Court that he will depose Mr. Wear and Mr. Sharp and that they will be material witnesses. This notice was the second notice that Wear and Sharp would be a witness.
11. The Notice included a warning about their violation of Rule 3.7 prohibiting witnesses from being an advocate at trial.
12. On July 14^th 1997 a hearing was held to take up pending motions, the issue of improper representation was raised.
13. At that hearing Defendant Stringfellow in open court was questioned by the judge and after testifying that she understood the consequences, that she knowingly and willingly waived conflict of interest with regards to her being represented by another defendant.
14. Judge Syler asked Mr. Sharp, a defendant in this underlying action, if he was going to be a witness.
15. In response Defendant Sharp replied, "No" in spite of the fact that both he and Judge Syler were twice notified that he would be a witness.
16. Both Judge Syler and Defendant Sharp knew at that moment that Mr. Sharp was going to be a witness.
17. Immediately after Mr. Sharp replied, Judge Syler decided to allow defendants to represent other defendants.
18. Plaintiff objected and asked the Court for an immediate appeal to certify the question, stating to the court that to continue with improper representation would be meaningless.
19. Judge Syler granted Plaintiff's motion to certify the question and issued the following order:

"The Court takes up Motion #2, Motion to Disqualify Defendant Vicki Stringfellow’s Attorney’s for Conflict of Interest. After examination of Deft Stringfellow in regard to her representation, the Court denies the motion. Whereupon, Petr requests certification of the ruling. After consideration of requests for certification, the Court recesses all proceedings pending Petr’s certification to the Court of Appeals."

20. Plaintiff took the question to the Missouri Court of Appeals who refused to answer the question.
21. Plaintiff then took the question to the Missouri Supreme Court who also refused to answer the question. The issue is now before the United States Supreme Court.
22. On July 29^th 1997 Plaintiff filed a motion to recuse Judge Syler.
23. In his motion to recuse, Plaintiff complained that the Court ignored his request for a TRO, became an advocate at trial for the defendants, made a ridiculous ruling to allow defendants to represent other defendants, ignored the Missouri Rules of Court, complained about the five hour drive, and covering up the misconduct of the defendant attorneys.
24. On July 31^st 1997 Judge Syler denied Plaintiff's motion to recuse.
25. On September 9^th 1997 Plaintiff sent interrogatories to Defendant Sharp asking for the name of the court reporter who was to take Plaintiff's deposition on January 4^th 1995. This was a deposition that the Plaintiff was accused of failing to attend and for which the court sanctioned the Plaintiff.
26. In response to his interrogatory, Defendant Sharp on October 9^th 1997 revealed that he had no court reporter to take Plaintiff's deposition.
27. On October 20^th 1997 Plaintiff filed a motion for summary judgement. The motion stated the Defendants had committed fraud upon the court by having the Plaintiff sanctioned for not attending a deposition that never occurred. Plaintiff argued that since there was no court reporter present, there was no deposition.
28. On November 18^th 1997 all defendants, in two separate but similar answers, responded to Plaintiff's motion.
29. Both answers included Exhibit A and Exhibit B that are copies of faxes sent by the plaintiff. These exhibits are identical in both responses.
30. Defendants altered Exhibit B to conceal the date that it was sent by crossing out the date of the fax with something similar to a thin tipped black Flair pen. However, the time of Exhibit B was left unaltered.
31. Exhibit B was faxed on December 21^st 1994, however, in their responses both lawyers misrepresented the crossed out date as December 22^nd 1994. This change reversed the chronological order of Exhibit A and Exhibit B.
32. On November 24^th 1997 Plaintiff filed a motion to strike Defendants' responses because they had tampered with evidence by obliterating the date on Exhibit B and stating in their motion that the fax was sent the day after it was really sent.
33. On November 28^th 1997 the Plaintiff sent a notice to Defendants to take their deposition on December 19^th 1997.
34. Although Defendants had already answered two sets of interrogatories, on or about November 30th Defendants filed for a protective order to stop discovery.
35. On December 1^st 1997 Plaintiff filed another motion to disqualify counsel pointing out that Defendant Sharp had already answered interrogatories and thus established himself as a witness.
36. On December 3^rd 1997 Judge Syler granted the protective order and issued an order staying all discovery.
37. On December 8^th 1997 Plaintiff filed a second motion for summary judgement stating that the tampered evidence constituted and admission by conduct that the defendants could not win the case on the merits.
38. On January 6^th 1998 Defendants responded to Plaintiff's second motion for summary judgement. In their response Defendant Sharp states that he did not obliterate the date. He stated that he highlighted the date and that it photocopied to solid black, and then he lost the original. Mr. Sharp made these statements in a sworn affidavit before a notary public.
39. Based on scientific knowledge, information, and belief, Mr. Sharp's affidavit is in fact a false affidavit. What he has sworn to be true is not possible.
40. On January 12^th 1998 Plaintiff filed a reply to Defendants' response to Plaintiff's motion for summary judgement. In his reply Plaintiff stated that a photocopy machine couldn't copy highlighted text as solid black and cited a number of facts that strongly indicated that Mr. Sharp's affidavit can not possibly be true.
41. This reply included a color test sheet using six colors of highlighters for the defendants to test to see if they could duplicate the solid black effect which Mr. Sharp claims.
42. On January 23^rd 1998 Plaintiff filed his Second Motion to Recuse Judge pursuant to Section 508.090 of the Missouri Code.
43. In his motion to recuse, Plaintiff complained that Judge Syler, in failing to investigate possible criminal wrongdoing by the defendants, violated the Plaintiff's 14^th Amendment property rights and right to due process of law. That Judge Syler conduct violated his civil rights and a conspired to obstruct justice pursuant to 42 U.S.C. 1983 and 42 U.S.C. 1985(2) of the federal code. Plaintiff complained Judge Syler violated Canon 1, Canon 2(a), Canon 3(a)(1), Canon 3(a)(3), Canon 3(a)(4), Canon 3(a)(5), and Canon 3(d)(1). Plaintiff complained that the Judge's impartiality might therefore be questioned.
44. On January 26^th 1998 Judge Syler denied Plaintiff's second motion to recuse.
45. On February 2^nd 1998 Plaintiff Marc Perkel filed a federal civil rights lawsuit against the defendants in the underlying case, and included, as a defendant is Judge Syler.
46. The federal suit accuses Judge Syler of conspiracy to obstruct justice, judicial misconduct, and concealing criminal conduct.
47. Plaintiff has just cause to believe that he cannot have a fair trial on account of the causes alleged.

WHEREFORE, Plaintiff Marc Perkel, having now filed his motion in the form of a sworn statement, and that his motion is at least substantially in proper form, demands a hearing on his motion to recuse in front of a second judge.

State of Missouri

________________________________

Marc Perkel * Plaintiff

County of Greene

Subscribed and Sworn to me this First day of April 1998.

________________________________

Notary Public

My Commission expires:

Unlike the two previous motions to recuse, this motion includes a sworn statement as required. Plaintiff contends that this is the reason his writ of prohibition in the Missouri Supreme Court was denied. In Wesolich v. Goeke, 794 S.W.2d 692, 698 (Mo. App. 1990) (This entire case is attached) the court ruled that the Plaintiff doesn't have to be in perfect compliance with the statute.

The standard of review in asking a judge to recuse is defined by Canon 3(d) which states, "A judge should recuse in a proceeding in which the judges impartiality might reasonably be questioned…" This includes when a judge has "displayed deep-seated and unequivocal antagonism that would render fair judgement impossible." The test under the canon is whether a reasonable person would have a factual basis to doubt the judge's impartiality. State ex rel. Wesolich v. Goeke, 794 S.W.2d 692, 698 (Mo. App. 1990) which goes on to say,

In this case Judge Syler was twice asked to recuse himself and denied these motions without a hearing. It appears that Wesolich is saying that the fact that there was no hearing by itself is sufficient justification for recusal.

It is vital to public confidence in the legal system that decisions of the court are not only fair, but also appear fair. Wesolich also sets the standard of review to be liberal construction in favor of the right to disqualify.

Wesolich goes on to describe the correct procedure for a judge to follow:

Judge Syler, in spite of the Missouri Rules of Court, allowed a defendant who is accused of fraud to represent his codefendant who is also accused of fraud. Judge Syler might as well have sat at the defendant's table as he attempted to argue their case for them. Judge Syler asked Defendant Sharp a leading question, about if defendant Sharp was to testify, with the expectation that he would lie to the court, which he did. Judge Syler shut down discovery when the Plaintiff uncovered criminal conduct on the part of the defendants. Judge Syler has failed to rule on the Plaintiff's legitimate and necessary motions while at the same time ruling on the defendant's motions in a manner that favored them and was inconsistent with the rules. Judge Syler has been openly hostile in his rulings towards the Plaintiff and now that he is a defendant in federal court. Although he is only a defendant for declaratory and injunctive purposes because of judicial immunity, Plaintiff contends that the average reasonable person, knowing all the facts, would easily conclude that Judge Syler's impartiality would be questioned.

Clearly there is no doubt that any reasonable person would conclude that this judge can not possibly give me a fair and impartial hearing and that he should be removed and replaced by an impartial judge.

Marc Perkel * Petitioner * 04-01-98