Is this Justice?

An Open Letter to

Assemblyman Jeffrey Dinowitz,

Chair of the New York State Assembly,

Standing Committee on Judiciary

by: Mr. James Kelly, Priorities Guest Blogger

Share your thoughts after reading:

Dear Chairman Dinowitz,

I was at your public hearing on the rights of children in court on October 24, 2019, but I did not get a chance to present oral testimony. I am an ex-spouse, and if you are married, or have been married, this could easily be your story too. I have been accused by my ex of being in violation of our divorce agreement five times. This accusation did not come as the violations were said to have occurred, there was no demand for specific performance sent by certified mail as was required in the agreement. There was a civil court motion for punishment, and not coercion to comply, and a request for incarceration that could have been for as long as two and a half years.

I used to think that the U.S. courts were impartial triers of the facts that carefully weighed truth, fact, evidence and law and that came to an equitable decision, but having been intimately acquainted with our courts, three times as a defendant to the same plaintiff for over five years now, I know better.

Some background is necessary. My ex filed suit after I complied to the letter with a no contact order of questionable validity as I was present, but did not speak and did not touch my 11 year old son, but was merely present in his line of sight as he was prepared for a medically necessary circumcision. My ex facilitated my arrest and while the charges were ultimately dropped, the tandem civil suit seeking punishment was filed only days later presumably because I had the audacity to challenge her perception of how I should be around our son. Her perception seems to be that I should be strictly limited to a financial resource and a target of punishment, with no credible evidentiary basis.

As I waited almost a year to go to trial, I have lost my employment of 15 years and my association with my supervising real estate broker. I have exhausted my remaining assets and maxed my credit card debt. I have been unable to seek replacement employment because of the specter of being incarcerated. For that same reason, and the necessity of maintaining a vigorous and zealous defense, I have not been able to effectively build the business that I had started, and the only way that I can eat, and have a roof over my head is by driving for Uber as an independent contractor. One of my contempt charges centers around the willful nonpayment of child support. The discussion in the public hearing included the threat of the loss of driver’s licenses to enforce compliance with payment and also to have stronger access to parents who are not employed but are, instead independent contractors, and Uber was specifically mentioned. I have had so much taken from me such that staying incarcerated is a viable retirement plan. I would no longer have to work, worry about food or keeping a roof over my head, paying taxes, or not seeing our children as there are programs in jail to allow free supervised visitation. Without my children in my life, I am in jail regardless of which side of the bars that I happen to reside on, but the systemic brokenness and corruption creates deadbeats and incentivizes incarceration and disenfranchisement. I packed up my entire apartment and put in into storage in preparation for going to jail on the day of my trial, October 4, 2019.

Impartiality is the standard that has been sought for centuries. I have come to understand that it is necessary for justice to be applied and that there are three supporting pillars that include judicial immunity in good behavior, judicial independence and the People knowledgeable in their rights and vigorously enforcing them. Even the most solid exculpatory evidence is useless in a court where impartiality is not supported to provide justice, where the Constitution of the United States of America and its interpretations by the Supreme Court of the United States are disregarded as the rule of law in favor of the rule of man, as is the Constitution of the State of New York. That man in my case is the Honorable John J. Leo. The right to an impartial trier of the facts has been repeatedly denied to me by this man. In contradiction to the warnings of Alexander Hamilton in Federalist Essay No. 78, We the People of New York are among those who have failed to prevent the legislative and the executive branches of the federal government from subjugating the judiciary, and have allowed the supremacy of federal law to require compliance with the collection of financial child support while disregarding the emotional child support, the protection of children’s rights and due process of law that is more important to the child. In this way, children are used as proxies for power, control and financial gain not only by the custodial parent, but by the attorneys, experts, the Child Support Enforcement Agency who benefits with what equates to a commission of approximately 15% of all child support money in arrears according to the numbers testified to in the hearing, and who always needs more, and notably, the judges also derive a pecuniary interest in the form of their compensation package as the State of New York derives financial benefit from the federal government under both Child Support Enforcement and TANF grants. The existence of the Child Support Enforcement Agency depends on the concept that parents do not want to support their children and have to be forced to do so by court order, when the fact is that before entering the legal system both parents in the typical family provided for both the financial and emotional support of their children, and both parents typically want to continue to do so. As I wrote in my written testimony to the joint committees at the public hearing, there are four rights of the children that are systemically disregarded directly, and three that are derivatively denied through the denial of their parent’s rights to effect these monetary disbursements. Is this justice? I think not.

When I challenged the jurisdiction of the Honorable John J. Leo to hear my case, he argued for his own jurisdiction on behalf of the plaintiff’s attorney characterizing it as colloquy, while the plaintiff’s Attorney literally maintained complete silence on the issue. Is this equal protection under the law by an impartial trier of the facts? Is this justice? I think not. I think that this is exemplary of the bias against me that was to follow.

I demanded a trial by a jury of my peers. An attorney that read it characterized as the most comprehensive pleading on the topic that he had every read. It cited the Supreme Court decision in the case of Bloom v Illinois 1968 among many others. The Honorable John J. Leo cited that case several times in his short denial where he focused on the doctrine that six months imprisonment for contempt did not guarantee the right to a trial. What he did not even mention were the several quotes within that case that supported the ultimate decision that Bloom was due the right to a trial by Jury. I was not allowed to speak to address the issue at bench trial after having exercised my 1st and 10th Amendment rights to call a jury of my peers myself over the radio, and having fifteen show up. I was not allowed to challenge the bias with the distinction that I was facing five indirect contempt charges that could result in up to two and a half years of incarceration with this citation: “In the face of courtroom disruption, a judge may have difficulty maintaining the detachment necessary for fair adjudication; at the same time, it is a judge who "determines which and how many acts of contempt the citation will cover," "determine[s] guilt or innocence absent a jury," and "impose[s] the sentence." Codispoti, 418 U. S., at 515. Therefore, Codispoti concluded that the concentration of power in the judge in the often heated contempt context presented the "very likelihood of arbitrary action that the requirement of jury trial was intended to avoid or alleviate." Id., at 515. The benefit of a jury trial, " `as a protection against the arbitrary exercise of official power,' " was deemed particularly important in that context. Id., at 516 (quoting Bloom v. Illinois, 391 U.S. 194, 202 (1968)”. Is this justice or is this the bias of a tyrant defending his tyranny? As a trial by jury is a defense against tyrannical corruption that hearkens back to the Magna Carta and was strengthened in the Habeus Corpus Act of 1640, it seems obvious that any corrupted tyrant cannot grant a trial by a jury of peers and maintain his or her tyrannical control. To be able to face two and a half years in jail without a jury based on the allegations of a hostile ex-spouse is a disturbing and repulsive consideration to the general public that is not intimately familiar with the operations of our court systems.

While four of the five charges of indirect willful contempt of court were dismissed summarily at trial, one still remains pending three weeks after my trial, and may remain so for months. In addition, the motion for an order of protection against me relating to our children was also denied. The remaining charge is willful contempt of court for non-payment of child support. As a civil charge, this should require that I have the means to be able to make such payments and have chosen not to and incarceration is used as a coercive tool such that I have the keys to my own release after all other options have been exhausted. I have known many parents that were jailed without having the means to effect their own release. In a corrupted court, that I have lost two major sources of income, exhausted all of my financial resources to the very limit of my credit lines, and do not have the ability to effectively seek to replace my income streams until I am no longer under the specter of incarceration, is useless.

To have the charge still pending over me is itself evidence of further bias of the court when no willful withholding of resources was proven at trial. That this allegation was brought maliciously by a plaintiff with unclean hands herself raises the standard of evidence of bias to clear and convincing. The plaintiff was required by the same divorce agreement to provide half of her retirement account which equates to several times what is alleged to be owed back to her in financial child support arrears, and despite a demand for specific performance sent by certified return receipt requested U.S. mail has been met with total disregard and noncompliance. This is the only asset that I have not accessed to pay child support, and it is not within my control, therefore, a malicious plaintiff with unclean hands seeking to punish me through the use of the court is doing exactly that given that this allegation was also not summarily dismissed. Rather that fighting with the plaintiff, which is clearly not in the best interests of our children, and recognizing that she makes substantially more income than I do and has ample assets from outside the marriage arising from a medical malpractice settlement, and that our children want for nothing, I chose to walk away from the retirement money considering it as prepayment for financial child support for years so that I might get on with my life and again become a productive member of society and a tax paying business owner. Instead, I find myself in limbo awaiting a decision from a court that is neither impartial nor unbiased that could result in my incarceration and destroy any recovery that I might attain in the interim. I could be released homeless, unemployed and with a revoked driver’s license unable to even drive for Uber and knowing that if I did, I would likely still not be able to feed and shelter myself. Does the punishment fit the crime? Is this justice? I think not.

The financial child support program under the Social Security Act was introduced at a time when our country was recovering from the Great Depression to offset the expenses of the States when single breadwinner families were separated from the male breadwinner and the tender years doctrine dictated that the mother retain custody of the children, that kept the needy children from starving, that kept them clothed and warm. Today it increases incarceration, reduces taxable income, increases homelessness, increases unemployment, increases personal debt, increases multigenerational health issues that result from Adverse Childhood Experiences, and increases the income of the state and those working in the courts. Is this in keeping with the International Covenant on Civil and Political Rights? Is this in keeping with the best interests of my children? Is this Justice? Is this the greater public good, or is this a war on families using children as proxies for the corrupt financial gain of those in positions of power? The Court of the Star Chamber has been resurrected under the appearance of legitimacy and persecutes families, using children as proxies for power, control and financial gain by multiple entities as the defacto biological weapon of mass destruction of unnecessarily inducing stress hormones into family systems are used by our courts against us. This is not justice. This is tyranny.

James Kelly,

Defendant, Suffolk County, New York

Index No. 17657-2014

Plaintiff, E.D.N.Y. 2:19-cv-02063

131 views0 comments

National Judicial Conduct and Disability Law Project, Inc.  All rights reserved.