Special Comment on Judicial Bias        

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In spite of the nightmare that my 86 year old aunt, Lula Baity, was made to suffer throughout the 102-days she was wrongfully deprived of her liberty and subjected to physical abuse, such as when forcefully administered Risperdal, followed by forced physical and intrusive medical procedures that were highly invasive, including, among other things, daily enemas and suppositories and the unnecessary non-consensual surgical extraction of three (3) of her teeth, that, which most devastated my aunt’s spirit, in her own spoken words, was the ill treatment she received from the federal court judges presiding over her case:

 

“I was treated kinder and with [more] dignity and respect in post slavery time and before the Civil Rights era, more so than I have been treated by the judges [Skretny and Schroeder] and [defense] lawyers in this case.”

 

My aunt, who lived a simple and honest life, frequently spoke of her love for this Country, as well as her belief in the fairness of our Judicial System.  Sadly, however, against   her expectation, this belief was shattered, as she, over time, acquired information about the various outrageous and biased rulings of Judges Skretny and Schroeder.

 

As shown in her videotaped testimony given at her deposition on September 25, 2005, my aunt, at the ripe old age of 86, clearly understood that what had occurred was WRONG and an INJUSTICE to her (i.e., taken out of her home against her will, without a court order or judicial authority, and confined to a locked dementia unit at a nursing home, for 92-days, where she was subjected to physical abuse and forcefully administered a antipsychotic drug on a long term daily basis. She was also subjected to other abuse).  It is likewise obvious, at least to me, that what occurred with my aunt is not such a complex ordeal as to require someone with a scholarly or legal mind to understand the wrong that was committed against my aunt.  Indeed, even a laying dog knows the difference between being accidentally stumbled over as opposed to being intentionally kicked. 

 

Long before my aunt’s ordeal several courts across the country, included among them the United States Supreme Court in the case of Zinermon v. Burch, 494 U.S. 113, 138 (1990), under circumstances factually similar to that in my aunt’s case, ruled illegal the involuntary confinement of Darrell Burch, the respondent in that case, to a mental hospital without either valid consent, a court order or an involuntary placement hearing. This is not a new or unique legal issue.

 

In the Zinermon v. Burch case, Mr. Burch filed a lawsuit in federal court against physicians, administrators, staff members and others at Florida State Hospital in Chattahoochee. In his complaint Mr. Burch alleged that he was deprived his liberty, without due process of law, by the Hospital staffs admitting and confining him as a mental patient when he did not give informed consent to his admission. The Supreme Court agreed.

 

In spite of the Zinermon v. Burch case, and many others not cited here, for some metaphysical reason, Judges Skretny and Schroeder could not figure out during Mrs. Baity’s lifetime that the law has established that it is forbidden to involuntarily and forcefully remove a person from his/her home and to confine that person to another location against his/her will without consent, the benefit of a court order, or a placement hearing. This is readily apparent to even a lay person.

 

 My aunt’s lawsuit was filed in court on October 1, 2004. Two years later, on May 9, 2006 my aunt passed away at the age of 89.  She did not live to have her day in court, nor did she have any opportunity to tell a jury about her plight, all because of delay tactics on the part of the defendants and sanctioned by Judges Skretny and Schroeder.   

 

For the Sake of Justice to Mrs. Baity, her Case should be Transferred

to Another Court Outside of the Western New York, Judicial District.

 

The right of all litigants to a “neutral and detached judge” is protected by the Constitution.  It has long been the rule of law that an impartial judiciary is absolutely indispensable and essential to public confidence in the integrity and stability of the judicial system.  For this reason, the United States Supreme Court ruled in the case Bracy v. Gramley, 520 U.S. 899, 904 (1997) that due process “requires a ‘fair trial in a fair tribunal’ before a judge with no actual bias against any party or interest in the outcome of any particular case.”  The Supreme Court stated that in order to assure fairness and lack of bias, “justice must at least satisfy the appearance of justice.” Schweiker v. McClure, 456 U.S. 188, 196 (1982)

 

In that due process “requires a ‘fair trial in a fair tribunal’ before a judge with no actual bias, when viewed in the context of a judge’s ruling on a particular issue in a case, the  law recognizes that:  “A favorable or unfavorable predisposition can ... deserve to be characterized as ‘bias’ or ‘prejudice’ because, even though it springs from the facts adduced or the events occurring during the proceedings, a judge’s rulings may be so extreme as to display clear inability to render fair judgment.” Liteky v. United States, 510 U.S. 540, 551 (1994).  

 

The Second Circuit Court of Appeals in the case of U.S. v. Edwardo-Franco, 885 F.2d 1002, 1010 (2nd Cir. 1989), by example, ruled that in the case before them that there were  enough questionable rulings and incidents to support the appellants’ claim of apparent bias and unfairness on the part of the judge.”

 

In Mrs. Baity’s case, the rulings of Judges Skretny and Schroeder on key issues throughout the case are so outrageous that under any standard of review the Judges’ rulings show apparent bias and unfairness.  A review of one particular and most egregious ruling by Judges Skretny and Schroeder is set forth in my Letter to Attorney General Eric H. Holder, Jr. at pages 6, 7, and 8.  

 

Other Bias Conduct on the Part of Judges Skretny and Schroeder

 

In addition to the questionable rulings on the part of Judges Skretny and Schroeder, there are incidents which also support a claim of apparent bias and unfairness towards Ms. Baity’s case.  They include:

 

(1)  During a deposition that took place on January 23, 2007 a disagreement arose between my attorney, Richard L. Baumgarten, Esq., and defendants’ counsels. Defense counsel telephoned Judge Schroeder for a ruling on the disputed issue.  After the Judge made a ruling on the issue, defense counsel, Kevin McCarthy, Esq., and Judge Schroeder, off the record and in the presence of my lawyers and I, openly engaged in discussion about their wives (naming on a first name basis) past weekend involvement together on a shopping excursion. 

 

(2)  At a proceeding held before Judge Skretny on July 10, 2010 (Transcript), defense counsel, Paulette Ross, brought to Judge Skretny’s attention that his father who was a resident at Linwood Elderwood nursing facility, has the same doctor, James S. Collins, Jr, who is also the expert witness for the defendant doctors, Lawler and Chau, in my aunt’s case.

 

A number of expert medical witnesses were retained by each party. The expert witnesses either testified and/or submitted affidavits to the Court in defense of their client’s position.  The credibility of the expert witnesses on key issues in my aunt’s case will ultimately have to be decided by Judge Skretny.  Under these circumstances and in light of Judge Skretny and his father’s obvious personal relationship with Dr. Collins, the very plausible possibility that an actual conflict of interest exist or, at minimum, the appearance of a conflict, warrants Judge Skretny to recuse and disqualify himself from my aunt’s case.  Indeed, for Judge Skretny to do so would be in line with the Supreme Court’s rulings as stated above which direct that: “in order to assure fairness and lack of bias, that ‘justice must at least satisfy the appearance of justice’.”

 

Presently pending and awaiting decision before Judge Skretny are the parties’ motions for summary judgment.  The argument made on my aunt’s behalf is that she is entitled, as a matter of law, to a judgment in her favor because the defendants confined and deprived her of her liberty without affording her procedural due process (i.e., notifying a court before and after confining her, and providing her right to a lawyer and a hearing).

 

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