Missing Documents & Federal Court Rules #VB77
September 3, 2009One Comment
Los Angeles, CA Important court documents have been reported missing from the U. S. Courts website known as “PACER” in the Richard I Fine case. Here is a 14 min video and transcript of the telephone interview with Mardi Mason and Richard Fine regarding the missing documents.
Mardi Mason: I have worked on very sophisticated and complicated cases but I have never seen any kind of situation like I’m looking at here in terms of problems with documents not even appearing in the docket. That’s a new one for me entirely.
Leslie Dutton: Mardi defined what a docket is.
Mardi Mason: It’s basically an index. It’s a typed list of what documents comprise the file. It would tell you the date received, it would assign a number in sequence when it came in, a short description of the document, maybe some notes from the clerk as to when it was actually entered, things like that. It’s just basically a simplified index of the documents that are in the case file.
Leslie Dutton: As Mardi said, the disconcerting way the documents supporting Mr. Fine’s motions and appeals have disappeared makes her question the honesty of the court.
Leslie Dutton: You found in past practices that if you wanted to check the Federal court website that the documents were usually there and posted properly?
Mardi Mason: Before all of this happened, it never would even have occurred to me to question the integrity of a court docket. Now, I never will again.
Leslie Dutton: Just tell us … how many have been missing?
Mardi Mason: Well, for example, in the district court case concerning disbarment, there are a total of seven documents in the docket. But they’re only identifying them by Numbers 1, 3, 4, 5 and 7, meaning Number 2 and Number 6 are missing. Both of those are Mr. Fine’s pleadings that he has filed. One is the Response to Order to Show Cause Re Disbarment, and the other is a Motion to Set Aside Order of Disbarment. What they’ve done is erase Richard’s restatement of the facts and his defenses from the record. They won’t let the public view the documents or even acknowledge that they exist. Yet the fact that the docket numbers were assigned and skipped proves they have them, they just don’t want the public to see what’s in them. At least that’s what I’m left to conclude; what other legitimate reason could there be?
Leslie Dutton: Not one to sit by and let the clerk muck around with legal documents, Mardi Mason tried to track down the culprit. She was stymied by the bureaucracy.
Mardi Mason: I called yesterday on the latest one to turn up missing and I was passed to about five different clerks who essentially shrugged their shoulders and couldn’t explain why it wasn’t in the docket even though two other documents that we’d sent within the same package by FedEx that got there on Monday. Those other two are in the docket but the third one, a current Motion for Release, is missing. They don’t know … they transferred me to another clerk, she didn’t know … finally one said, “Well, maybe you should give it more time and call us back in another day or two. And I said, “Well, under normal circumstances, that’s probably reasonable, but considering we have someone illegally incarcerated, every additional minute is worth taking into account and trying to get to the bottom of what’s going on. So can you help me find the person who knows?” She transferred me to someone’s voicemail.
Leslie Dutton: And you’ve not heard back from that person?
Mardi Mason: No.
Leslie Dutton: Apparently, this isn’t the first time documents have been missing. She shared with us a couple of examples of what could be serious malfeasance of the court.
Mardi Mason: Well, it was an order for him to show cause why he shouldn’t be disbarred from practicing before the district court. So … it was extremely important. I found it by luck when I was doing research through the PACER system. The problem was, they … not only did he not get it, it’s not like it was misdirected, they never even served it. There is no Proof of Service connected to that document. On top of that, once Richard found out about it and we prepared a response, this is now one of the missing documents.
Mardi Mason: Then, they issued an order disbarring him. He filed a response to that … that is another missing document.
Leslie Dutton: We asked her if in her professional opinion did she think that this is a purposeful action on the part of the court to inhibit Mr. Fine’s ability to defend himself?
Mardi Mason: It’s making it nearly impossible. Between the documents being missing, the fact that he was denied a way to even write out his documents for the longest time, the fact that he was denied access … er, the press was denied access to him … It’s happened far too many times for it all to be accidental. This is the third case … not the third document, but the third case in which documents that have been filed have not shown up on the docket. And in one other instance, the missing document was used to justify striking one of his pleadings for failure to follow a certain rule … except that he had and they knew it, but it was the only way to justify denying his habeas corpus petition. So … the rules don’t provide for playing “hide and seek” with legal documents. Which is one reason we provide the documents ourselves on the website, so at least the public can see what they contain and know what’s going on and know Richard’s side of the story.
Leslie Dutton: Now you used the term “hide and seek” … play “hide and seek” with the documents. Could you tell me, are there court rules about the handling of documents, official documents, that would prohibit this “hide and seek” strategy?
Mardi Mason: The Federal Rules of Civil Procedure, Rule Number 27, is pretty straightforward in terms of the clerks are required to accept and file and publish pretty much everything that is submitted to the court other than certain pre-agreed sealed documents … you know, extraordinary things like that. So there is no legitimate reason why these documents aren’t appearing in these cases.
Leslie Dutton: And the “hide and seek” that the court is playing with the legal documents have a decidedly negative effect on the 70-year-old Mr. Fine.
Leslie Dutton: Well, this morning I checked the docket and Mr. Fine’s motion for emergency release, based on the brief that he’d prepared for the appeal, is now listed as having been posted on August 31st. But it didn’t appear on the docket until today, September 3rd. Has that in any way impeded his ability or their consideration?
Mardi Mason: Considering we understand that some of the judges meet on Mondays to consider such motions, yes, they cost him another week in jail. This is the same case that I called in about yesterday where I got transferred to five different clerks looking for what happened to this motion. So, now I guess now it has appeared after I questioned so many people about it yesterday.
Leslie Dutton: So phone calls, public scrutiny and pressure is having some effect on the questionable behavior of the court. To document the inconsistent behavior, Mardi Mason now uses her computer to take screenshots of PACER, the official website of the court so she can accumulate proof of the irregularities.
Mardi Mason: Well, I have learned to make copies of the PACER dockets online every time I go and so I can provide a copy of the screenshot I took yesterday … and it wasn’t there then.
Leslie Dutton: So you have a screenshot of all the dockets for every day.
Mardi Mason: Every day that I visit a particular case. I’ve just learned that things come and go, so I capture a screenshot just to be able to prove something like this … it’s not the way you’re trying to make it look.
Leslie Dutton: Why would the court not want certain documents to appear on the docket?
Mardi Mason: In this case, those documents show rampant judicial corruption.
Leslie Dutton: Mr. Fine agrees. He talked to us on the phone from solitary confinement in jail and explained exactly how and why the dockets are being manipulated by the court.
Richard Fine: We know that the documents went to the judges … because the clerk got them and first marked the document “received” instead of marking the document “filed”. And the person that makes the decision ultimately as to whether the document is filed or received is not really the clerk. It’s the judge.
Richard Fine: So the clerk has to take the document in. Then the document goes up to the judge and the judge is going to decide if that document’s going to be filed or if it’s not going to be filed. So the ultimate decision is with the judge.
Leslie Dutton: If people wanted to complain or address the situation, who can they turn to? We asked Mardi Mason, “Who can be held responsible?”
Mardi Mason: I do know the Administrative Office of the Courts … I researched and found out last night … this entity is what ultimately presides over these computer systems. So they probably would be … they work in conjunction with a national judicial commission, so they would be who I would approach for answers on how to address this kind of highly suspicious activity by a senior appellate court. … The bottom line is that every relevant Supreme Court precedent case supports Richard Fine in holding that, under the circumstances, Judge Yaffe was obliged to recuse himself. It’s absolutely crystal clear. There are no holdings which oppose that position, and that means that Judge Yaffe has no legal leg to stand on.
Leslie Dutton: Wow. This is just incredible. Whoever dreamed that this is going on in our court system.
Mardi Mason: I didn’t, and it’s still hard for me to accept that you can’t trust the basic things to have any integrity. I’ve had other people make comments to me about problems with the dockets and I kind of didn’t really listen because it just didn’t permeate my brain that that was even remotely possible. And yet I have seen now, In the past four months I’ve been working on this, so many different examples. And they all have to do with critical documents concerning Richard’s case.