Update: Supplemental Memo to John Durham, judicial misconduct, and racial bias

Update June 10, 2010

The underlying criminal complaints referred to below, involving state and federal judges, are still pending, and based on my information and belief, the new U.S. Attorney for Los Angeles has not been officially appointed. Steven Hintz, the former Ventura County judge under investigation, after being forced (or persuaded) to retire, has now run for public office (treasurer-tax collector) and has succeeded in receiving enough votes for a general election runoff. However, he accomplished his success by misleading Ventura County voters, which violated a state regulation regarding ballot designations, among other things. Hintz could not accept the government's leniency in not prosecuting him by keeping out of public view, as some others (who were extended the same leniency) have done. His arrogance and character would not allow him to.


This is an update to the Supp. Memo below. March 15, 2010

The underlying criminal complaints referred to in the original Memo and Supplement, as well as the original and supplemental memos to John Durham themselves, are still pending. We have not been contacted by the Justice Department to either inform us of the status of any investigation or to inform us of our rights, including the right to restitution, in violation of federal law. And, each day that passes presents a continuation of the violation. Each day also presents a new cause of action for any civil action desired. The Justice Department's failure to contact us may either be legitimate and in good faith or illegitimate and in bad faith. But, the fact that federal laws are being violated in the failure to contact, points to an illegitimate reason for the failure. Furthermore, we have not received a response from John Durham either . Not even to acknowledge receipt of the memos. This is remarkable. But I do have some indications that something is being done. Whatever happened to John Durham (and his torture investigation)? From my understanding, there is a pending oversight hearing of the Department of Justice and the Attorney General before the Senate Judiciary Committee next week. Perhaps some questions will be answered at that time.


This is an update to the Supplemental Memo below. February 18, 2010

The underlying criminal complaints referred to in the original Memo and Supplement are still pending, as well as the original and supplemental memos, to John Durham, themselves. It is noteworthy that the L.A. Times, in an article pointing out the ( here, unnamed) newly nominated and now confirmed U.S. Attorney for Los Angeles, insinuated that former U.S. Attorney Thomas P. O'Brien left office because of an internal problem within the U.S. Attorney Office. But, O'Brien was removed from office by way of resignation after a federal criminal complaint was lodged against him for filing a false and fraudulent statement and for obstruction of justice. Moreover, the Daily News recently wrote an article on 9th Circuit judge Harry Pregerson generally praising him for rulings that he made over the years, some of which benefitted minorities, yet, the article did not point out that there is a pending criminal complaint lodged against him for obstruction of justice, and that some of his rulings or decisions have denied a minority member due process rights. This is only to say that regarding the matters of the memos, the mass media cannot be relied upon to tell the whole story about some of the principals involved therein.

(Title address omitted)

TO: John Durham, Special Prosecutor

FROM: Laurack D. Bray, Esq., Harold James Griffith, and
Jeanette M. Andrews

DATE : January 12, 2010

SUBJECT : SUPPLEMENTAL MEMORANDUM (TO ORIGINAL) FOR THE PURPOSE OF PROVIDING HISTORICAL AND/OR CONTEXUAL FACTS FOR OUR CIVIL RIGHTS COMPLAINT AGAINST VENTURA COUNTY JUDGES; AND OF PROVIDING FURTHER CONTEXT FOR OUR COMPLAINTS AGAINST THE IDENTIFIED FEDERAL JUDGES, BASED ON THE SAMULE KENT CONVICTION AND IMPEACHMENT

Mr. Durham, this supplemental memorandum is submitted primarily for the purpose of providing some historical facts about Ventura County regarding race and/or civil rights that was omitted from the original memorandum, but which we believe are significant in helping you with your decision as to whether to honor our request to act as an independent special prosecutor or expand your investigation to include our civil rights complaints against the Ventura County, California judges and the other high level accused (hereinafter “defendants”, for ease of understanding), including the federal judges and other officials, i.e., former U.S. Attorney for Los Angeles and Clerks of the Ninth Circuit Court of Appeals.



I.
THE RODNEY KING CASE AND THE ENSUING LOS ANGELES RIOTS OCCURRING THEREAFTER PROVIDES THE BACKDROP AND FOCAL POINT OF THE CIVIL RIGHTS AND/OR RACIAL HISTORY SURROUNDING VENTURA COUNTY, CALIFORNIA, WHICH WE BELIEVE PROVIDES ADDITIONAL CONTEXT FOR THE RACIALLY DISCRIMINATORY ACTIONS OF THE VENTURA COUNTY JUDGES IN THIS CASE.
As a starting point, Ventura County, California, at the time of the Rodney King police officers trial there (in the City of Simi Valley)(and we will assume your knowledge and/or understanding of the essential facts of the Rodney King police beating incident, trial, and riots pursuant thereto), as well as the starting time of the actions in our case(s)(2003)(while we use the terms “our” and “we” because the complaints of all complainants herein were combined into the same complaints, the Ventura County matter—which was the catalyst, we believe, for all the subsequent and related incidents of racial bias that occurred throughout the district court and ninth circuit court of appeals litigation—centered on Bray, the undersigned here (who is African American), only), was composed of only a 2.3 percent black population. And, at the time of the Rodney King police officers trial, “the Simi Valley community had a reputation as being inhospitable to African Americans. When Simi Valley was being developed in the 1950’s, signs proclaiming “No niggers or dogs allowed” proliferated among the multicolored rock formations that are the community’s most beautiful natural feature.” “Official Negligence”, Lou Cannon, Westview Press, 1999. “The county’s representatives in the legislature were then the most conservative in the state, and the pro-police attitude of Ventura County residents had consistently been reflected in the performance of the county’s juries. Shortly before the Rodney King incident, a Ventura County jury had exonerated an Oxnard police officer accused of brutality.” Id. at 183.
“In fact, no other California county would have been as likely to produce a jury favorable to police defendants. Even Orange County, which the defense had proposed as a trial site, had more blacks in jury pools.” Id. at 181. “In Ventura County, . . . (Rodney) King was a potent symbol that stirred white fears.” Id.
Lastly, the Rodney King police officers’ trial originally began in Los Angeles County, but, pursuant to the grant of a change of venue motion, was subsequently transferred to Ventura County. “Superior Court judge Stanley Weisberg astonished legal experts by moving the trial of the officers involved in the King beating to Simi Valley, a famously pro-police enclave in Ventura County.” Id.
More contemporary facts regarding Ventura County and its racial makeup, as identified in our complaint, are that at the time that I (Bray) was illegally evicted from my home-law office, I was the only black or African American lawyer in the city of Ventura with a private practice and I was the only black lawyer in Ventura County with a private practice emphasizing federal law, and the defendant Ventura County judges, Steven Hintz, Barry Klopfer, David Long, and Ken W. Riley, knew or should have known, that there were only a few black lawyers altogether (perhaps 10 or thereabouts) practicing in Ventura County . Moreover, for the short time that I practiced there, before my office was shutdown, it was clear that my services were needed. See the cited reported cases in my original memo. I represented both minority and white clients. And, it is the white clients, Mr. Griffith (denial of social security disability benefits and backpay) and Ms. Andrews (disability discrimination and denial of a default judgment motion), whose cases are at the center of much of, though not all, the criminal and discriminatory conduct performed by the federal judges and other officials.
The foregoing are just a few historical facts to place our civil rights criminal complaint against the Ventura County judges in proper perspective, so that the case is not viewed as some isolated incident of discrimination without any history.
II.
THE CONVICTION AND IMPEACHMENT OF FEDERAL JUDGE SAMUEL KENT WOULD CLEARLY MAKE THE NON-PROSECUTION OF THE JUDGES IN THIS CASE , A CASE OF SELECTIVE PROSECUTION.
The Department of Justice, through its Public Integrity Section (rather than the U.S. Attorney, for some reason—in our case, the U.S. Attorney refused to prosecute or submit the matter to a grand jury, even for the state judges) prosecuted judge Kent for several crimes, but, as I understand it, judge Kent plead guilty for the crime of obstruction of justice, based on making a false statement to the Judicial Council (investigative committee) of the Fifth Circuit, which was investigating a misconduct complaint filed against the judge by female court employees .
For several of the accused in our complaints, who are charged with making false statements and with obstruction of justice, their conduct is virtually no different from judge Kent’s, other than the statements are made in writing rather than verbally. Therefore, if the Justice Department prosecuted judge Kent for his obstruction of justice conduct, based on false statements made in the course of either Executive, Legislative, or Judicial proceedings, it must do the same for the accused in our complaints, especially for those that the FBI or the Department of Justice caused to “retire” (or resign)(which evidences that the FBI or the Department of Justice found sufficient probable cause evidence that a crime had been committed by the “retirees”—to include retirements or resignations—i.e., caused to retire or already retired at the time of the accusatory conduct), that is, the Judicial 7, California state judges Steven Hintz and Barry Klopfer, federal district judges Terry Hatter, Jr.(Central Dist., CA), Dickran Tevrizian(Central Dist., CA), and William Schwarzer (Northern Dist., CA), 9th Circuit Clerk Cathy Catterson, and U.S. Attorney for L.A., Ca., Thomas O’Brien, to pressure them into retiring or resigning. Otherwise, it is clearly a case of selective prosecution. Furthermore, and conjunctively, another aspect of irreversible selective prosecution favoring the retirees here, as to judge Kent, is that the retirees, we believe, were offered the options of the government seeking an indictment or retiring from the bench. We doubt if judge Kent was presented with those options prior to indictment, otherwise, he would not have been trying to recover disability retirement after conviction and sentencing. If he was offered the options (which would mean that he had a change of heart or regret after conviction and sentencing) , then, there was not selective prosecution. If he wasn’t, there was. So, we urge you to prosecute these cases (both the retirees and any others where sufficient probable cause evidence is found) the same as was done for the case of former district judge Samuel Kent, that is, present the cases to a grand jury for indictment.
III.
CONGRESS HAS PASSED LAWS PROVIDING FOR THE RIGHT OF RESTITUTION FOR VICTIMS OF CRIME, YET, THOSE LAWS ARE MEANINGLESS UNLESS A CRIMINAL IS INDICTED AND CONVICTED, AND ONLY THE DEPARTMENT OF JUSTICE CAN INITIATE AND ACCOMPLISH THIS.
The right to restitution is simply a symbol without substance if Defendants are not prosecuted and convicted, because restitution is part of sentencing, which follows conviction. So victims of federal crimes must rely on the Justice Department to help them realize that right. Thus, when the Justice Department allow otherwise criminals to escape conviction and the payment of restitution, it does a disservice to both the general public (by the failure to prosecute and obtain a conviction, and, for judges, this seems peculiarly true, because judges are in positions of trust and power, and they must determine many times fundamental rights of the parties before them) and victims of crime in particular, who cannot secure or exercise the statutory right of restitution without the direct assistance of the prosecutor. In other words, victims cannot secure restitution themselves. Rather, prosecutors must secure it for them. And, prosecutors certainly cannot secure that right by allowing otherwise criminals to “retire” rather than face indictment. They could do so by the so-called NPA (non-prosecution agreement), which requires the payment of restitution in exchange for a decision not to prosecute, but the government chose not to exercise that option in this case.
Before we continue further, we must make it clear: we are not on any vengeance-seeking vendetta against these judges. We are not now and we have never been on such a venture. We are seeking prosecution of these particular judges because we believe that they have committed criminal and discriminatory conduct during the course of their governance of our cases; and that the said conduct has caused us injury or damage.
Again, restitution in this case would include a return of my home-law office (the same law office that was illegally taken from me through an unlawful eviction) through injunctive relief and compensation for the losses suffered; for Mr. Griffith, it would mean compensation for the unlawful denial of social security disability benefits owed him, so that he can help provide for his sons in adulthood what he could not provide during their pre-adult years because of the unlawful and/or unconstitutional actions denying him benefits; and for Ms. Andrews, it would mean rightful income to assist her with independence and self-reliance, which she should have earned legally based on her employment with the Department of the Navy—the Navy released her after refusing accommodations for a disability she acquired on the job.
III.
WE BELIEVE THE BI-PARTISAN HOUSE IMPEACHMENT TASK FORCE, BASED ON THEIR FINDINGS AND/OR CONCLUSIONS IN THE IMPEACHMENT OF JUDGE KENT, WOULD IMPEACH , AT MINIMUM, THE “RETIREE” JUDGES IN THIS CASE, AND, IT WOULD BE AN INJUSTICE TO THE TASK FORCE’S IMPEACHMENT PROCEEDINGS TO ALLOW JUDGES AND OTHER OFFICIALS HERE, WHO HAVE DEMONSTRATED THE SAME OR SIMILAR CONDUCT AS JUDGE KENT, ESPECIALLY AS IT PERTAINS TO THE FALSE STATEMENT AND OBSTRUCTION OF JUSTICE CHARGES, TO ESCAPE PROSECUTION OR JUSTICE FOR THEIR CONDUCT THROUGH PURPOSEFUL “RETIREMENT” OR A FAILURE TO PROSECUTE.
Although some of the facts supporting Judge Kent’s impeachment by the House (and the House Judiciary Committee and its Impeachment Task Force (“HITF”)), are quite different from this case, such as the years of repeated sexual abuse of the two female employees of the District Court by judge Kent, certain facts are quite similar, and, indeed, it is those quite similar facts that we rely on in stating that the HITF would almost certainly impeach some of the federal defendants here, given the opportunity. Those similar facts evolve from the false statement articles of the impeachment. The false statement articles were simply based on the fact that judge Kent made false statements to federal officials investigating the claims of the women who had brought misconduct complaints against him. The essential fact however was simply lying to officials regarding material facts (in the course of Executive, Legislative, or Judicial proceedings), which was found to be for the purpose of obstructing justice. And, that is the same essential fact that we relied on for several of our obstruction of justice charges in our complaint. So we believe some of the findings or assertions made by some of the HITF members regarding judge Kent are equally applicable here. Moreover, as to one federal judge, retired judge Dickran Tevrizian, USDC, Central Dist. of CA, and the former 9th Circuit Clerk, Cathy Catterson, there is ample evidence that would support a charge of “aggravated judicial and racial abuse”, so as to make the sexual abuse charges in judge Kent’s case, applicable as well. We have outlined the conduct in various documents including our complaints filed with the Department of Justice (U.S. Attorney’s Office), misconduct complaints filed with the Ninth Circuit, petition for a writ of mandamus filed in the 9th Circuit , and our Memorandum submitted to you.
Some of the conclusions reached by the HITF that we find applicable here are as follows:
Rep. Lamar Smith ( R) Texas : When a judge is given a lifetime appointment, it is a tremendous honor and responsibility. They must be held accountable for any violation of those principles of justice. Judge Kent violated his oath of office and obstructed justice by lying to federal officials.
Rep. Adam Schiff ( D) California (Chairman of the task force): Making false statements to fellow judges as well as abusing power were independent grounds that would justify and warrant judge Kent’s impeachment and removal from office. There are two broad categories of conduct that have been recognized as justifying impeachment: (1) serious abuse of power and (2) conduct that demonstrates an official is unworthy to fill the office that he or she holds (i.e., bad behavior).
Rep. Bob Goodlatte ( R) Virginia (Ranking member of the task force): When a judge so clearly abuses his office, it becomes necessary to take the appropriate action to restore the confidence of the American people in their judicial system.
Rep. Sheila Jackson-Lee (D) Texas: Article 3 judges must in essence be persons of good behavior. This judge is not of good behavior. He has been convicted of a felony and the felony is obstruction of justice. There is the responsibility, constitutionally, to follow the law. We must act.
Rep. Dan Lungren ( R) California : Constitutional judges shall hold their offices during good behavior. That’s the starting point of our inquiry here in this impeachment. Some people mistakenly believe that you need a criminal conviction as a condition precedent to us acting. That is not true and has never been true.
Rep. Steve Cohen (D) Tennessee : This judge has abused his office and justice by pleading guilty to obstruction of justice, committing obstruction of justice, and lying to an official panel. This man does not disserve his pay, he does not disserve his position, and he does not disserve his pension.
Rep. Steve King ( R) Iowa : We have I think added to today the definition of high crimes and misdemeanors. The high crime and misdemeanor we are talking about is sexual abuse of subordinates. ( NOTE : We believe an additional definition of high crimes and misdemeanors is judicial and racial abuse, which would be applicable to judge Tevrizian, and especially “aggravated” judicial and racial abuse ).
Rep. Paul Broun ( R) Georgia (speaker) : It’s about time for this body to do its constitutional authority to be a check on judges. Unfortunately, this Congress has not fulfilled its constitutional authority in many instances.
Rep. Jerrold Nadler (D) New York : In circumstances such as these, where judge Kent misused the power of his office to undermine rather than to uphold the law, where he abused his power as a federal judge by lying to the 5th Circuit investigatory committee about that, our duty to impeach is clear.

Therefore, it seems clear that even if you (or the Department of Justice) do not prosecute the individuals identified in our complaints, the federal judges would be subject to impeachment, and those found to have made false statements in the course of judicial proceedings almost to a certainty would be found to have obstructed justice, under the same basis as judge Kent, and if charged with articles of impeachment, would be impeached (for committing High Crimes and Misdemeanors), as was judge Kent, by the House of Representatives.
For those individuals where some action was taken, i.e., the “retirements”, it would be an insult to the HITF not to submit their cases to the grand jury. Because in those cases, it seems clear that the FBI found sufficient evidence to present to a grand jury in order to convince the individuals (both state and federal) to retire or resign. Further, since criminal prosecution, in this instance, precedes any impeachment proceedings, it would be a disservice to the House Judiciary Committee and Congress for you not to prosecute cases that should be prosecuted, because it might likely (with resignations based on indictments) prevent Congress from having to consider impeachment or to impeach (and undergo impeachment proceedings), where it is clear that certain individuals have exhibited “impeachable conduct”. And, the minimum or basic constitutional standard, i.e., “bad behavior” (in violation of the “good behavior” constitutional requirement), makes it clear that most of the federal judges charged in our complaints have committed impeachable conduct.
Consequently, we believe that the House Impeachment Task Force has an interest in these proceedings, to the same extent as it did in the judge Samuel Kent impeachment, especially if none of the federal defendants are prosecuted and convicted, see, e.g., the case of former district judge, now Congressman, Alcee Hastings, who was acquitted at trial, but was subsequently impeached. So we shall submit a copy of this Supplemental Memo to the HITF for its review.

IV.
AS BAD OR OUTRAGEOUS AS JUDGE KENT’S CONDUCT WAS IN ATTEMPTING TO MAINTAIN A SALARY WHILE IN PRISON, THE CONDUCT OF THE U.S. ATTORNEY’S OFFICE IN LOS ANGELES AND THE RETIREES WAS WORSE.
As bad as judge Kent’s conduct was in attempting to collect a salary while in prison (being convicted of a felony), the conduct of the Department of Justice (U.S. Attorney for Los Angeles—Central District of L.A.) and the “retired” judges herein was worse . Why? Because when judge Kent attempted to collect his salary and subsequently disability retirement, he had been indicted by a grand jury, pled guilty or admitted to a charge of obstruction of justice and convicted of the same charge; he had to pay a fine and he had to pay restitution , and he was sentenced to and serving 33 months of prison time; to the contrary, when the “retiree” judges in this case received a retirement salary and/or pension benefit , they had not been indicted, convicted, or sentenced, nor had they been made to pay a fine or restitution. Moreover, their retirement, to the public, was treated as a dignified retirement, as if they had done nothing wrong. When , in fact, they were charged, by complainants, with committing criminal conduct, and where, in fact, we surmise, the FBI had found sufficient probable cause evidence of criminal conduct to submit to a grand jury for indictment ( but, chose instead to offer the retirees the options of facing a possible grand jury indictment or retirement—and , of course, the retirees chose retirement). Therefore, unlike judge Kent, who had been severely penalized, punished, and ridiculed when he attempted to collect a taxpayer salary in prison, the retiree judges in this case received retirement benefits without facing indictment, without any penalty or punishment (e.g., fine or restitution) or prison time, and without any public ridicule . And, judge Kent, after paying a severe price for his criminal conduct, was denied benefits ; while the retirees in this case, after having paid no price for their criminal conduct (unless one considers early retirement a price—and we do not), continue to collect benefits . We believe the U.S. Attorney’s Office’s conduct in allowing the retirees here to collect taxpayer benefits without paying a penalty is worse than judge Kent’s conduct in attempting to collect benefits after having suffered severe consequences for his criminal conduct.
Lest our position here is misunderstood, we must state that our argument is not in defense of former judge Samuel Kent, in no shape or form. Rather, our argument is directed to the proposition that other judges who have exhibited the same or similar conduct as judge Kent should be given the same or similar treatment.
We urge the HITF to monitor these proceedings (our memos to you, John Durham, and the Justice Department’s treatment of our complaints) and act accordingly; especially, if the Justice Department does not seek indictments or otherwise provide for restitution for the victims.
A failure to at least present the evidence of racial discrimination and conspiracy to a grand jury, especially where certain of the individuals have been charged with making false statements in an appellate opinion in pursuance of the conspiracy and discrimination, would give the perception that you are “indifferent” to racial discrimination by judicial officers.
Finally, as long as the Department of Justice continues to not contact us regarding our criminal complaints, especially regarding providing us the status of any investigation of the complaints and informing us of our rights, including and especially the right to restitution , it continues to be in violation of federal law, clearly civil and probably federal criminal conspiracy law, based on any agreement between the U.S. Attorney’s Office, L.A. and the FBI not to provide us the information, where both are responsible for doing so.


Respectfully,

Laurack D. Bray, Esq., and on
behalf of Harold James Griffith
and Jeanette Andrews

cc: Attorney General Eric Holder
House Impeachment Task Force