Subject: Dean Makau W.

Mutua's perjury - legal analysis

From: Jeffrey Malkan (jeffrey.malkan@outlook.com)
To:
jbaker4@buffalo.edu; robert.ruggeri@suny.edu; jljarvis@buffalo.edu; jrnewton@buffalo.edu;
gbinder@buffalo.edu; cewing@buffalo.edu; ubprovost@buffalo.edu; newsroom@ubspectrum.com;
lynn.vance@goer.ny.gov; liesl.zwicklbauer@suny.edu; jereed@buffalo.edu; finleylu@buffalo.edu;
mutua@buffalo.edu;
Date: Sunday, April 20, 2014 9:45 PM

This message is part of the record I am compiling to document your refusal to respond to my
repeated attempts since November 11, 2010 to report a crime by one of your senior
administrators.

Dear President Tripathi,

I should perhaps explain Dean Mutua's culpability to you in legal terms, as I understand the
relevant provisions of the penal statutes.

1. His testimony was false. At this point, seven tenured professors have confirmed that Dean
Mutua lied about the vote of the Promotion and Tenure (P&T) Committee on April 28, 2006
that recommended my reappointment and promotion to full clinical professor. Five were
under oath (Professors Olsen, Mangold, Avery, French, Steinfeld) and two responded by e-mail
(Professors Dubber and Ghosh). Their testimonies were based on personal knowledge and
supported by contemporaneous documentary evidence, specifically, handwritten tally sheets of
the vote count. (See links below.) Not a single professor has come forward to corroborate
Dean Mutua's lies. In addition, Dean Mutua himself admitted that crucial subpoenaed
documents regarding my faculty appointment had been destroyed by the Dean's Office,
although he attempted to blame former-Dean R. Nils Olsen, Jr. and former-Vice Dean Susan V.
Mangold for vandalizing these files. Such a bizarre libel by a law school dean against his
colleagues is aberrant and unprecedented.

2. His false testimony was intentional. Dean Mutua lied under oath at the hearing of the
Public Employment Relations Board (PERB) on March 31-April 1, 2010. In that proceeding he
lied under direct examination and, on the following day, repeated the same lies under cross-
examination. His false testimony was premeditated -- prepared on four month's advance
notice -- and was intended to cause a miscarriage of justice, which he succeeded in doing. His
motivation was to justify his malicious misconduct and abuse of power, which includes breach
of contract, violation of state labor laws, defamation, tortious interference with employment
relations, misrepresentations of fact to the American Bar Association (ABA) Section on Legal
Education, refusal to comply with mandatory law school personnel and grievance procedures,
and denial of federal due process acting under color of state law.

3. His false testimony was repeated in federal court. After an interval of three years, during
which he failed to correct or recant his false testimony, he repeated and embellished the same
lies at a deposition taken on December 19, 2013 under the auspices of the federal court of the
Western District of New York. This was a second attempt to leverage the credibility and trust
conferred by his state office into a miscarriage of justice. Just as he knew that his sworn
testimony would likely be treated deferentially by any judge before whom he appears, he can
expect that he will be held to the highest standards of diligence and honesty when his perjury is
examined by state and federal prosecutors.

4. His false testimony was material to the proceedings in which it was made. Dean Mutua
falsely claimed that that the P&T Committee never considered a resolution to vote on my
faculty appointment, but instead voted only to recommend that I be granted a one-year
terminal appointment to an administrative post. On this basis, he claimed that all subsequent
employment actions taken on my behalf by former-Dean Olsen, including the issuance of my
contract and the renewal of my faculty appointment, were "ultra vires" and voidable at his
discretion. If true, this testimony might be construed to negate essential elements of my legal
claims in state and federal courts.

5. You may be culpable for protecting Dean Mutua and obstructing justice. You must recall
that, on December 5, 2013, you signed a sworn legal instrument in which you claimed that
appointments and promotions for law school clinical faculty do not pass across the
Provost's desk. You further claimed that you were unaware of my allegations against Dean
Mutua because SUNY Counsel intercepts your mail without briefing you on legal matters and
you do not read the UB Spectrum, even articles in which you are accused of wrongdoing. I
don't think it will be difficult for law enforcement agencies to determine that these careless
fabrications were materially and knowingly false.

Your motivation was to protect a high-ranking member of your administration from the
investigation of a crime. Over four months have passed since you signed that affidavit and
Makau W. Mutua is still occupying the Dean's Office under your protection. I have copied the
relevant federal and state perjury statutes below. You may want to retain outside counsel to
review the University's as well as your own liability since, on review of the evidence, I believe
that most experts in criminal law would find you complicit in this subversion of the judicial
process. In addition, the three tenured SUNY Buffalo professors who specialize in criminal law -
- Charles P. Ewing, Guyora Binder, and Luis E. Chiesa -- will no doubt give you the benefit of
their scholarly expertise, if you ask them.

Sincerely,


Jeffrey Malkan

Jeffrey has files to share with you on OneDrive. To view them, click the links below.
Vice-Dean's Sue Mangold's tally sheet of vote count 4-28-2006.pdf
Professor Dianne Averys notes on P&T Committee meeting 4-28-2006.pdf


18 U.S. CODE 1621 - PERJURY GENERALLY
Whoever

(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the
United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that
any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary
to such oath states or subscribes any material matter which he does not believe to be true; or


(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section
1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe
to be true;


is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or
imprisoned not more than five years, or both. This section is applicable whether the statement or subscription
is made within or without the United States.



New York Penal Law S 210.15 Perjury in the first degree.
A person is guilty of perjury in the first degree when he swears
falsely and when his false statement (a) consists of testimony, and (b)
is material to the action, proceeding or matter in which it is made.
Perjury in the first degree is a class D felony.