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March 24, 2014
Naomi F. Goldstein
Supreme Court, App. Div.
First Judicial Department
New York, NY 10006
Re: Sua Sponte Investigation, Docket N:2014:0398
Dear Ms. Goldstein:
Thank you for your letter of March 4, 2014, asking me to respond to the Committee’s
investigation into matters relating to U.S. District Judge Brian M. Cogan’s February 24, 2014,
order, in which he denied my application for admission pro hac vice in the District Court for the
Eastern District of New York. My response is provided below.
Owing to certain information I learned while participating in the underlying case, some of
which is revealed below, and owing to the defamatory nature of Judge Cogan’s allegations
against me, I will be taking remedial measures to ensure that this matter is completely rectified.
That said, and with the understanding that the scope of your investigation is limited, I
respectfully request that you provide me, within 20 days of this letter, or by April 14, 2014, the
Committee’s findings. I request that deadline because my remedial measures will involve
engaging other investigative and regulatory bodies as well as the public-at-large in a dialogue
about the serious implications of what I have disclosed to you in this response. As such, I extend
the Committee the courtesy of completing its investigation before I begin that remedial process.
If the Committee requires or wants additional information from me in connection with
any aspect of its investigation, I would ask that you make any such request by April 3, 2014.
Brian King, Esq.
Because my response contains numerous references to a voluminous record, I will provide you electronic rather
than hard copies of the transcripts and the other documents I have referenced. Please advise as to what email
address you would like me to send those items.
RESPONSE TO ALLEGATIONS MADE BY DISTRICT JUDGE BRIAN M. COGAN
I. Judge Cogan’s assertion that I made misrepresentations to the jury is false and finds no
support in the record.
A. Allegations regarding reference in closing arguments to petitions not in evidence.
Judge Cogan stated in his order that I made misrepresentations to the jury about a
“petition for removal of the children”, which, according to Judge Cogan, I mistakenly “believed
had been excluded from evidence.” (Cogan Order at 12-13). These allegations are false. To
clarify, the central claim in the case is that the defendant filed numerous verified petitions with
the New York Family Court, all of which contained deliberately false allegations regarding abuse
and neglect, resulting in the unlawful removal of the Southerland children from their father’s
custody. Thus, the 18 verified petitions the defendant filed with the family court in June 1997
were clearly relevant to that claim. Nonetheless, for reasons Judge Cogan has yet to clarify, the
jury was not permitted to see even one of those false petitions. (Tr. 6-6-13, 639:6-11: “MR.
KING: This is Brian King speaking. One more time with respect to your Honor's ruling, we
cannot show Mr. Woo's petitions and put them into evidence. I just want to make sure that my
objection is preserved. THE COURT: Of course, Mr. King. MR. KING: Thank you, your
Honor.”). The plaintiffs were only permitted to draw testimony regarding those petitions.
Consequently, during the course of the trial, the jurors heard over 100 references to a “petition”
or “petitions”, but they never saw any of the petitions relating to the claims at bar. As the
foregoing shows, Judge Cogan’s allegations against me are completely contradicted by the
transcripts, which explicitly show that no petitions were admitted into evidence, and which prove
that my statement to the jury was not a misrepresentation as Judge Cogan alleges.
Importantly, the document that Judge Cogan refers to in his allegation against me was not
a petition. By contrast, that document was the defendant’s June 6, 1997, sworn application for
an order permitting him to enter the family’s residence to search for an allegedly missing child.
(Woo Entry Application). That application was not at all relevant to the plaintiffs’ Fourteenth
Amendment claims, but was directly relevant to the plaintiffs’ Fourth Amendment claim of
unlawful search without probable cause. Therefore, notwithstanding Judge Cogan’s allegations,
the jury did not see any of the false petitions the defendant filed, and, likewise, I did not make
any misrepresentations to the jurors when I said that I had been prevented from showing any
petitions to them. As outlined throughout this response, the record of the proceedings reveals
Judge Cogan’s order to be demonstrably false as to every allegation he makes against me.
B. Allegations regarding reference to an email about documents having been destroyed or lost.
Next, Judge Cogan also asserts that I made misrepresentations to the jury regarding an
email that a defense attorney sent prior to trial about missing documents. However, I did not
make any misrepresentations to the jury. The incident arose when a defense attorney made a
false statement to the jury and I corrected it. More specifically, the defense attorney at issue sent
an email less than one week before trial saying that his office had lost transcripts and other
documents, including a supposed removal confirmation order. (Bowe Email). However, in
closing arguments, the same attorney stated the following to the jury: “I would submit to you that
however those original transcripts went missing, perhaps that’s how the order that Judge Turbow
issued in writing on June 13th went missing. We don’t know.” (Tr. 6-10-13, 761:14-17).
Keeping in mind the pre-trial email, the defense attorney’s last two sentences - indicating
that he did not know what happened to those documents, or whether all the documents had met
with the same fate - were both false. Taken within the context of a closing argument, the defense
attorney’s intention could have only been to place a question in the jurors’ minds as to whether
Mr. Southerland might have caused the documents to be unavailable. And if there is any doubt
as to whose feet Mr. Bowe was trying to lay blame, it is common sense that he did not mention it
in his closing argument to discredit his own client. Surely, it was an unskillful, deceitful, and
discreditable argument on the part of that attorney, which I thought the jury would ultimately
reject. Nonetheless, once he made that misrepresentation, he created an obligation for someone
else to correct the statement. That fact that Judge Cogan now accuses me of committing
misconduct by living up to that obligation – an obligation to which he was, incidentally, also
bound - yields a critical insight into the spurious nature of all of his allegations against me.
Moving forward, because the defense attorney’s accusation was indirect, I characterized
it similarly and then clarified for the jury that the attorney did in fact know why the documents
were missing: “I thought it was interesting that there was some question of whether Mr.
Southerland had somehow removed some of the transcripts. The inference was ‘hey the
transcripts would hurt him, so that's why they're not over there.’ Mr. Bowe came in here and told
you that. He didn’t tell you that he sent an e-mail two weeks ago saying that they had them but
they lost them on 9/11.” (Tr. 6-10-13, 798:18-24). In affirmation of the deceit, the defense
attorney instantly sprung up from his table and admitted right away that the email existed:
“Objection! Mischaracterizing the email and facts not in evidence”. (Tr. 6-10-13, 799:1-2).
Judge Cogan immediately overruled Mr. Bowe’s objection and admonished him to stop making
such objections. (Tr. 6-10-13, 799:3-4).
Now, in an apparent reversal of sentiment, Judge Cogan asserts that my statement to the
jury about the email was a misrepresentation. He does this despite the fact that the attorney
confirmed the existence of the email by his own self-defeating outburst only moments after I
mentioned the email. Further, I provided Judge Cogan a copy of the email prior to the trial, thus
he knows now, as he did during trial, that the defense attorney lied about it to the jury, and that I
told the jury the truth. Indeed, it was my responsibility as a trial attorney, as well as Judge
Cogan’s responsibility as the presiding judge, to correct something that we all knew was false.
It is quite telling that Judge Cogan uses this and other similar incidents to support his
allegations that I made misrepresentations to the jury. As the record reveals, I was the only
attorney involved, judge or non-judge, who made absolutely no misrepresentations to the jurors,
which was the promise I made to them in my opening statement. It should come as no surprise
that, by the time the trial was coming to a close, the jurors trusted me and distrusted Judge Cogan
and NYC’s attorneys. We had smart jurors who ultimately discovered, by observing Judge
Cogan, that he was not a credible, consistent, trustworthy, or reliable presiding judge. By
contrast, the jury knew I was credible, and detected the deceit of the defense attorneys, which is
why the jury found in favor of the plaintiffs and rejected the outcome that Judge Cogan openly
seemed to prefer. Indeed, one might fairly question the intelligence of jurors who fail to see
through a defense claim that the most critical documents were destroyed by terrorists on 9-11.
As outlined, Judge Cogan’s allegations that I made misrepresentations to the jury are false.
For good measure, I should also address Judge Cogan’s ambiguous statement that “no
such email was in the record.” As already stated, I provided a copy of the email to Judge Cogan
before trial. So, I can only assume that he is referring to whether the email had been put into
evidence. The email had not, in fact, been put into evidence before the close of evidence. To
clarify, Mr. Southerland did not testify as to what form of communication the defense attorney
used to advise that the alleged removal order was destroyed on 9-11. (Tr. 6-5-13, 555:3-5)
(“Counsel for the City stated they couldn't find it and they said that during 9-11, a plane hit that
particular page and got destroyed.”). Although Mr. Southerland did not mention that he learned
this information via email, the email was the only communication he had received about
terrorists destroying documents on September 11, 2001.
So, it would seem that Judge Cogan’s assertion is actually that I pretended not to
remember whether Mr. Southerland used the word “email” in his testimony. It is an allegation
that discredits Judge Cogan because it assumes I have an infallible memory. Admittedly, I have
a prodigious memory, which Judge Cogan seems to mistake for a photographic memory.
Notwithstanding what might seem to be a meaningless distinction to Judge Cogan, he is surely
mistaken if he thinks I can rote-memorize nearly a thousand pages of transcript testimony and
can therefore, without reviewing the transcripts, remember which particular words were used in
one particular sentence of witness testimony. Thus, I was honest with Judge Cogan when I told
him that I did not recall whether Mr. Southerland used the word email in his testimony.
My inability to recall that testimony should not have engendered any inquiry about
misconduct, for an attorney is not required -- under pro hac vice rules, nor bar ethics rules, nor
any tangible rule in the universe -- to memorize testimony and recall it upon cue. Tellingly,
Judge Cogan was presiding over the same trial and apparently did not remember himself whether
the word email was used. Hence, he asked me. He then asked the defense attorney to check the
transcript. After about 15 seconds, the defense attorney stated that Mr. Southerland did not use
the word “email.” So, Judge Cogan did not remember off-hand, and the defense attorney did not
remember off-hand and had to look it up. In a paradoxical turn, Judge Cogan now maintains that
I did remember off-hand, but pretended not to, and am thus dishonest, and, consequently,
unqualified to practice in the Eastern District of New York.
The way Judge Cogan’s accusation proceeds makes no sense. The construction goes:
Because the judge could not recall the testimony, and because opposing counsel also could not
recall the testimony, Mr. King must have recalled the testimony, and Mr. King is therefore
unprofessional and unqualified to practice in the Eastern District of New York. It is like saying,
“We think your memory is infallible, or at least way better than ours, so you’re not qualified to
practice here.” To be sure, the irony of this allegation is only eclipsed by its absurdity. It is
amazing that a federal judge would even sign his name to an order, a public document, that
makes such a scurrilous allegation, and that makes it so illogically. The reader will likely notice
that a distinct pattern is emerging regarding the allegations and conclusions Judge Cogan set
forth in his order denying me pro hac vice admission.
C. Allegations regarding references to the procedural history of the case.
Judge Cogan alleges that I committed misconduct by informing the jury that no court,
including the U.S. Supreme Court, had concluded that the defendant found “emergency
circumstances” necessary for removing the Southerland children from their home in June 1997.
I made that point, which is a fact, in my opening statement (Tr. 6-3-13, 33:21-34:1); and I made
the same factual point in my closing argument. (Tr. 6-10-13, 788:22-24). However, because the
words “U.S. Supreme Court” had not been mentioned at trial, a defense attorney found it
objectionable that I used those words in my closing argument. In light of that objection, Judge
Cogan now alleges that during my closing argument, despite “the absence – and irrelevance to
the jury – of the procedural history of the litigation,” I told the jury about the procedural history
of the litigation. As explained below, the trial record contradicts Judge Cogan’s accusations,
revealing yet again that his allegations against me are fabrications.
First, Judge Cogan seems to have forgotten that the procedural history of the case was not
only relevant, it was one of the most pivotal issues before the jury regarding the defendant’s
liability. Second, as the record reveals, because the procedural history was critical, the parties
put on considerable evidence of the history of the litigation, which meant that the evidence was
neither “absent” nor “irrelevant to the jury” as Judge Cogan alleges. Third, Judge Cogan seems
to have overlooked that he made a misstatement about the procedural history in the presence of
the jury, which made correction not only appropriate, but an obligation.
A little bit of context is necessary here. One of the plaintiffs’ Fourteenth Amendment
claims is that the defendant, a New York City social worker named Timothy Woo, removed the
Southerland children from their home and from the custody of their father without a court order.
Importantly, a social worker may only remove children from a home without a court order if he
or she finds “emergency circumstances.” Emergency circumstances are conditions in the home
that would constitute an imminent risk to the children’s safety during the time it takes the social
worker to seek a judicial order of removal. However, if a social worker decides to remove
children on the basis of emergency circumstances, he or she is then required to petition the
family court for an order affirming that such circumstances actually existed at the time of the
removal. Thus, a critical question in this case was whether the defendant obtained an order
finding that those circumstances existed. Plaintiffs maintain that Woo was unable to convince a
court that emergency circumstances existed, and that he is thus liable for that Fourteenth
Amendment violation, among other civil rights violations.
Because liability turns on whether a jury believes Woo’s assertion that emergency
circumstances were actually found, NYC’s attorneys made considerable efforts during trial to
characterize alleged “conditions” at the home as dangerous and urgent. As a fallback position,
the defense attempted to convince the jury that courts had agreed with Woo’s assessments,
although the defense could not produce a written opinion from any court making that finding.
Indeed, Mr. Southerland testified that the defense indicated prior to trial that the alleged
“removal order” was destroyed by terrorists. (Tr. 6-5-13, 555:3-5). Plaintiffs, on the other hand,
denied: (1) that the conditions alleged existed at all, and (2) even if all of the alleged conditions
existed, that they would not have prompted any court to issue an order affirming the removal. In
sum, if a jury believes both that the conditions existed and that an order was issued affirming the
same, NYC wins. On the other hand, if a jury believes that no court issued an order affirming
the existence of the alleged emergency circumstances, NYC loses. Accordingly, both sides put
on evidence of the history of court proceedings in support of the conclusion they hoped the jury
would reach. This automatically made the procedural history of the case relevant to the jury and
made the introduction of such evidence inevitable.
Illustratively, in an act of desperation, the defense asked Judge Cogan to admit into
evidence the complaint Mr. Southerland filed to begin this case in 1999. As that strategy goes,
the fact that Mr. Southerland had accused a judge in that complaint of issuing an unlawful order
was offered as proof that the judge had in fact issued such an order. Judge Cogan permitted that
exhibit to be admitted over my objection that it was irrelevant. Indeed, it is axiomatic in federal
courts that pleadings are not evidence, but are merely accusations, which are not assumed as true
in the absence of proof. The whole purpose of a trial is to determine which, if any, of the
allegations in the complaint are true. So, logically, a complaint allegation cannot also serve as
proof of what it alleges. In this case, Mr. Southerland filed his complaint 14 years ago, and the
allegations against that judge were later dismissed. So, again, the complaint itself could not
constitute proof that the judge committed the acts Mr. Southerland leveled against him. As a
matter of law, Judge Cogan made a bad call, ruling that Mr. Southerland’s initial, but later
dismissed, pleadings were relevant. But, as explained below, by making that incorrect ruling,
Judge Cogan opened the door to the rest of the pleadings in this case, and the parties walked
right through that door.
As stated, once Judge Cogan deemed the initial pleadings in the case relevant, his ruling
rendered all the subsequent pleadings in the case relevant to the question of whether a removal
order had been entered - especially to the extent that those subsequent pleadings corroborated
other proof in the case. So, my objection to relevance notwithstanding, Judge Cogan opened the
door to the entire procedural history of the case, including other pleadings, and not excluding the
petition to the U.S. Supreme Court, which handily refutes any proof that a removal order was
issued. To his chagrin, Judge Cogan’s evidentiary ruling was not just bad in a legal sense, but in
a practical sense for NYC. Certainly, if it is relevant that Mr. Southerland alleged in a pleading
14 years before trial that a judge issued an unlawful order, it is manifestly relevant that NYC
pleaded to the U.S. Supreme Court one year before trial that it should not face liability simply
because no such order was issued. One does not need a law degree to understand that simple
syllogism – it’s common sense.
Veritably, Judge Cogan would be hard-pressed even to reconcile his admission of Mr.
Southerland’s pleadings with his earlier decision to exclude all of the defendant’s false petitions.
By the same token, it would require a recherché analysis for Judge Cogan to explain how the
most dated and fallible pleading in the procedural history, Mr. Southerland’s initial complaint,
could somehow be more relevant than amended and other subsequent pleadings that incorporate
more reliable facts discovered over the course of the litigation. Keeping in mind that one of the
plaintiffs’ claims at trial was that no affirmation order was entered, it follows that Mr.
Southerland’s mistaken belief in 1999 cannot now stand as proof that such an order was entered.
It only supports the inference, as Mr. Southerland testified, that he had been misled about the
reason his children were not permitted to return home.
But all of the foregoing deductions seem to have evaded Judge Cogan’s perception as he
allowed the initial complaint to be admitted into evidence over my objection that it was not
relevant. And he clearly missed the deduction that once he had opened that door, the rest of the
pleadings were necessarily relevant to the same question. Notwithstanding the fact that he
missed all of this during trial, the takeaway from the foregoing exegesis is that Judge Cogan’s
own ruling on the complaint’s admissibility introduced into the case the discrete issue of
procedural history as reflected in the pleadings, and otherwise made the entire procedural
history, as reflected in the pleadings, relevant to the jury.
Moreover, Judge Cogan committed yet another error of judgment that brought the
procedural history into stark relief. To wit, while conducting a cross-examination of Mr.
Southerland, a defense attorney asked Judge Cogan to move a state appellate decision into
evidence. (Tr. 6-6-13, 640:8-10). Rather than seek a side-bar, the defense attorney and the
attorney for the Southerland children argued openly about whether the appellate decision was
relevant. According to the children’s attorney, the document was irrelevant. According to the
defense attorney, it was relevant because, as the theory goes, it was the equivalent of an order
affirming the existence of emergency circumstances. Instead of calling the attorneys over to a
side-bar conference, a customary – indeed necessary – precaution against tainting the jury, Judge
Cogan joined the open discussion and offered an improper opinion as to significance of other
evidence in the case, stating, aloud: “But nothing upsets the family court decision.” (Tr. 6-6-13,
640:22-23). Judge Cogan’s outburst in front of the jury was not only completely unacceptable, it
was also completely untrue.
First of all, Judge Cogan should not be commenting on the significance or quality of any
evidence in front of a jury. The attorneys are present to argue the case, and a judge is not
supposed to decide the facts and pronounce his own conclusions in front of the jury. It totally
defeats the purpose of having a jury trial if the judge can blurt out his view of the facts and his
legal conclusions in front of the jury. The jury’s role is to determine the facts and apply the law
to those facts. A judge should neither, as Judge Cogan did here, usurp the jury’s role nor the
attorney’s role. Anything otherwise begs the question of why we have juries and attorneys in the
Second, Judge Cogan’s statement was untrue for several reasons. Primarily, the two-
page order in question purported to be a 1998 order from a family court judge (1998 Order). It
mentions nothing about emergency circumstances nor any of the conditions Woo asserted were
extant at the time of the removal. Thus, the 1998 order could not constitute evidence of the
existence of a 1997 order affirming emergency circumstances. It was for that reason that the
defense attorneys attempted to prove the existence of the affirmation order via other means,
including putting Mr. Southerland’s pleadings into evidence, and including the offer of evidence
that led to Judge Cogan’s inappropriate outburst. Nonetheless, Judge Cogan proclaimed, in the
presence of the jury, that the 1998 order stood for that crucial proposition. Of course, he did not
make that statement explicitly, but he made the statement “nothing upsets” the 1998 order in
response to the defense attorney’s assertion that a subsequent order should be admitted into
evidence to prove that an affirmation order was entered. In essence, Judge Cogan had
communicated to the jury that the 1998 order was proof that Woo had obtained an order
affirming the existence of emergency circumstances. As I have stated once or twice above, it
was unacceptable for Judge Cogan to comment that way. But the fact that what he said was
untrue compounded the problem and mandated a correction.
The primary reason Judge Cogan’s statement was untrue is because subsequent orders
and rulings do, in fact, “upset” the 1998 order. To explain, this case has been up on appeal to the
Second Circuit Court of Appeals twice over the course of the last 15 years. During those
appeals, the Second Circuit has ruled twice that the burden is on NYC to prove that an
affirmation order was ever entered. On both appeals, the Second Circuit was aware, via
extensive briefing, that family court proceedings in 1998 resulted in the Southerland children
being placed in foster care. Indeed, as outlined many paragraphs above, the plaintiffs maintain
as a Fourteenth Amendment claim that the family court reached false conclusions about Mr.
Southerland because the defendant filed false petitions to mislead the family court. The Second
Circuit stated explicitly in its most recent decision that NYC may be held liable for constitutional
violations if it cannot prove to a jury that Woo obtained an order affirming the existence of
emergency circumstances. Stated differently, despite its awareness of the 1998 family court
decision, the Second Circuit found that NYC failed, nonetheless, to produce evidence that any
order had affirmed the existence of emergency circumstances. That being the case, the 1998
order from the family court had already been deemed on appeal to be insufficient for showing the
existence of emergency circumstances. Thus, when Judge Cogan stated that “nothing upsets” the
1998 order, he failed to account for the fact that the order had already been considered and
rejected by a superior court. Judge Cogan’s expressed view that nothing upsets the order can be
read as a rejection of the Second Circuit’s findings, which apparently upsets Judge Cogan’s
personal stake in the case – whatever that may be, whether emotional, social, political, financial,
or all of the above.
Further to the same point, after NYC lost the second appeal, it filed a petition with the
U.S. Supreme Court, asking that it be shielded from liability by virtue of the 1998 findings of the
family court. The Supreme Court rejected that petition, which left undisturbed the Second
Circuit’s rejection of those findings as evidence of emergency circumstances. So, Judge Cogan’s
statement that “nothing upsets” the 1998 order was untrue because the Second Circuit and the
U.S. Supreme Court rejected it as proof that emergency circumstances existed at the time of the
I should also point out that the 1998 order was “upset” in another less obvious way. If
the reader takes a look at the order, he or she will notice that it contains two different font colors.
It looks a lot like it could be a fabrication, being that the text of court orders usually tends to be
in one font color. The fact that the text in this order lacks uniformity should and did raise a red
flag with the plaintiffs. Fortunately, the Federal Rules of Evidence do not leave much room for
guesswork on such a specious looking document. That is, the rules of evidence require that a
document purporting to be an order from a state court is not admissible unless certified by the
clerk of the state court that issued it. See Fed. R. of Evid. 902(4). Yet, for reasons he has yet to
disclose, Judge Cogan permitted the document to be admitted without the required certification.
Thus, the document was not even properly in evidence. I raised the objection before trial and at
trial, but Judge Cogan ignored it both times. Interestingly, another judge in the courthouse raised
an objection to the document’s admissibility on the same grounds, but Judge Cogan did not heed
Rule 902 or that other judge’s concerns. Thus, the 1998 order was upset by virtue of the fact that
it was inadmissible under the rules and therefore was never properly before the jury.
The question here of whether I committed misconduct is similar in nature to the question
of whether I remembered the word “email.” Specifically, when I mentioned the U.S. Supreme
Court in my closing, the only objection was “Objection, your honor.” At that point, Judge Cogan
gave the admonition that the jury was only to consider evidence in the case. Because the
objecting defense attorney, who had a transcript of the entire trial, had not stated in his objection
that the basis was “facts not in evidence”, I thought that Judge Cogan was giving that instruction
out of an abundance of caution – just in case there had not been any mention of the U.S.
Supreme Court. Thus, I did not take Judge Cogan’s admonishment to the jury as an indication
that something I said was not in evidence. Indeed, Judge Cogan reminded the defense twice
The record reflects that, after my objections to the document’s admissibility were completely ignored, I used the
document to show that the 1998 family court proceedings against Mr. Southerland were entirely tainted by fraud.
Indeed, once I discovered that Judge Cogan was inexorably committed to assisting NYC’s defense, I resorted to
using every piece of evidence as an example of why the 1998 case and everything preceding it was fraudulent.
during my argument that the jury must ultimately decide, irrespective of what attorneys argue
and object to, what evidence was put before them at trial (Tr. 6-10-13, 795:5-9: “The jury will
have to figure out what's being accurately stated and what's not.” ); (Tr. 6-10-13, 799:3-4: “The
jury's got to figure this out don't keep making those objections.”). Because neither the general
objection nor Judge Cogan’s standard admonishment to the jury indicated whether the Supreme
Court had been mentioned, I tried to figure out in the middle of my argument whether it had been
mentioned or not. I did recall that there had been considerable testimony about appeals, and
even supporting documents submitted about appeals. And I wondered whether the jury might
have become confused about the testimony about appeals and Judge Cogan’s improper open
proclamation. I also considered the fact that Mr. Southerland’s initial pleading had been entered,
and that NYC’s Supreme Court petition constituted a subsequent pleading in this case. But I still
was unsure whether it had been mentioned, so I split the baby. I assumed that some legal rule
might have prevented me from bringing up the Supreme Court petition in closing argument,
although I was not sure of that, and I had been given no indication of whether Judge Cogan
thought so. Because I, like Judge Cogan, was unsure of whether it had been mentioned, I
advised the jurors, as I had in my opening, that no rules of admissibility would relieve them of
their overarching duty to find the truth – a proposition that drew no objection on any of the
multiple occasions I said it during my opening and closing argument. (Tr. 6-10-13, 799:5-10:
“My obligation is to bring the truth out. Objections notwithstanding, the truth is what you have
to find. Yeah, if we can't find the truth, this is just a silly game like Judge Ambrosio played isn’t
it? You’re a jury. Your responsibility like his is to find the truth. And so what's in your
hands?”). Because I restated this general proposition while arguing to the jury about the
procedural history of the case, Judge Cogan now accuses me of misconduct.
When all is said and done, the question is whether my telling the jury that they have an
obligation to find the truth was misconduct. As much as I know about rules and trial advocacy, I
think this raises an interesting question of whether an attorney can properly admonish jurors to
prioritize their obligation to find the truth over any other obligation. But because I have given
that same admonition in every trial without any lawyer ever objecting or any judge caviling, I
suspect that no lawyer or judge, besides perhaps Judge Cogan, would argue that the truth-finding
function of a jury must be subordinated to legal rulings that urge jurors to forget what they
already know. Judge Cogan accuses me of misconduct for reconciling the truth-finding function
with his admonishment to the jury about which truths to neglect. If he is right about it
constituting misconduct, then society can draw an interesting inference as to what the federal
court system has become and what Judge Cogan represents within that system. I wonder
whether he would stand by this misconduct allegation if asked again about the underlying
incident. In sum, this particular allegation is false if for no other reason than - if it were true, no
judge or attorney, besides perhaps Judge Cogan himself, would endorse the underlying rationale
and resulting implications for the federal court system. In any event, and notwithstanding what
judges or attorneys may think about our federal court system, the record reflects that I made no
misrepresentations to the jury.
II. Judge Cogan’s assertion that I attended a conference without Mr. Southerland’s
authorization is false and finds no support in the record.
Judge Cogan alleges that I attended a conference without authorization from Mr.
Southerland. More specifically, in his order denying me pro hac vice admission, Judge Cogan
states that I was not authorized to attend a conference. He based it upon the fact that Mr.
Southerland telephoned the Court directly after the conference and said that, as of a week prior, I
was no longer representing him in the case. This is not proof of an unauthorized appearance. As
Judge Cogan well knows, an attorney cannot just skip a conference after his client has indicated
he might proceed pro se. The attorney must attend court with the client, make an application to
withdraw, and the Court must then permit the client to be heard before deciding whether to grant
the attorney’s application. Mr. Southerland did not attend the conference in question, thus I was
in no position to make an application to withdraw. Further, even if Mr. Southerland had truly
terminated my services, it would have constituted misconduct for me to leave the case without
permission from Judge Cogan. The foregoing indicates that my attendance at the conference was
a professional obligation, not an infraction. Therefore, Judge Cogan’s assertion that I attended
without authorization is yet another one of his false allegations in support of illusory misconduct.
Judge Cogan also asserts that I committed misconduct by not telling the Court that Mr.
Southerland was considering proceeding pro se, and by not responding to an order asking for
information about Mr. Southerland’s decision. However, Mr. Southerland did not authorize me
to discuss – with Judge Cogan or anyone else – his rationale for decisions in the case or to
disclose any of our privileged conversations. I have a professional obligation to keep Mr.
Southerland’s confidences and not to reveal privileged information. As such, Judge Cogan’s
assertion that I somehow committed misconduct for not speaking or writing about Mr.
Southerland’s rationale is an additional unfounded allegation of misconduct that does not even
III. Judge Cogan’s assertion that I was late to conferences is false and finds no support in
As the record, read in its entirety, reflects, from the time I entered my appearance in April
2013, until the time the date Judge Cogan entered his order denying my pro hac vice application
in February 2014, I was late to court a total of one time. To repeat, I was late once during the
entire 10-month period I was involved with this case. And to clarify, contrary to Judge Cogan’s
assertion that I was late to “conferences”, the one incident of me being late was actually a
stormy morning during the actual trial. Stated yet again, I arrived at the courthouse 13 minutes
late one time during the trial and was never late on any other occasion. Nonetheless, Judge
Cogan now asserts that I “had difficulty arriving on time for conferences or trial.” (Cogan Order
at 6). As explained below, Judge Cogan’s allegation is demonstrably false in light of the fact
that I was late one time during the course of the entire proceedings.
Judge Cogan’s reference to the transcript is a natural place to start this discussion because
it actually reveals that Judge Cogan is prone to make misrepresentations of fact in open court as
well as in his written orders. As the colloquy he cited shows, I was late to trial on the morning of
, 2013. This prompted Judge Cogan to make several false statements on the record. To
wit, Judge Cogan stated in open court that I “missed [a] pretrial conference for being late”, and
that I “wrote a letter assuring [Judge Cogan] that [I] will not be late again.” (Tr. 6-4-13, 123:3-
11). Neither of those two asserted facts are true. The letter I wrote to Judge Cogan, which I
have attached here, indicated that because two of the Southerland children had expressed their
wish to terminate their attorney, and because those two children asked me how, where, and when
they could do so, I advised them of the procedure for attorney withdrawals outlined in Section II
above, and I advised them to meet me at the courthouse, so that the proceedings would not
commence without them. I also explained in the letter that the attorney they were seeking to
terminate had given them the wrong time for the appearance. I further advised in the letter that
when I suspected the two children at issue would likely be more than 15-minutes late, I went to
the courtroom to sign-in, expecting them to arrive soon thereafter, and ensuring that the Court
was aware that they intended to be present for the proceedings. I then explained in the letter that
I was surprised to learn that the conference began and ended without me being present nor the
parties seeking to terminate their attorney. As I pointed out in the letter, I had never known any
judge to proceed in the absence of the parties, especially where the parties were necessary for the
Court to conduct the business before it. I also expressed my surprise that Judge Cogan
proceeded in my absence, essentially denying me a professional courtesy that every other judge I
have encountered affords attorneys. However, I apologized for assuming that Judge Cogan
affords such courtesies, and ultimately acknowledged that his willingness to start without the
parties or attorneys sets him apart from other judges.
I am not sure that Judge Cogan realized that, in my letter, I was not commending him on
his firmness, but was instead trying to remind him, gently, that when he commences the
proceedings before all the necessary parties arrive, he actually defeats the purpose of the
proceedings. I had not met Judge Cogan yet, so I assumed a soft admonishment, veiled as an
apology, would remind him in a courteous way of what every other judge already clearly
understands: the proceedings cannot began on the minute if the parties intend to appear and are
merely running late. And I certainly did not mean to signal to Judge Cogan that the due process
he is required to afford the parties can be achieved by ignoring the fact that the parties were
given the wrong time by their attorney – especially within the context of proceedings for
determining whether there were grounds for the parties to terminate that attorney. Indeed, as I
outlined in Section II, the procedure for terminating an attorney requires the moving party’s
presence. By the same token, the attorney cannot argue the application in the absence of the
client without risking an unauthorized disclosure of confidential information. Only the client is
authorized to decide which facts, known only between both the attorney and the client, are to be
shared in open court regarding a motion to terminate. Despite my having given Judge Cogan the
benefit of the doubt in deciphering my uncontroversial, nay obvious, message, he still fails to
acknowledge it. I would later discover that Judge Cogan’s prompt commencement of the
proceedings, followed by his abrupt termination of the same, reflected his overall unprofessional,
if not scandalous, approach to his duties as a federal judge.
Turning back to the colloquy on the one day I was late, Judge Cogan’s first statement on
the record - that I had been previously late to a conference - was certainly untrue. I insisted on
making a record about that because it seemed to me that Judge Cogan had failed to heed my
admonishment about how he handled the conference, and that he wanted the record to attribute
his unprofessional handling of the matter somehow to me. (Tr. 6-4-13, 123:3-19). As the record
further reflects, Judge Cogan would not let me make a complete record. Of course, it is hard to
make a record when the judge repeatedly cuts one off (although it is admittedly not as difficult as
making a record when the proceedings are begun in the absence of the relevant parties).
Nonetheless, I made the record to my satisfaction when I corrected Judge Cogan’s
mischaracterization of my letter. To be sure, I never in fact “assured’ Judge Cogan I would not
be late “again”. A careful reading of my letter reveals that I merely acknowledged, gently, that
he was the type of judge, however idiosyncratic, who would, without even considering the
implications of doing so, “start on the minute, whether or not all the attorneys are present.”
Thus, when I stated “I can never assure anyone I won’t be late”, I had corrected the record as to
the contents of my letter, and as to a matter of logical certainty and dialectical tautology that
every other judge already knows.
To be sure, I am not in control of every factor that can affect my own punctuality.
Anyone who claims otherwise is either lying or naïve. Judge Cogan, still evincing, or perhaps
feigning, idiosyncrasy - if not obtuseness - proved that he was incapable of accepting the obvious
implications of beginning too early when he offered, twice consecutively, the non sequitur:
“That’s quite a remarkable statement. That’s quite a remarkable statement.” Although Judge
Cogan found it remarkable that I would not promise future promptness, he did not excoriate
other attorneys who were late. Instead, he just waited for the attorney to arrive before beginning.
(6-12-13, 911:10-17: “MS. SILVERBERG: Good morning, Your Honor. Janice Casey
Silverberg on behalf of the defendant, Woo. My colleague had an emergency just now and had to
go to the car. THE COURT: That's why you're here? (Mr. Bowe entered the courtroom.)
BOWE: Pardon me, Your Honor. I was dealing with someone using my American Express card
Similarly, although Judge Cogan found my statement about punctuality to be remarkable,
he later failed to meet his own deadline for providing jury instructions, demonstrating that my
It should be noted that transcripts do not show the amount of time that passes between statements. Several
minutes actually passed before Mr. Bowe entered the courtroom. There were other instances of NYC attorneys
arriving late, but because Judge Cogan did not open the record until they had arrived, the record understates the
number of times NYC attorneys arrived late.
remarkable statement applies equally to him. More specifically, Judge Cogan did not provide the
jury instructions until more than 20 hours after he indicated he would provide them. In fact,
Judge Cogan was so tardy in putting together the jury instructions that he had to postpone the
charging conference for a full 24 hours. Compare (Tr. 6-6-13, 643:5-9: “THE COURT: So I'll
see you all at 3:00 o'clock. Let's make it 3:30. And if you will stop by chambers at 2:30, we'll
give you copies of the charge then. In fact, make it a quarter to three, just so I'm sure we have
enough time to go over it ourselves.”); with (6-6-13, 2:30pm Email from chambers: “We will not
be holding the charging conference today at 3:30pm. … The proposed jury instructions and
verdict sheet will be emailed to you later today.”). Whereas I was 13 minutes late to court once,
it took Judge Cogan 20 additional hours to do what he represented he could do in two hours,
resulting in a full-day adjournment of the case. The only thing that is truly remarkable is that,
judging from the fact that he cites to this particular incident in his order, Judge Cogan still fails
to realize that there is nothing at all remarkable about the statement: “I can never assure anyone
that I won’t be late.”
In fairness, though, I acknowledge that Judge Cogan’s response to me coming in late
once disproved something in my June 3, 2013, letter to him. That is, Judge Cogan did not, in
fact, start on the minute despite my absence. Whether that was because I admonished him
against doing so, or, conversely, because he and every other judge already knows that would be
inappropriate, I will never know. One thing is for sure, if a judge should not start in the absence
of an attorney, then a judge definitely should not start in the absence of the parties. So, an
inquiry exists as to whether Judge Cogan’s commencement of the pre-trial conference in the
absence of the parties was based upon a belief that it was appropriate to do so, or whether he
proceeded in the absence of the parties knowing it was inappropriate to do so. The reader, like I,
must continue to speculate about that.
For the sake of completeness, I should note that the motion to terminate the attorney was
granted as to one of the two parties seeking that termination. This was over the terminated
attorney’s objection to the motion to terminate. In an ironic twist, Judge Cogan, having not
heard from the parties on the question, instructed the terminated attorney to deliver the message
that the successful party had won the termination motion, and as relief he could find an attorney
ready to try the case within three days, or, more happily (and impossibly), proceed to trial pro se;
that is – he could represent himself in complex civil rights litigation involving claims that have
been argued all the way up the U.S. Supreme Court. This should shed additional light on the
inappropriateness of proceeding on the motion to terminate in the absence of the parties, and
perhaps on the discussion in Section II as to why I did not speak for Mr. Southerland during the
conference at which Judge Cogan alleges I appeared without authorization. Without speculating
as to Judge Cogan’s rationale, there is one sure thing that can be deduced from this discussion:
notwithstanding Judge Cogan’s allegation that I repeatedly failed to appear at conferences or
trial, I was late one time during the entire ten months I was involved with the proceedings.
IV. Judge Cogan’s assertion that I made misrepresentations to the Court is false and finds
no support in the record.
Judge Cogan stated in his order that I made deliberate misrepresentations to the Court. In
support of that accusation, Cogan wrote that I misrepresented whether the parties had stipulated
to the admissibility of an exhibit, namely C-4. However, I did not make any deliberate
misrepresentation about the stipulation. I was misled as to what was in the stipulation and Judge
Cogan was directly involved in misleading me. The incident, as outlined in detail below, reveals
that NYC’s attorneys and the Court engaged in fraud regarding the exhibit.
As the reader will notice, the exhibit begins with the same bates number “0001” as
exhibits that appeared on proposed stipulations by both NYC and the Southerland children.
(NYC Proposed Stipulation & O’Neill Proposed Stipulation). Likewise, the exhibit fits the
description of “Timothy Woo progress reports” and “ACS case record progress notes” as
described in the two stipulations. And, third-wise, the exhibit falls within the date range
identified in NYC’s stipulated exhibit list. However, as the attached email and letter shows, for
reasons the Court has never stated, the Court did not require NYC to turn over to me any of their
bates-stamped documents or proposed exhibits prior to trial. Thus, I was only able to view the
exhibit beginning “0001” for the first time at trial.
Of course, because C-4 had Timothy Woo’s signature at the end, and because his
signature did not appear on any of the other pages of the exhibit, it was a fair inference that this
was part of the stipulated “Woo progress reports.” This inference was corroborated by the date
on the signature page, which fell well within the six-month date range identified on the face of
NYC’s exhibit, and which fell within two weeks of the dates recorded on the first page of notes.
However, because NYC had not provided me a copy of their exhibit, I had no idea that (or how
under the rules of evidence) the page with Timothy Woo’s signed name had somehow been
deemed inadmissible. No trial attorney would guess that a signature page of an exhibit would be
inadmissible because it is typically the signature page that provides the primary foundation of
admissibility. Nonetheless, as explained below, there was something very remarkable about this
exhibit that convinced the Court, in advance of trial, that the signature page should not be shown
to the jury.
As one would expect a trial lawyer to do, when Woo testified at trial that he had other
handwritten notes that were not in evidence, I asked Judge Cogan to publish the rest of Woo’s
notes as already stipulated to. Indeed, the notes I sought to publish were not only within the date
range provided in NYC’s stipulated exhibit list, the notes carried Timothy Woo’s purported
signature. At a side bar Judge Cogan first revealed that the signature page had been excluded.
As the transcript reveals, Judge Cogan did not say during that side-bar why the signature page
had been excluded. Fairly assuming the exhibit’s authenticity, after the side-bar I naturally
sought to admit the exhibit on the basis of the signature itself, which is as strong a basis of
foundation as one can have when the signatory witness is on the stand. In a sudden twist, Woo
testified that someone other than he had signed his name to it, which is the only testimony he
could have given that would make the signature page and the rest of the notes inadmissible. As
explained below, the bait-and-switch nature of the incident reveals that NYC and the Court
engaged in fraud in order to ensure the jury only received doctored portions of Woo’s notes that
were favorable to NYC’s defense theory.
To be sure, if what appeared to be Woo’s signature on C-4 was not authentic, then the
Court had no legitimate basis in pre-trial conferences for deeming the first two pages of the notes
admissible. When the Court first directed the parties to seek a stipulation regarding the exhibit in
question, nearly a month before trial, I inquired in an email to NYC as to the legal basis for the
authenticity of the progress notes. Yet, as already explained, the Court did not require NYC to
provide me or, even show me, the proposed exhibit before deeming certain unknown portions of
it admissible. The fact is, the first two pages of the progress notes contained everything NYC
wanted to prove via progress notes; and the rest of the progress notes were harmful to NYC’s
case. As such, I stated explicitly in a May 6, 2013, email to NYC that I would not agree to
admissibility with “missing notes or date gaps.” In response to that email, NYC decided that
instead of providing me a copy of the notes prior to the conferences, it would simply turn the
proposed exhibits over to the Court directly, thereby closing me out of in-court discussions about
admissibility. Further, the Court facilitated NYC’s concealment of the documents by imposing a
new rule that required all exhibits to be hand-delivered to the Court. (King Email). As such,
NYC hand-delivered all of its exhibits to the Court, whereby the Court thereafter made rulings
without ever permitting me any opportunity to look at any of those exhibits. The result was that
I did not learn until I tried to authenticate Woo’s progress notes at trial that there was some
problem that required him to say someone else had signed his name.
The foregoing exposition of the record refutes Judge Cogan’s accusation that I made a
deliberate misrepresentation to the Court. Quite the contrary, I was the target and ultimate
victim of fraudulent behavior that the Court was complicit in carrying out. I did not make a
misrepresentation to anyone at any time, but I was deceived multiple times in order to facilitate
the admission of tainted evidence that favored NYC’s defense strategy.
V. Judge Cogan’s assertion that I demonstrated a lack of familiarity with federal practice
and procedure is false and finds no support in the record.
The record will reveal that Judge Cogan’s assertion that I am in any way unfamiliar with
federal practice and procedure is a complete falsehood. He cites as his sole example a side-bar
conversation about how Rule 50 of the Federal Rules of Civil Procedure applies to the parties in
the case. As I outline in paragraphs below, the discussion I had with Judge Cogan reflects my
understanding of the implications of Rule 50 when witnesses are called out of order. Judge
Cogan conveniently omits that my instincts about how the rule would affect the proceedings
turned out to be quite prescient. Judge Cogan, by providing only a portion of the conversation,
has misrepresented the nature of the conversation in order to give color to yet another scurrilous
allegation that the full record contradicts entirely.
Before I launch into the full-blown analysis of how Rule 50 works and how it affected
this case, I should note that I have had extensive training in federal practice and procedure. As
an undergraduate, I fell under the tutelage of Dr. Richard Pacelle, whose specialty is federal
practice and procedure. I then came under the instruction of Arthur Miller, arguably the most
renowned professor of federal procedure in the world. Upon graduation, I was employed and
trained by a number of world-class federal practitioners at a very large international law firm
headquartered in Washington D.C.. Next, I served as a judicial law clerk in a federal court,
which required me to apply the Federal Rules of Civil Procedure with razor-sharp precision
while consulting and assisting federal judges in their decision making processes – and thereafter
reducing those decisions to written orders and opinions that cited directly to the Federal Rules
and to case law interpreting them. Finally, I spent more than a year practicing in federal courts
while employed with the most prestigious law firm in Saint Louis, Missouri. During this trial,
because I seemed to be the only attorney, judge or no judge, familiar with (or even interested in)
applicable rules in the case, I brought much of my training and experience to bear in the
proceedings before Judge Cogan. The record reflects that I not only know the rules, but that,
compared to anyone else in the case, including Judge Cogan himself, I have mastered them.
To provide background, Rule 50 permits a party to make a motion for a judgment as a
matter of law. The way it works is that a party, typically the plaintiff, will put on his or her case
first, calling all of his or her witnesses and putting in all of his or her documents, before resting
his or her case. Upon the first party resting, Rule 50 confers any other party the right to move for
a judgment as a matter of law. The motion must be granted if the moving party can show that
the non-moving party, after having been “fully heard”, failed to adduce evidence sufficient for a
jury to find in his or her favor.
However, the application of Rule 50 can be precluded when, by a stipulation between all
the parties, the first party to put on its case is permitted to keep his or her case open until some
other time during the trial. A typically agreed upon term within such a stipulation is that the
party being permitted to keep its case open must limit the scope of any returning witness’s
testimony to the matters explored before the witness completed its initial testimony. It is in fact
very rare that parties agree to proceed in this way because it entails uncertainty, creates moral
hazards, and fosters gamesmanship to the disadvantage of the party waiving the Rule 50 motion
in advance. Before moving on I will note that no such stipulation was entered in this case.
explained in detail below, although NYC had called all of its witnesses, Judge Cogan preempted
the normal application of Rule 50 against NYC by representing, on NYC’s behalf, that NYC had
not called all of its witnesses.
It should also be noted that a party’s right to call rebuttal witnesses does not frustrate the application of Rule 50.
This is because calling a rebuttal witness will not be availing or even possible if the first party fails in his or her
case-in-chief to adduce sufficient evidence to permit a favorable jury verdict. Thus, if a party has called all of his or
her witnesses, any other party may move for dismissal under Rule 50.
In what hardly seems an inadvertence, the portion of the transcript Judge Cogan cites to
in his order is meticulously snipped to give the reader a sense that he schooled me as to the
application of Rule 50. In particular, the last two statements Judge Cogan cites - with him
explaining the rule, and then with me saying “okay” right afterwards - would naturally give an
unsuspicious reader the impression that the discussion ended, and that it had ended with me
being corrected about how Rule 50 operates. But a review of the transcript (Tr. 6-5-13, 431:22-
432:10) reveals that the discussion did not end with me saying “okay”, but instead continued
further until I was satisfied that I had enriched the record as to the court-assisted means by which
NYC escaped the Rule 50 analysis:
THE COURT: That refers to, Mr. King, the adverse party, the party opposing the
MR. KING: Okay.
THE COURT: Otherwise, everyone could call their first witness and say they
want judgment as a matter of law.
MR. KING: If you could read it again, because I thought Mr. Woo, I thought his
case was already wrapped up in Mr. O'Neill.
THE COURT: They have more they want to do. They have not been fully heard.
MR. KING: I didn't know.
THE COURT: So defendant's motion is reserved until after both plaintiffs present
their case. Let's proceed with Mr. King's case.
Although a careless reader might infer from the colloquy that when I finally said “I didn’t
know”, I might have been referring to how the rule operates as to parties that have been fully
heard. A proficient reader would notice, however, that I said it in response to Judge Cogan’s
representation on behalf of NYC that it had not been fully heard. Again, according to Judge
Cogan, although NYC had called all of its witnesses already, and absent any stipulation between
the parties, they nonetheless had “more to do.” Thus, the Southerland children’s otherwise
standard Rule 50 motion had been preempted by the fact that Judge Cogan believed Woo had
more witnesses to call. Proficient readers will also notice that NYC’s attorneys made no
representations about witnesses or anything at all. Judge Cogan spoke for NYC. That is, absent
any indication one way or another by Woo’s attorneys, Judge Cogan was so sure there were
more witnesses that he announced it as a logical syllogism: “They have more to do. They have
not been fully heard.”
Judge Cogan represented with strong certitude that NYC had more to do. And for a
person so certain that there was more to do, he seemed a bit reticent about the specific things he
had in mind. Certainly, if there was more to do, then there should have been a discussion first as
to whether a stipulation could be reached between all the parties regarding Rule 50. Apparently
Judge Cogan had learned about the “more to do” in an off-the-record conversation to which I had
not been invited, and of which I had not been advised. And Judge Cogan had apparently waived
my client’s right to agree or disagree as to his right to make a Rule 50 motion. Perhaps Judge
Cogan really wondered whether I “was unaware of what a stipulation is,” as he quipped in his
recent order denying my pro hac vice application; or perhaps he doubted whether I truly
understood the operation of Rule 50 or any of the other federal rules.
Whatever his true
thoughts, he was mistaken if he thought that I had not instantly detected that his use of the
transparent “more to do” contraption was designed to preempt the Rule 50 analysis. This was
Judge Cogan’s way of ensuring the case went to the jury – irrespective of whether NYC had
made a sufficient legal case for doing so.
I walked away from that side-bar satisfied that I had underscored what I knew to be a
strategic maneuver to preempt any Rule 50 motion other than NYC’s motion. I could only
wonder whether Mr. O’Neill realized that NYC would never call another witness in the case. As
explained below, he Mr. O’Neill at least appeared to be taken by surprise when he learned later
that NYC would not call another witness in its case.
As indicated in the transcript, I opened my case directly after the Rule 50 discussion.
Because I had been given the opportunity to cross-examine both of NYC’s witnesses, and
To his defense, Judge Cogan might have fairly inferred that I was unaware of Rule 50’s implications. He may
have drawn that inference from the fact that I filed a Rule 50 motion in writing before trial instead of a Rule 56
summary judgment motion. I did that, despite the fact that the Rule 56 standard was more favorable to my client,
because the local rules prevent the filing of a summary judgment motion absent the presiding judge’s prior
authorization. With the local rules in mind, and because I had already suspected that Judge Cogan had a personal
stake in the case, I filed a Rule 50 motion to make the record reflect that both standards had been met, thus making
any jury trial in this case an unnecessary and extravagantly wasteful session of moot court. In light of his
transparent maneuver at the side-bar regarding Rule 50, there is little doubt that Judge Cogan had already read my
Rule 50 motion and had perceived it to be indisputably meritorious. His perception of the motion’s merit cannot be
reconciled with his asserted view that I do not understand Rule 50; but, then again, no perceptible amount of what
Judge Cogan has said about me is reconcilable with any other information in the record – apart, of course, from his
belief that I have a good memory.
because I examined several of my other witnesses in Mr. O’Neill’s case, I ultimately called two
witnesses in my case-in-chief, Mr. Southerland and Ciara Manning. Once my witnesses were
done testifying, I closed my case. Right after I closed my case, NYC put one of their witnesses
back on the stand, where he answered three questions corroborating the evidence already in the
case. As the following colloquy shows (6-6-13, Tr. 638:1-639:5), Mr. O’Neill, still seemingly
(or feigningly) of the belief that NYC had “more to do”, protested when he discovered that NYC
did not in fact call any other witnesses. Not surprisingly, Judge Cogan concluded that the law
permitted a misrepresentation as to whether another witness would testify, and thus it was
plaintiffs’ hard luck that such a misrepresentation had worked to the plaintiffs’ disadvantage:
MR. O'NEILL: We only learned five minutes ago that Mr. Balan was not
testifying. I'd like to ask Mr. Woo about that.
THE COURT: No, you may not.
THE COURT AND MR. KING: [unrelated discussion].
MR. O'NEILL: If I just may, Balan --
THE COURT: Argue it to the jury.
MR. O'NEILL: But Balan is under Woo's control. He was listed as a witness.
THE COURT: They have no obligation to call him.
MR. O'NEILL: But the fact that he didn't --
THE COURT: Argue it.
MR. O'NEILL: But the jury needs to know that he was going to come in.
THE COURT: No, that they don't need to know. They will be instructed in fact to
the contrary, that a party has no obligation to produce all evidence in support
of their position. That's a standard instruction. If you want to argue that they
should have, nothing stops you. But you're not going to go against this witness.
Don't argue with me on this.
Measuring by his final sentence in that side-bar exchange, it would appear that Judge
Cogan believed that the plaintiffs’ relief for having been deceived into waiving both the
opportunity to make a Rule 50 motion, and also the opportunity to question a pivotal witness, is
to argue to a jury that NYC “should have” brought the witness in. It seems that Judge Cogan is
saying that you do not argue about that particular type of deceit to a judge – especially the judge
who committed the deceit. Being that Judge Cogan was instrumental in assuring Mr. O’Neill
that the witness was coming, the suggested jury argument would seem somewhat incomplete
without reference to the colloquy between Judge Cogan and me regarding Rule 50. But because
that matter would have been above the jury’s head, I have outlined it for the instant reader.
Surely, not even assuming that the reader is familiar with rules governing the conduct of judges,
any layperson or lawyer would think that what Judge Cogan did here was unlawful.
Before turning to Judge Cogan’s final two accusations against me, I think it necessary to
illustrate the absurdity of his assertion that I do not understand federal practice and procedure.
Turning, again, to the record in this case, I first introduced myself to Judge Cogan by way of a
letter dated May 29, 2013. (King letter of May 29, 2013). In the letter I advised Judge Cogan of
the way the federal rules, binding case law, and procedural history of the case alleviated the need
for a jury trial. By analyzing various federal authorities in light of certain newly discovered and
undisputed facts, several 11th-hour party admissions, and a number of procedural and ethics
violations that precluded certain jury trial arguments, I demonstrated that a faithful application of
federal law required that a judgment be entered in favor of the plaintiffs. In that 11-page letter to
Judge Cogan, I referenced a half-dozen Federal Rules of Civil Procedure by number and
subsection, and I referenced a dozen or so court opinions or orders, most of which were issued in
this very case during its long procedural history.
Admittedly, I drafted and sent the letter to Judge Cogan less than a week before trial
began. However, because I had only learned the new facts and party admissions a few days - and
in some cases the day - before drafting the letter, I submitted the letter believing that Judge
Cogan, after having evaluated the authorities and arguments in it, would not be so inexorably
committed to NYC’s interests that he would actually flout the law and proceed to an unnecessary
and wasteful jury trial. Although I was mistaken as to what Judge Cogan would do, I was mildly
pleased with his response, wherein he ruled that NYC would be required to respond by June 13,
2013. Judge Cogan reasoned that if the plaintiffs were to lose at trial, the motion would become
moot; and, as a corollary, if the defendants were to lose at trial, the motion might prove
dispositive. As already explained above, however, Judge Cogan evaded the Rule 50 analysis at
trial by waiving my client’s rights, and by deceiving Mr. O’Neill as to what “more” NYC had to
do in the case.
I submit that the merits of the analysis and argument embodied in my May 29, 2013,
letter is what prompted Judge Cogan to pull the Rule 50 caper at trial. And after the reader has
had an opportunity to review my letter, it should be obvious that the claim that I lack familiarity
with federal practice is as dishonest as it is expedient in deflecting attention away from the
piercing analysis I provided in the letter. Certainly, if I had misstated or misapplied the laws,
rules, misrepresented facts, or otherwise flubbed the analysis, Judge Cogan, self-assuredly
knowledgeable in matters of federal practice, would have handily refuted my analysis in the
same manner that he dismissed me as unqualified to practice in his courtroom. But, for some
reason, Judge Cogan did not take up the motion at all. He did not mention it either. He simply
tabled it, relying on his hope and belief that plaintiffs were going to lose. And, judging from his
conduct throughout the trial, it appeared that he was not going to leave his hope and belief to
chance. He would strive mightily to make it a self-fulfilling prophecy. Then, on June 12, 2013,
one day before NYC was required to provide a response to my Rule 50 motion, Judge Cogan
denied the motion out of hand. Having denied the motion, and having gone so far as falsely
declaring a mistrial to ensure he would never have to take it up, Judge Cogan continued to pursue
his self-fulfilling prophesy. And based upon his conduct in the subsequent proceedings, it is
clear that he is still pursuing that quest to this day.
Because a full exposition of Judge Cogan’s pursuit of that prophesy would require more
than double the pages constituting this letter, and because the same would require the attachment
of no fewer than 120 pages of transcripts and other official documents, I must defer such a
massive hermeneutical exercise for another day. But I can assure the reader, on my word and
integrity, that the record, when unfolded, will reveal that Judge Cogan, in a display that would
dazzle John Grisham and vindicate Robert Yates, resorted to every tactic imaginable in his
inexorable, loathsome quest to ensure my Rule 50 analysis never saw the light of day: rules were
broken, cases were ignored, laws were neglected, procedures were evaded, critical evidence was
excluded, irrelevant evidence was admitted, inauthentic evidence was published, allegations
were evidence, exhibits were concealed, case notes were doctored, documents were fabricated,
fonts were multi-colored, ex parte communications were undertaken, signals were given,
misrepresentations were made, exhibit lists were kited, discussions were avoided, threats were
issued, commentary was interjected, protocols were nullified, courtesies were withheld,
confusion was feigned, jury notes were altered, jurors were bullied, court transcripts were
changed, judges were mystified, reason was suspended, insults were hurled, eyes were rolled, up
was down, left was right, forward was backward, clockwise was counterclockwise, what was
was not, and finally, an order was entered, on February 24, 2014, stating that I - having provided
the only faithful legal analysis of any attorney, judge or non-judge, involved in this case - was
“unqualified” to participate further because, among other assertions, I “demonstrated … a lack of
familiarity with federal practice and procedure.” Truly, if what I observed Judge Cogan doing in
these proceedings was real federal practice, I suspect that I have never known any other judge,
including my former bosses in a federal courthouse, to engage in federal practice. And if Judge
Cogan is right about what constitutes federal practice, I have no doubt as to what he means about
me being “not qualified to practice” in the Eastern District of New York.
I believe the reader has probably already discovered the true purpose of Judge Cogan’s
February 24, 2014, order denying my application to appear pro hac vice. But for the sake of
completeness, and in the spirit of rigor, I address below Judge Cogan’s final two allegations.
VI. Judge Cogan’s allegation that I displayed contempt for the Court is false and finds no
support in the record.
A. Allegations regarding my predictions regarding expected witnesses.
Judge Cogan alleges that I showed contempt for the Court by refusing to tell him whether
I would ultimately call the witness Ciara Manning. First, I must make one thing absolutely clear:
I have never harbored, expressed, nor shown any contempt for any United States District Court.
I am a former U.S. Marine, thus, by my nature, I could not possibly harbor, express, or display
contempt for any creation of the U.S. Constitution. Thus, by extension, I could not possibly
harbor, express, or display contempt for any U.S. District Court, nor any other court organized
under Article III of the United States Constitution. Now that I have made that abundantly clear, I
turn back to the allegation that I showed contempt for the Court regarding the witnesses I
ultimately called in my case.
Judge Cogan asked me to predict the future. I could not (and still cannot) do that. I am
decent at making predictions, but I cannot tell anyone what the future will hold – or even if I will
be late. In this case, I could not determine whether I would call Ms. Manning because I could
not predict whether Judge Cogan would arbitrarily exclude the documents that might have
rendered her testimony unnecessary. I raised that issue prior to trial and the Court deemed the
documents inadmissible for unstated reasons. Thus, I contacted Ms. Manning and she agreed to
testify. On the day Judge Cogan asked me about my plans for calling witnesses, Mr. Southerland
had yet to take the stand. As such, I could not know whether Judge Cogan would maintain the
position that all of Mr. Southerland’s exhibits were inadmissible. It turned out that Judge Cogan
only admitted one or two of Mr. Southerland’s exhibits, so I ultimately called Ms. Manning as a
witness to prove exactly the same information contained in the documents Judge Cogan had
excluded without explanation.
To Judge Cogan’s credit, he was correct that I should have predicted that he would make
the wrong ruling on the documents, and thus force me to put Ms. Manning on the stand. That is,
Judge Cogan alluded that he knew which documents I intended to introduce to the jury; and he
simultaneously pretended to believe that he thought such an introduction would have been a
mistake on my part. So, he spent time at a side-bar and a subsequent conference trying to get me
to show him the specific documents I had in mind. More specifically, rather than permitting me
simply to lay a foundation pursuant to the rules of evidence, he demanded that I first “proffer”
the documents, so that he could “protect the record”. He suggested that I might have been
mistaken as to the date of the documents, so I had to show him the documents first -- to make
sure I was not really hurting my client by admitting them. But I knew what he really meant by
protecting the record. It meant that if a document were helpful to my case, he would exclude it
arbitrarily as he had done to virtually every document that helped my case. Nonetheless, I easily
read his deception because he has a common, obvious tell that permitted me to observe when he
was bluffing. In all truthfulness, if I can tell the future at all, it is because I can look at Judge
Cogan and thereby tell when he is bluffing. Similarly, it was clear to me long before Ms.
Manning testified that Judge Cogan had no idea how impactful her testimony was going to be on
the jury. She was, without a doubt, a star witness. So, by excluding the documents, Judge
Cogan had simply outwitted himself again.
Turning back to my unprofessional lack of soothsaying ability, because Mr. Southerland
would be subject to cross-examination before leaving the witness stand, I knew that questions
asked during the cross-examination itself might have necessitated calling Ms. Manning to the
witness stand after Mr. Southerland stepped down – even in the event that Judge Cogan had
deemed all the documents admissible. As such, I told Judge Cogan, honestly, that I did not know
whether Ms. Manning would testify. It appears from the record, and from the nonverbal
behavior he exhibited in-person, that Judge Cogan was trying to bully me regarding whether I
would call Ms. Manning. But, again, because I can easily read him, I called his bluff and he
backed off, stating, “Mr. King, I’m not trying to intimidate you.” Certainly, where I had already
observed Judge Cogan make the misrepresentation that NYC had additional witnesses, I knew
that he was outright lying when he said: “it is common practice to identify who your witnesses
are going to be the day before you call them.” Indeed, Judge Cogan had so underestimated my
faculties up to that point that he telegraphed all of his strategies - giving me an additional
advantage by virtue of his hubris.
B. Allegations regarding Judge Cogan rolling his eyes.
I, along with every other person in the courtroom who was paying attention, saw Judge
Cogan rolling his eyes. It prompted me to ask him whether he was irritated. He denied that he
was irritated. He then denied that he rolled his eyes. I made a transition statement. Everyone
moved on – except, apparently, Judge Cogan.
This is a fitting way to end the analysis. Everything I had observed Judge Cogan do to
that point had revealed his unflinching commitment to assisting NYC in the litigation. If there
were any single reason to commend him on his efforts, though, it would have been for his ability
to maintain a truly stoic demeanor throughout the process. While his tell was a dead-giveaway,
there was still something to say about the phlegmatic sophistication he seemed to have been born
to portray. Judge Cogan no doubt found his Ivy League alma mater a suitable proving ground for
donning a perpetual stiff upper lip; and I observed that it was not at all common for him to break
character in that regard -- except when, as reflected in the record, he rolled his eyes.
Yet, Judge Cogan denied having rolled his eyes. And considering that my eyes are quite
fallible - hence my need for glasses - and considering the distance between the bench and my
position near the gallery in the back, many could doubt whether I was actually able to see him do
it. Nonetheless, by that time, I had observed him for several days in a row and there was no
question that he was miffed. But, in witnessing the fervor of his denial about the eye rolling, I
made one more crucial observation about him that I had not notice before. The observation was
that before that moment, he had yet to realize that he was his own biggest problem. To clarify,
when he rolled his eyes, it was the first time he seemed to grasp the burden he had created for
himself by trying to bring about a preferred outcome, rather than the required outcome. I felt
sorry for him, and I figured that – after denigrating the plaintiffs, the Constitution, the law, the
appellate courts, the federal rules, the lawyers, the witnesses, the jurors, and himself, wasting
everyone’s time in an egoistic game – he rolled his eyes upon discovery that he had been totally
ineffective in bringing about the specific outcome he preferred in the litigation, despite his
fiercely impelling inclination to do so. Not only had he failed to succeed in attaining that
outcome, but he had lost all footing whatsoever, falling headlong, nay tumbling into the chthonic
depths from which he drew his inspiration. He falls presently – from greater heights still than
Icarus, Phaethon, or even the brightest angel, who plunged as all favorites must. Article III could
not have contemplated a more abysmal descent, although Yates predicted it. Indeed, if Judge
Cogan had simply applied the laws and rules of the Constitution with the slightest tincture of
good faith, I would not be finishing up a 30-page exposition detailing misconduct that would
subject any other federal judge to impeachment by the U.S. Congress, if not indictment by the
U.S. Department of Justice.
Despite all that has happened, and despite all the false and defamatory accusations Judge
Cogan has made against me, I harbor no feelings of contempt for him. Instead, I pity Judge
Cogan. I also pity the countless past and current parties to lawsuits who have mistakenly placed
faith in Judge Cogan to perform his judicial role faithfully. I also pity the other attorneys Judge
Cogan has attacked for providing faithful legal analyses. I pity the Southerland plaintiffs, who
still await the redress that Judge Cogan still seeks to preclude. I pity the other judges in the
Eastern District of New York, who have been denigrated and defamed by Judge Cogan’s
unprecedented misconduct. And, finally, I pity those who have been misled to believe that my
dutiful opposition to Judge Cogan’s quest to subvert and flout the laws of the United States
somehow makes me “unqualified” to practice law in the Eastern District of New York.
Brian King, Esq.