From: Jeffrey Malkan [] Sent: Sunday, February 16, 2014 6:25 PM To: LRWPROF-L@iupui.

edu Subject: [LRWPROF-L] Fw: the situation at SUNY Buffalo - update

Dear Colleagues,

This message is an update on the litigation in federal district court involving the LRW program at SUNY Buffalo. I can report that the allegations I've made concerning crimes against the judicial process at the highest levels of the university have now been substantiated with five days of deposition testimony taken from senior faculty members and administrators. They all testified, without exception, that the Promotion and Tenure (P&T) Committee, on April 28, 2006, approved my reappointment and promotion to the 405(c)-protected rank of full clinical professor. All testified from their personal knowledge. Two former Vice-Deans also provided their handwritten contemporaneous notes and tally sheets of the vote count.

At his deposition, the Dean repeated the same false statements about my faculty appointment to which he had sworn three years earlier in hearings before the Public Employment Relations Board (PERB). The only person he named to corroborate his testimony was a professor who died in 2009.

In addition, he tried to justify his violation of the faculty's mandatory due process procedures by calling me an "imposter" (i.e., a legal writing instructor) whose unlawful presence on the voting faculty was subverting the integrity of the law school. Finally, he claimed that he was unable to produce my P&T dossier or any other records of my promotion because the previous administration had vandalized the Dean's personnel files before he took office to destroy evidence of my supposedly unauthorized appointment.

The Dean's perjury cheated me of a fair hearing at PERB -- an additional violation of my right to due process -- and he is now attempting to do the same in federal court.

The President of SUNY Buffalo, for his part, testified in a sworn affidavit that it would have been impossible for him to have knowledge that a crime had been committed by a member of his administration, much less to investigate my allegations, because he does not read his mail or the school newspaper and is not consulted by staff or counsel about legal matters. I’m attaching a link to this document because I know that my description may be difficult to believe.

I think I can fairly say that the evidence of Dean Makau W. Mutua's criminal misconduct is conclusive and the evidence of President Satish K. Tripathi’s complicity warrants further investigation by law enforcement agencies. Almost one year ago, on March 1, 2013, the Dean failed to show up at the

mandatory ADR session in federal court. We are now entering the sixth year of this litigation and SUNY continues to use the unlimited resources of the state to defend the indefensible.

I cannot go to the local police to report Dean Mutua's crimes as I could if he had broken into my house and then burned the house down. Law is a self-regulating profession; that is why these crimes against the judicial process and the legal profession will have to be resolved by the judicial process and through the legal profession. The resolution must include an accounting for the inexplicable refusal of the state's attorneys to comply with Rule 11 of the FRCP as well as their apparent belief that government service excuses them from the duty of candor to the court prescribed by the NYS Rules of Professional Conduct. See documents at this link.

I must add the obvious -- that SUNY Buffalo is a troubled university. I am posting this message because I believe that retaliation against the director of a legal writing program has a chilling effect on academic freedom everywhere and for all of us. I sincerely hope that this challenging and distressing litigation will result in a reexamination of professional responsibility in the NYS Attorney General's Office, the SUNY Central Office of Counsel, and the Governor's Office of Employee Relations. I also hope that it will lead to institutional reforms that will benefit the LRW program and its faculty.

Yours truly,

Jeffrey Malkan

From: To: CC:;;;;; Subject: President Satish K. Tripathi's culpability Date: Wed, 19 Feb 2014 14:10:36 -0500 Dear Mr. Jarvis, As an Employee Relations expert, you know better than I that Dean Mutua's malicious and criminal misconduct would not be tolerated at any reputable institution or corporation in the United States, much less in a state university law school. President Tripathi gave Dean Mutua unlimited power and has refused to exercise any oversight at all, even though it is clear that Dean Mutua is causing irreparable damage to the law school and its faculty. President Tripathi had time in December to fly back and forth to Asia -- over twenty-two hours of traveling for a week-long academic conference of some sort -- but claimed that he could not spare two hours to sit for a deposition, even if we met in his office and waited until Saturday so he could recover from jet lag. My attorneys were informed by his that they didn't want me harassing President Tripathi or wasting his time. He has never offered to meet with me through the many years of this litigation and he rejected my request that he attend the mandatory ADR at Hodgson Russ on March 1, 2013. (As you know, Dean Mutua did not show up for that either, although you and Mr. Sleight were there.) Dean Mutua has been terrorizing me for six years. This includes calling me an "imposter" and a "madman" and accusing former-Dean Nils Olsen and former Vice-Dean Sue Mangold of vandalizing the records of my faculty appointment in the law school's personnel files in order to cover-up my supposedly unlawful appointment. The faculty does not know how the law school's money is being spent because Dean Mutua has refused to convene the faculty's budget oversight committee. He travels all over the world in the middle of the school year at the law school's expense, meddling in the partisan politics of a foreign country. His cynicism and criminality truly shocks the conscience. As for President Tripathi, I believe that, with the benefit of Mr. Ruggeri's legal advice, has committed additional felonies by signing a false affidavit and failing to report state and federal crimes about which he has constructive and actual knowledge. I'll leave it to you to determine your own responsibility for serving in this administration. The same could be said for Provost Charles F. Zukoski, who allows Vice-Provost Lucinda M. Finley to

preside over the Office of Faculty Affairs, despite her illegal meddling in the law school and her unprofessional and dishonest behavior. I'm determined to continue pursuing my own legal course for however much longer it takes. Sincerely,

Jeffrey Malkan

From: To:; CC:; Subject: misprision of felony 18 U.S.C. sec. 4 Date: Tue, 18 Feb 2014 21:11:02 -0500 Dear Chuck and Guyora, You're both criminal law professors and I'm not. So I would value your take on this issue. The crime that Dean Mutua committed in state court has been repeated by him, after a period of three years, in federal court and the University administration refuses to cooperate or reveal what it knows. It seems to me that President Tripathi and Provost Zukowski could both be charged under this statute. Provost Zukowski is Vice-Provost Finley's supervisor, and she was personally involved in the deliberations on my reappointment, so I don't think he can profess ignorance about the falsity of Dean Mutua's testimony. In addition, he'll likely be asked whether President Tripathi's affidavit was truthful. I'm copying Mr. Jarvis on this because I assume that he reads his mail, while President Tripathi has sworn that he does not, although that assertion is hardly credible in these circumstances and would be quite easy for investigators to verify or refute.

Jeffrey Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both. Source

(June 25, 1948, ch. 645, 62 Stat. 684; Pub. L. 103–322, title XXXIII, § 330016(1)(G),Sept. 13, 1994, 108 Stat. 2147.) Historical and Revision Notes Based on title 18, U.S.C. 1940 ed., § 251 (Mar. 4, 1909, ch. 321, § 146,35 Stat. 1114). Changes in phraseology only.