Upcoming 209A Forum - Recommended

False Allegations Restraining Order Forum

Defending Yourself in Court

Thursday November 8th from 7pm to 9:30pm

Marriot Courtyard Westboro at Route 495 and Route 20 intersection. One
block West of 495

Massachusetts courts have been issuing domestic abuse restraining orders (Ch. 209A) at the rate of about 40,000 per year. Judges give them out even if a person claims to have a vague fear. Once an order is issued, the defendant can lose his house, his children, his guns, his livelihood, and sometimes his life.

Something must be done to help those who are falsely accused. Of course, no one defends actual abuse. However, some lawyers say that as many as 95% of restraining orders are issued on false allegations, for reasons like breaking up with a boyfriend, or getting a leg up in a divorce. This is abuse of the purpose of these orders. The phrase used by lawyers is that they are “given out like candy”. At this
point, a mere claim of “Fear” is sufficient to issue these devastating restraining orders. Even though the Mass. Appeals Court has said this is NOT lawful most judges are ignoring the Appeal Court guidelines. The result is destroying parents and children’s lives.

Education and legislative efforts are underway to stop this unconstitutional law and prosecute false accusations to stop this destruction. False accusations and restraining orders have become a tool to tear apart families, and traumatize children, when no domestic violence has occurred and there is no proof that
they help anyone. In fact some studies show they cause far more problems than they prevent.

LEARN HOW TO FIGHT A FALSE 209A RESTRAINING ORDER IN COURT INCLUDING:
1. What to do when you suspect an order is on the way.
2. How to prepare for your day in court.
3. How you can defend yourself against false allegations and claims of fear.
4. How to get evidence that will win.
5. Skits on how to present your court case the WRONG way, and the RIGHT way.
6. Take home valuable and practical written information to use in Court, including key cases and legal arguments.

Who Should Attend: Anyone involved in a divorce proceeding, anyone under a restraining order now, anyone in a relationship going sour.

Call (617) SAD-DADS to reserve your seat. Just leave your name, phone and email address.

Requested Donation is $5-$10 to cover hotel and refreshment costs.

Sponsored by: www.FatherhoodCoalition.org and www.FathersUnite.org where much more information can be found on these and related divorce issues.

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Victims of false domestic violence reporting detail experiences

An eye opening article appears in The West Virginia Record detailing two studies into the abuse of restraining orders. The article is here, and I'll cite it extensively after the jump in case the article expires from the WVR website.

I'd like to connect it to the same problem in Massachusetts, but the Commonwealth has done it's very best to see that this doesn't happen. You see, a gentleman by the name of Steve Basile conducted a similar study, focusing on orders issued in the Gardner District Court in the year 1997. As Basile and others began to expand the scope of the original study, the Commonwealth and Jane Doe, Inc responded with a successful effort to restrict access to the orders and to the data, ensuring that no such study could ever be completed.

They don't want the truth getting out. Lies are their livelihood, and that hasn't changed under the reign of Martha Coakley.

The WVR article follows:


Victims of false domestic violence reporting detail experiences

10/5/2007 9:00 AM
By Lawrence Smith -Kanawha Bureau

CHARLESTON - The release of a study indicating that most of the petitions for domestic violence protection orders may be used for leverage in a divorce or child custody proceeding comes as cold comfort to those who've experienced it firsthand.

"I was so innocent, and the evidence was so profound, I was able to beat that in court myself," said Teresa Lowe.

Lowe was among the 25 people who gathered along Lee Street in front of the Charleston Town Center Mall Monday, Oct. 1 as part of a rally and press conference held by Men and Women Against Discrimination.

To kick off National Domestic Violence Awareness Month, the Vienna-based children's advocacy group staged the event to release two studies showing inequities in the West Virginia judicial system when it comes to domestic violence.

The first study was an analysis of all petitions for domestic violence protective orders filed in Cabell County Family Court during the 2006 calendar year. According the study, 76 percent of all petitions are dismissed.

Using the Cabell County statistics as a model, the second study showed that the time and resources lost in dealing with those dismissed petitions is $18 million.

Though she now lives in her native Wood County, Lowe, 38, says the analysis of Cabell County holds true in Jackson County, where she used to live with her now ex-husband. In the course of their divorce proceeding, Lowe says he leveled accusations against her of child abuse in an attempt to gain custody of their children.

Though the tactic eventually failed, Lowe says she and her children are still feeling the repercussions of those allegations.

"I've spent six years of my life tied up in court," Lowe said.

Likewise, Chris Saunders says the same holds true in Wayne County which not only neighbors Cabell County, but also shares part of Huntington. According to Saunders, accusations of domestic violence were leveled against him on nine different occasions by his ex-wife, not including additional allegations he molested his daughter, which led to two warrants being issued for his arrest.

Now since exonerated of all the charges leveled against him, Saunders, 37, who now lives in Burlington, Ohio, says the studies MAWAD released has a therapeutic effect for him.

"I just like seeing the information get out," Saunders said. "Nobody should have their children torn away for making false allegations."

Hopefully, Sanders says, the studies will convince lawmakers to pass bills criminalizing false reporting of domestic violence, and creating 50/50 parenting plan.

"What we're talking about is children having a right to both halves of themselves," Saunders said.

Charles Pope says both he and wife were victims of domestic violence. He for not being provided assistance after she battered him one night, and her for being provided too much assistance under the assumption she was the victim.

According to Pope, who lives on Charleston's West Side, his wife become violent one night in January. Unbeknownst to him, Pope says, his wife was taking medication for depression, and had been diagnosed with schizophrenia.

"She just snapped," Pope said.

When police came to their house at her urging, Pope says they were prepared to arrest him. However, with the intervention of his pastor, police placed her in custody.

Instead of being arrested, Pope says, his wife was taken to CAMC for evaluation. Believing she was the victim of domestic violence, the hospital referred her to a local shelter for battered women.

Later, when he attempted to have a mental hygiene warrant served on her by Kanawha County Sheriff's Department, Pope says, people at the shelter told deputies she was not there. However, when he publicly detailed his ordeal at a conference on male victimization in April, his wife was released from the shelter.

"And she really never got the help," Pope said.

Pope says he hopes that police will begin to investigate each domestic violence-related case on its merits instead of arriving on the scene with the assumption the man is the guilty party.

Likewise, he would like to see more services, especially overnight shelter, provided to male victims of domestic violence.

"There's too many politicians hooked up in the foolishness of all this," Pope said. "They don't believe a man can be a victim of domestic violence."

"I'm living proof of it," he added

Charly Young says she knows too well of the man-is-guilty mentality many law enforcement officers have. Though she was not formally part of MAWAD's rally, Young, 29, who lives in downtown Charleston, donned one of their T-shirts and joined them in a march around the Town Center on her way to the transit mall.

About two weeks ago, Young says, she and her fiancee got into a heated argument. The argument centered about coping with financial difficulties they are experiencing.

Needless to say, police were summoned to their apartment. Despite telling police no blows were struck, and she shared part of the blame in creating the disturbance, Young said police encouraged her to press charges against her fiancee.

"The police really didn't care," Young said. "They just wanted to take somebody down."

For Young, the matter was "culture shock." A native of Washington, D.C., Young said she moved to Charleston after leaving an abusive relationship in Baltimore in 2003.

After being nearly choked to death by her former boyfriend, Young says she found it incomprehensible that her word alone could have sent her fiancee to jail.

According to Young, the financial challenges she and her fiancee are having stem from a gunshot wound he suffered three years ago. He is still rehabilitating from that wound, and has not had steady employment since then.

Though acknowledging money won't solve all their problems, Young says if more were done to alleviate poverty, then that would go a long way in curbing domestic violence.

"That is where domestic violence comes from in the poor neighborhoods," Young said.

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GET OFF THE BENCH

I was honored to be invited as a guest last Sunday on the internet radio show "Get Off The Bench!"

The topic was "Abuse of Domestic Violence Laws" and as you can imagine, my experience is a classic case study in that phenomenon.

Links to access the show are below the jump.



Click here to download the show as a podcast. Or, you can go here, find Episode 13 and click on the "Listen" link next to it.

I hope you enjoy it. Thanks to Bob Norton and Lary Holland for inviting me on.

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A Chronology

I haven't posted much about my case for a while because of the ongoing litigation and the tactical advantage of keeping things close to the vest. But enough of the litigation has concluded that I don't mind posting this chronology of the case that I prepared some time ago. So, without further ado, here's what's happened up until March of this year, after the jump.


Commonwealth v. McKay Chronology


Saturday, July 12, 2003 – Midnight After approximately 6 weeks of cohabitation under joint tenancy, and a days old ongoing disagreement, I was sleeping in bed when Cynthia Whelehan woke me and proceeded to scream at me. I quickly cut her off, stated that I would be moving out in the morning, went downstairs and attempted to sleep on the sofa. Whelehan followed me and began insisting that I leave immediately, and that I leave without my daughter Kristin, who was visiting from Georgia. She then proceeded stuffing my belongings into trash bags and upon my suggestion that she stop doing so and go to bed, smacked me in the face repeatedly. At no time did I make physical contact with her other than to grab her hands to stop her from striking me.

Sunday, July 13, 12:55 AM (Time according to police log) Whelehan placed a 911 call and stated that she wanted police assistance because “My boyfriend won’t leave.” Approx. 10 minutes later, Foxborough Police offices McDonald and Foscaldo arrived at our house and McDonald asked what was going on. I immediately informed him that Whelahan had struck me in the face repeatedly. McDonald instructed Whelahan’s daughter Jennifer to go to her room, me to go into the living room and Whelahan to remain in the kitchen/dining area. Foscaldo remained with Whelahan while McDonald followed me into the living room. He questioned me very briefly, including asking me if I’d tried to stop Whelehan from throwing my things out of the house, to which I replied that I had. He then went to the kitchen to confer with Foscaldo and Whelehan. Approximately 5-7 minutes after his arrival, McDonald instructed me to stand up and place my hands behind my back and handcuffed me. At about this time FPD Sgt. Noonan arrived and placed me in the back of his cruiser. I spent about 10 minutes there, parked in front of the house, during which time Noonan went back into the house, coming back out momentarily to ask whether I wanted DSS to pick up my daughter. When he next returned to the car, we proceeded to the Foxborough Police station. According to Noonan’s booking report, the booking process began at 1:23 AM.

7/13/03, 9:00 AM My parents arrived at the police station and posted $1000 bail for my release. Because I was told by the police that I could not return to my house, my parents proceeded there to collect my daughter, my car and some belongings. My father asked Whelahan specifically for my laptop, which she refused to give him.

7/13/03 11:17 AM Smithfield, RI police serve 209A (Abuse Prevention Order) per FPD’s request

Monday, 7/14/03 8:30 AM Arraignment on A&B charge and extension hearing on 209A issued ex-parte less than 24 hours prior. ADA John Healy informs the court that I have “an extensive criminal record in California”, which is simply not true. I objected to the extension of the 209A. Bail was maintained and the 209A was extended for a year.

Friday, 7/18/03, Apprx 10:00 AM I arrived at the FPD station to arrange a time and a police escort to retrieve my belongings from my former home. The dispatcher made telephone contact with Whelahan, who stated that she would be unavailable for 5 or more days. I then proceeded to Revere, MA to socialize with my longtime friend Cynthia Baumann and her family. At approx 1:00 PM, while we were at lunch, I received a phone call from the FPD dispatcher informing me that I could meet an escort to get my things at 4:00 PM that day. I proceeded to the station and Officer Scott Hodson arrived to escort me shortly after 5:00 PM. We proceeded to the house and I began removing my things. Several items were not where they were when I was arrested, and Whelehan claimed to not know where they were. These included my Palm Pilot, my cell phone charger and an office cassette recorder with a very important tape in it. Other items, including the bed I had just purchased and a number of my power tools, Whelehan claimed ownership of. I asked Hodson how this would be resolved and he told me to take it to court. At approximately 5:45, I left the residence. Shortly thereafter, the FPD dispatcher, Richard Parker, made an entry into the log that reads in part “Male subject stated he took everything that was his.” Presumably, Hodson related this to him.

7/18/03 Approx 6:00 PM After leaving the residence in Foxboro, I was on my way back to Smithfield, RI when I attempted to call Cindy Baumann to discuss what had just transpired with Whelahan. I inadvertently speed dialed Cindy Whelahan’s house. I left a message stating “Hi it’s Paul. I just called to amuse you. Hey, can you say Tessa? I went, I got most of my things, the majority of what I really and wanted. I got my laptop so that’s great. She’s decided she’s keeping a whole bunch of stuff and we’ll have to fight about that later. At any rate, just called to say, hey so hey.” Upon my arrival at home, I turned on my laptop and found a vicious email from Whelahan that was clearly intended to intimidate me.

Shortly thereafter, Hodson filed a report mischaracterizing the message I had left, and also filed a violation charge of the 209A order. At trial, he claimed not to remember having been at the house to escort me.

10/3/2003 On the advice of Atty Mason and ADA Mark Fabiano, I went to the FPD station to file an A&B complaint against Whelahan. Officer Azevedo is exteremly resistant to taking my complaint, but does so at my insistence and tells me to “check back in a month”

11/18/2003 Atty Mason writes to the FPD inquiring about a copy of Whelahan’s 911 call, and the status of my complaint against Whelahan

11/20/2003 Small Claims hearing on my suit against Whelahan for personal property. Wrentham Magistrate A. Ross Pini admonishes both parties regarding the penalty for perjury, and then sends us out of the courtroom to attempt a settlement. The clerk then begins to argue Whelahan’s case and expresses to Pini why he shouldn’t rule in my favor. Upon our return, the clerk states “Shhh..they’re back” and the hearing proceeds. Whelahan claims not to know where most of the property is, and claims ownership of other property. With the exception of the bed, which she admits to having, Pini claims that he cannot rule in my favor unless I prove that she has the property, which was impossible for me to do, and not the proper preponderance standard. Whelahan also presented the fraudulent Foxboro police log and a letter from Sgt. Eugene Bosquet further supporting the falsified evidence. (This leaves a question to which the answer is obvious: How did Whelahan know that she would get a document containing false information from the FPD? Why would she have sought it when what actually happened was very different?) Pini notes that he feels Whelehan is lying to him (as she claims that she owns my power tools because I sold them to her for cash), but then gives her a continuance that she didn’t ask for so she could file a counterclaim that he tells her she ought to file.

12/4/2003 Second small claims hearing with Magistrate Joseph Semensi presiding. Whelahan, through her new attorney, files a counterclaim stating that I owed her for 6 months of rent and utilities, that she had paid of this and I had paid none, also claiming that we had moved in together on Jan 1, 2003. However, she does admit that my paycheck was depositied into our joint account which she controlled. Aditionally, in her original 209A complaint, she notes that we had lived together for “7 wks”. Semensi takes the case under advisement and later that day denies both claims by mail, without specific findings.

Early January 2004, FPD Prosecutor Scott Austin contacts Atty Mason and (as it was related to me) explains that Officer Azevedo had “deep sixed” my complaint, but that he would have it scheduled for a Probable Cause hearing. I later learned, through Atyy Mason, that the hearing was to be held on 3/4/2004.

March 4, 2004 I arrived at Wrentham District Court to appear at Whelahan’s Probable Cause hearing. I introduced myself to Officer Austin and he instructed me to wait in the hallway until the case was called. Whelahan arrived with her attorney and we all waited through several other cases. Whelahan’s was the last case called, and when I rose to enter the courtroom, Austin stopped me and told me to sit down and wait. Approximately 15 minutes later, Whelahan and her attorney exited the courtroom. A couple of moments later, I entered and found the courtroom empty. I then went to the Clerk’s office on the first floor and found Austin. I asked him what had just happened, and he first told me that “I was looking for you” (despite the fact that I had been exactly where he’d left me, and that he’d snuck out the back door) and that the charges would not go forward as Whelahan had been found to be acting in self defense. I then went home and wrote a letter to FPD Chief Edward O’Leary asking him to explain why Austin had violated my right to attend the hearing as per the Massachusetts Victim’s Bill of Rights. (MGL 258b)

March 6, 2007 I received a letter from Sgt. Bosquet with FPD Internal Affairs inviting me to come in and file a complaint. On March 10, I wrote a letter in response indicating that Atty Mason insisted that I not meet with them pre-trial, and that I would do so after the trial.

August 3, 2004 Whelahan, having moved to Sandwich, MA, filed a complaint for another 209A order in Barnstable Probate and Family Court. The order was issued ex parte.

August 9, 2004 I sent a letter to Sgt Bosquet requesting that his department file an appeal of the probable cause hearing decision, as my right to attend was violated.

August 11, 2004 Extension hearing on 209A I appeared to oppose extension of the order. Whelahan’s complaint/affidavit included a plethora of ridiculous lies, most of which she repeated in testimony, and which I fully rebutted, including that of my “extensive criminal record” which she claimed to have learned of from the Wrentham DA, and which the Judge Susan Ricci knew full well did not exist, yet the order was extended. I then went directly to the Barnstable DA’s office and to the District Court Clerk, both of whom told me they could do nothing about the perjury Whelahan had just committed.

August 13, 2004 I received a letter from Sgt. Bosquet informing me that I would have to discuss an appeal with the prosecutor, Officer Scott Austin, who violated my right to attend the hearing in the first place.

Also 8/13/04, I ordered a copy of the tape of the 209A hearing from Barnstable P&F. I also sent notice of the tape order to Whelahan, as required by rule. I included a copy of the order form noting the mandatory nature of the notification, and cited the section of the 209A order that allows for such notifications.

August 14, 2004 I notified Whelahan of my intent to order a copy of the Wrentham Small Claims hearing tapes, and also cited the mandatory nature of the notification and the section of the 209A order that allows such communication.

August 16, 2004 Officer Bruce Lawrence of the Sandwich Police files an arrest report and a 209A violation charge for my mandatory, authorized notification. He attempts to secure a warrant and have me extradited, but the request is denied. A Probable Cause hearing on the charge is scheduled for 9/15/04.

August 17, 2004 I replied to Sgt. Bosquet expressing my distress at what appeared to be dishonest behavior emanating from the FPD, and noting my objection at being sent back to the very same officer who clearly violated my rights in order to correct the situation, and also noting the conflict of interest inherent in that situation

August 20, 2004 I receive a call at home from sandwich Officer Lawrence regarding my second notification to Whelahan. He tells me that I have violated the restraining order again, and after approximately 20 minutes of discussing the meaning of the words “Notification of court proceedings is permissible only by mail, or by sheriff or by other authorized officer when required by statute or rule” he informs me that he’ll look into it further.

August 24, 2004 I received a response from Sgt Bosquet suggesting that I have my attorney contact Officer Austin if I did not wish to speak with him myself about appealing the probable cause decision.

August 26, 27 Jury trial held at Wrentham District. I was acquitted on the A&B charge and convicted on the 209A violation after being denied a mistake instruction by Judge Emogene Johnson-Smith. I was sentenced to 1 year of supervised probation and 80 hours of Batterer’s Intervention Program, all of which I completed, paying all associated costs and fees. ( I have an electronic copy of the transcript, if you’d like it.) At the end of the trial, while exiting the courtroom, Whelahan’s friend Gretchen charged at me, screaming “You coward! You liar!” and swinging her right arm, causing Atty Mason to dive between the two of us before she got to me. Mason called out for the bailiff who was standing right across the room, and who did nothing. This also happened in full view of the judge and ADA Healey.

August 27, 2004 I wrote to FPD Chief O’Leary asking that an appeal be filed, and that it would be inappropriate for Officer Austin to prosecute it due to his prior actions and the conflict of interest they created. I also sent 4 sworn statements to Sgt. Bosquet along with a request that he commence investigation of the numerous misdeeds by officers in his department.

August 28, 2004 I sent a letter to Sandwich Police Chief Michael Miller and ask that he correct Officer Lawrence’s error, and see that I be relieved of having to show up for the 9/15/04 Probable Cause hearing. Several days later he calls me and informs me that he’s declining to do so because “there are question that need to be answered.” He refused to expand on what those questions were.

September 1, 2004 I sent a Civil Rights Complaint along with the statements I had sent to the FPD to the Massachusetts Attorney General’s office. I also attempted repeatedly to begin a complaint with the Trooper of the Day, but my calls were never returned.

September 8, 2004 I received a letter from Sgt Bosquet containing a Citizen Complaint Form and a request that I have my statements notarized. I completed the form, had the statements notarized and returned them to Sgt. Bosquet that same day.

September 13, 2004 I received acknowledgement of receipt of proper complaints from Sgt. Bosquet.

September 15, 2004 Probable cause hearing in Barnstable on 209A violation. The Magistrate Pro Tem immediately recognizes the police error and throws out the charge.

September 17, 2004 I received a letter from Sgt. Bosquet explaining that he had spoken to the Clerk of the Wrentham District Court and that because the complaint against Whelahan had been dismissed without prejudice, it could be refilled, and that the FPD would do so, with Sgt Chandler appearing for the prosecution and not Officer Hodson. He further offered some poor excuses for Austin’s actions at the prior hearing.

September 20, 2004 I replied to Sgt Bosquet thanking him for refilling to cause a second Probable cause hearing, and I completely dismantled his excuses on Austin’s behalf.

September 23, 2004 I received a response from Bosquet telling me that he couldn’t address his findings as the investigation was continuing, despite that he had been very eager to do just that in his previous letter.

September 27, 2004 I filed a Notice of Appeal for the Wrentham 209A conviction, and ordered the trial tapes for transcription.

October 14, 2004 Second probable cause hearing for Whelahan, Magistrate A. Ross Pini presiding. After my statement to the FPD was read into the record, and Whelahan’s Attorney offered his defense, Pini asked me why I was appealing the 209A conviction. I cited 2 relevant cases. Pini asked me if I had attended law school and then told me not to cite case law to him since I hadn’t. He explained that since I lived in RI and Whelahan on the Cape, he didn’t see any point in prosecuting her. I asked why exactly the same evidence that I was prosecuted on was insufficient cause to prosecute Whelahan and he told me “That’s not my problem” He then told me I’d have to prove Whelahan was lying, so I offered to play the tape of her performance in Barnstable Probate and Family Court where she claimed she had proof of my non-existent criminal record which the Wrentham DA also had. Pini declined to hear it and ended the hearing.

October 30, 2004 I received a letter from FPD Chief O’Leary stating that “I have found that no Officer of this agency violated any rule or regulation regarding the handling of each incident reported to this agency by you or Ms. Whelahan….You were not treated in any manner that did not follow the normal protocol of this agency…That you were afforded each of your rights allowed by law…” You have to read this thing to believe it. There are a couple of bombshells in it, one of which is the notion that officers relating false information to dispatchers is normal protocol, as is police prosecutors violating victim’s rights. Another is the disclosure that Whelahan has the tape of the message I left in her possession, and that it could be made available in court, despite her testimony that she had not kept it.

November 16, 2004 Ordered small claims hearing tape from Wrentham District.

January 7, 2005 I retained Atty John Siskopoulos to represent me in the 209A appeal. His immediate task was to prod the Wrentham Clerk’s office into assembling the record, and producing the trial tapes, which had not been done. The tapes I had ordered on 9/27/04 were not produced until 3-16-05. The small claims tape I ordered on 11/16/04 was not copied until 4/20/05. The Wrentham Clerk simply refused to process my tape requests until Mr. Siskopoulos insisted strongly and repeatedly. He indicated to me that he had learned through a contact in the central tape reproduction office that they had not received the originals for duplication many weeks after Wrentham had told him they’d been sent.

June 16, 2005. I received a letter from Michael Fleischer, a paralegal in the MA attorney General’s Civil Rights Division. He explained that they could not initiate an investigation on the civil rights side, but that he had forwarded a copy of my complaint to the Criminal Division for investigation. He also suggested that I follow up with the FPD with a request for an internal investigation. That was the last I heard from the AG’s office.

June 17, 2005 I wrote to the Cape and Islands DA Michael O’Keefe detailing Whelahan’s perjury in the Barnstable 209A proceedings and asked for prosecution.

July 19, 2005 I received a call from Trooper Finn of the Cape and Islands State Police. I explained the situation to him, and he requested the relevant materials.

July 20, 2005 I sent Trooper Finn a copy of the 209A hearing audio, a transcript, the order itself, Whelahan’s falsified Complaint and affidavit, and documents relating to the charges she’d gotten Officer Lawrence to file in Sandwich.

August 11, 2005 Annual extension hearing on the Barnstable 209A. Again, I objected, and again I detailed Whelahan’s perjury. I also noted that she had not met the statutory burden for issuance of a 209A and again the order was extended for a year, with Judge Randy Kaplan citing the 209A conviction, although that is not a sufficient legal basis for issuing an order. I also called Trooper Finn to make myself available to sign a complaint. He informed me that this would not be necessary and that he would proceed within two weeks.

December 17, 2005 Follow up letter to Trooper Finn and DA O’Keefe. Noting that I heard nothing from Trooper Finn as promised, I asked whether either of them thought no crime had been committed or whether they simply weren’t going to do anything about it. Both men simply ignored the letter, and I received no response from either.

Months of foot dragging and procedural delay finally resulted in a finding by Emogene Johnson-Smith, the trial judge, that I had indeed requested a mistake instruction (the request was written by Atty Mathers, second chair, and was in the file all along) and that she had denied it. Appellate briefs were filed by both sides and the case was set for oral argument on June 7, 2006.

June 26, 2006 – Appeals Court Order: “ORDER: "...The record in its present form is inadequate to permit us to consider the defendant's claim...The parties and the district court are...directed to supplement the record further...specifically addressing and clarifying the form of the instruction administered to the jury at the defendant's trial, and to cause such further supplemental record to be certified and transmitted to this court by or before July 21, 2006."

After more footdragging, the lower court finally complied with the Appeals Court order on August 9, 2006. A portion of the response noted that the trial judge didn’t give the required instruction because she didn’t think there was any credible evidence to support my theory of defense. Therefore, she took the jury’s job out of their hands by denying them the opportunity to assess credibility, thereby denying me the right to trial by jury on that charge.

August 11, 2006 Annual extension hearing on Barnstable 209A order. Again, I detail the perjury, I detail the legal standard and Whelahan’s failure to meet her statutory burden for issuance of an order. I present the appellate briefs and docket and explain that the Appeals Court may rule at any time on the Wrentham 209A appeal. Judge James V. Menno notes her obvious emotional problems, cites the 209A conviction and extends the order for another year.

September 15, 2006 The Appeals Court reversed the judgement, set aside the verdict and remanded the case to the District Court. The Appeals Court docket is here: http://ma-appellatecourts.org/display_docket.php?dno=2005-P-0506

In early December Atty Siskopoulos informed me that a status hearing had been set in Wrentham District for January 16, 2007.

January 3, 2007 I filed a motion to expunge the Wrentham 209A order from my record, and another to bring the crimes committed in this case to the court’s attention, and asking the court to direct the DA to investigate/prosecute.

January 16, 2007 Status hearing, Wrentham, Warren A. Powers presiding. Both of my motions were continued until March 12. ADA Jen Rowe offered a nolle prosse on the 209A violation, declining to retry me on the charge.

January 19, 2007 I wrote to Norfolk DA William Keating enclosing a copy of my motion to investigate/prosecute, suggesting that he need not wait for the Court to tell him to do what he should be doing anyway. I also requested two documents from his office and asked for a response within 10 days. That letter has been ignored.

March 12, 2007 Hearing on my motions in Wrentham, Warren A. Powers again presiding. My motion to direct the DA to investigate/prosecute was not heard based on the fact that the DA’s filing of the nolle prosse, at the same time this motion was continued, effectively ended the case. My motion to expunge the 209A from my record was continued again to May 17, 2007.

And here we are…..

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Jet.

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The Way it Ought to Be.

Woman gets 3 years for perjury in custody case

HAMILTON — A Hamilton woman was sentenced to three years in prison Wednesday for committing perjury when she provided a sworn false statement on a form that resulted in the removal of her daughter from her father's care.

Stephanie Rodriguez, 28, the mother of seven children, attempted to circumvent the legal system in October when she did not disclose the truth about her criminal record. There was a past case involving her 12-year-old daughter in Butler County Juvenile Court.

Steve Suttle, the girl's father, had a brief relationship with Rodriguez, resulting in the birth of their daughter. Settle took full custody of his daughter when she was seven years old after Rodriguez was found to be neglecting the girl as well as her siblings during a Butler County Juvenile Court proceeding.

The father cared for his daughter until October 2006 when the girl was removed from his custody for two weeks based on false statements she made on a form used to grant a motion for emergency removal of the child.

During a two-day trial in August, defense attorney Jeremy Evans said Rodriguez was directed to Domestic Relations Court after talking with an attorney. He said she was trying to protect her daughter after hearing some information about her treatment in Suttle's custody. He said she was confused by the forms, but did not make false statements.

A jury deliberated just 60 minutes before finding Rodriguez guilty of the third-degree felony on Aug. 3. She faced a one- to five-year prison sentence.

Butler County Common Pleas Judge Michael Sage gave Rodriguez three years in prison, noting she did attempt to manipulate the legal system to get what she could not otherwise.

Assistant Butler County Prosecutor Jason Phillabaum said, "if someone lies under oath, perjury is the result."

Yes, lying under oath is perjury, a felony. Unless you're a female in Massachusetts, where it's still technically a felony, but you're encouraged by "law enforcement" to do it anyway. Dishonorable mention to my favorite felon Cynthia Whelahan of Sandwich, MA, perjury suborning Foxborough Police Officers Scott Austin, Edward McDonald, David Foscaldo and Scott Hodson along with their Chief Edward O'Leary who has given such crimes his full blessing and endorsement. Same goes for Asst. DA John Healy and his similarly perjury approving boss, Norfolk DA William Keating. Collectively and individually, each and every one of you are an utter disgrace.

UPDATE: From the American Coalition for Fathers and Children and RADAR.

Tell Your Representative,

Stop the False Accusations, Stop HRES 590!

"…there is no other court in the land where the penalty for perjury does not exist - you can lie repeatedly and not only NOT be punished for it, but actually be rewarded for it. There is no other court where you are presumed guilty until proven innocent. And for non-custodial parents...especially fathers...going through a divorce...and the never-ending litany of custody issues and all the rest that goes with it...it can feel like eternal damnation."


So says a father of two from New Jersey, who has undergone an ordeal in which he was verbally abused by a judge, physically accosted by police officers, criticized by child welfare officials, shown the door by school administrators, and even turned away by life-long friends.

Situations such as this will be perpetuated by House Resolution 590. It allows for the continued abuse of domestic violence laws, creating a dynamic in which allegations are made solely for the purpose of obtaining an advantage in litigation.


We’re asking you to contact your own Representative and politely ask him or her to say “NO” to HRES 590.

To locate your Representative, go to http://www.house.gov/. At the top, enter your Zip code and look up your Representative’s name, then go to the Representative’s website. Or call the Capitol Switchboard at 1-202-224-3121.

Then leave this message with the Representative's staff: “It’s time to stop the false allegations of domestic violence. Say ‘No’ to HRES 590!”

For further information on House Resolution 590 see http://www.mediaradar.org/docs/RADARanalysis-HRES590.pdf.

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Family Preservation Festival

Here's my friend and colleague Bob Norton speaking yesterday at the Lincoln Memorial regarding family courts in general and in Massachusetts specifically. The video is in 2 parts.

Part 1



Part 2



Raise your hand if you recognize yourself in Bob's narrative.

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If I've gotta wait, you've gotta wait.

I know, Cindy, I know. You want to know what's going on, and being the obsessive that you are, you've just got to keep checking. But if you're not going to bother showing up for the hearings, you're just going to have to keep checking until the time is right for me to divulge the details.

While we're waiting, this might be a good time for you to reflect on why you though it was such a good idea to commit felony after felony after felony. What was the attraction in trying to screw me over that made you so willing to expose yourself? Did you maybe have some friends people who encouraged you to lie, Boots?

Are you having fun yet? Has anyone told you that you ought to be ashamed of yourself? Your social worker, perhaps? Someone should, because it's not nice to hit people, commit perjury or be a control freak. You put a nice, convincing facade up, but at the end of the day, it turns out that you're an abusive and dishonest felon. And no one should have to put up with that, which is why I refused to do it. Boy, did you flip out! But, you did tell me the truth about what you do when you're lying, Shakes. Otherwise, I might have thought you were a total head case. I thought you were going to rattle right apart last time around. ;-) It's no fun being accused of a crime, is it? I don't imagine it helps any when you're guilty as hell.

BTW, nice job with the home ownership. Just brilliant, Cindy.

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A few laughs to pass the time while we muddle through continuances...





From the Demotivational Series at Despair, Inc. Try the Do it Yourself option. It's a fun feature.

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A Conversation With State Senator Barrios

If you can call it that. It's actually a rather one sided communication.

Massachusetts State Senator Jarrett Barrios is the co-author (along with former Lt. Gov. Kerry Healy) of the new law requiring those convicted of 209A violations to be forced to wear a GPS ankle bracelet. He's started a blog of his own, and his first substantive entry trumpets this "achievement" and proposes several news ways to destroy the presumption of innocence.

I read his post, "He Should Leave, Not Her: Restoring Liberty and Equality to Battered Women" on January 24th, and I left the following comment:

Senator Barrios writes:

"Indeed, those who have been on the 'receiving end' of an order of protection might have some concerns about that process, but the process we discuss is the (hopefully) not-so-routine violation of those orders, and how to promote a more succesful compliance with them. The violations and the lack of proof as to their occurence point out the lack of police and court's power to enforce their own orders....and that's where GPS comes in."

Sir, I am a domestic violence victim, though the abuse at the hands of my partner pales in comparison to the abuse upon me at the hands of the Commonwealth. Your legislation would have put a GPS bracelet on me back in August 2004, though I am guilty of absolutely nothing other than being a male. Over two years later, when the Appeals Court reversed my conviction I suppose I would then have been able to take it off. Frankly, I think that 80 hours of Batterer's Intervention Program for a misdialed phone number was insult enough, and as it turns out the Appeals Court agrees with me. Please read the link appended to my name, [which leads here - ed] know that every word I wrote is true and that I have the documentation to prove the vast majority of it (which I will gladly provide on request.) Then, please tell me just a few things.

1. Where did I go wrong? What should I have done that I didn't do? What did I do that I shouldn't have? What would you have done in my situation?

2. Why is it that after spending an enormous amount of time, money and grief on fruitlessly prosecuting me for completely imaginary crimes, I can't seem to get a single human being in the employ of the Commonwealth to take any interest whatsoever in the string of obvious felonies that have been committed against me and against the Court, the supposed embodiment of our commitment to the rule of law?

3. Do you think I should still be the subject of a 209A order to this day? Do you think I should be GPS trackable? Why or why not?

4. What can be done, and what are you willing to do, to see that this or worse doesn't happen to anyone else? If it doesn't happen in Massachusetts today, it will happen tomorrow. My case is not unique.

I'm happy to see that you have this forum, and I'll be even happier if it engenders a substantive, productive discussion of the true and twin problems of both domestic violence and 209A abuse. No one should be subjected to either.

Apparently, my hope for a productive discussion will go unfulfilled as the good senator has clammed up. I'm nearly positive that he's read my comment, and this blog because on January 25, someone from a state.ma.us IP address, coming here from the link I left in his comments spent 25 minutes reading the post I linked to.

That was 8 days ago, yet I haven't had so much as a word in response to my questions, which while pointed, are perfectly valid. It would appear that I can add State Senator Jarrett Barrios to the list of "human being(s) in the employ of the Commonwealth (unwilling) to take any interest whatsoever in the string of obvious felonies that have been committed against me and against the Court, the supposed embodiment of our commitment to the rule of law?"

And yet he'd like to forgo the courts altogether and just let women decide to lock men up:

Pretrial Detention of Partners Assessed to be "Lethal": The lethality assessment can be used to the Commonwealth to assist in determining whether to seek pretrial detention of a defendant as provided for in current law. Lethality assessments provide judges with a vast array of information which might not otherwise be available for their consideration. Evaluation criteria would include, but not be limited to, the alleged batterer's family history, his criminal record, his attitude toward control within an intimate relationship, his attitude toward and previous use of violence in intimate relationships, his history of substance and alcohol abuse, his propensity for violence outside the home, his level of contrition for the attack, his level of denial of the seriousness of the assault, whether children are involved as witnesses or as victims, and other information relevant to the batterer's propensity to commit violence against his intimate partner. The information gathered in the lethality assessment would provide useful guidance in constructing a detention program, as well as coordinating safety measures with the victim's liaison.

I know you might be thinking that this doesn't say women can just decide to have a guy jailed because she feels like it. But if the Commonwealth handles that law the way it does 209A that is exactly what it means. I'm a guy who never laid a finger on Cynthia Whelahan, and yet I still, nearly 4 years later, have a standing judicial finding stating that "there is a substantial likelihood of violence", justifying the deprivation of my Second Amendment rights. Why? Because she, serial perjurer that she is, cries and shakes and begs for the ability to have me arrested at whim, and the People's Republic of Massachusetts cheerfully obliges.

Mass Insanity? You bet it is. "Equality" is a lie.

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Eulogy for my Father

When the duty of eulogizing my father fell to me, I couldn’t have been more honored to do it, and I was mildly amazed at the prospect of actually getting the last word in. But when I sat down to write this, it quickly set in how difficult a task it was to properly summarize his life and to convey how much he meant to so many people in just a few moments. Instead of trying to do that, I hope to tell you who he meant to be and I think that when all is said and done, we can agree that he succeeded, perhaps moreso than he ever realized.

My father was a man with a great sense of duty to his God and to his fellow man. He pursued that duty in a lot of ways, both great and small, but nowhere is it more evident than in his chosen vocation. A very intelligent man, with a strong education and all the options the world had to offer, he chose to spend his days teaching children, and in doing so he took upon himself one of the most difficult jobs in education: teaching remedial reading to some of the most disadvantaged kids in Rhode Island, something you certainly don’t decide to do for the money. Instead, he followed Jesus’ example. He welcomed the children unto him, and gave them one of the most important gifts a child ever gets, something these children were lacking: the power of the written word.

This created something of a conflict for him, as he also saw another duty that he needed to fulfill. This one was to Ginny, the love of his life and to their children. Ken came from humble beginnings, and he was determined to see that his family didn’t struggle as he did growing up, and that we would never want. In order for him to be able to do that, a Providence public school teacher’s salary wasn’t enough, so he spent decades going from school to his second job at the Narragansett Brewery. Now, back in the day they always had a keg tapped in the break room, so this wasn’t an entirely selfless act, though I know he’d have preferred to be home. Shortly after they took the tap out, Dad decided it was time to go into business for himself and Mac’s Tree Service was born. That would take up most of his free time for the next 20 years, and it also provided him a chance to teach his sons what slavery must have been like. Always a giver, that father of mine! All of this paid off as we were able to grow up in a beautiful home that became a touchstone not just for us, but for dozens of relatives, friends and neighbors. Be it pool parties or Christmas parties, the houses that Ken McKay envisioned, designed and built became places of love and laughter and the sites of countless joyful memories.

Before she passed away, my father promised my grandmother that his brother Gene, who was born with a number of challenges, would be taken care of, and my father saw to that flawlessly. It wasn’t enough for him to see that Gene’s physical needs were met, he also saw to it that Gene knew he was loved and to that end Uncle Gene was a frequent fixture in our house with my father driving to Providence to pick him up and again take him home, ensuring that he always knew he was part of a loving family…with plenty of beer.

My mother mentioned something to Dad shortly before he passed that is an ultimate tribute to a life well lived. Not only did they share 48 years of joyful devotion to each other, but they left absolutely nothing undone. Everything they hoped and dreamed of doing together, they did. This includes being blessed with seven grandchildren. Times spent with them were the happiest moments of his life. Ken McKay was a man fulfilled. He didn’t lose his life, he completed it.

I’d like to share a proclamation of faith with you. It was written by Cardinal John Henry Newman in 19^th century Britain, but it could just as well have been written by my father. I found a copy of it among some of his most personal things, and I think that anyone who knows Ken McKay knows that this servant, this child of God, held these words in his heart.

“God has created me to do Him some definite service. He has committed some work to me which He has not committed to another. I have my mission - I may never know it in this life, but I shall be told it in the next. I am a link in a chain, a bond of connection between persons. He has not created me for naught. I shall do good. I shall do His work. I shall be an angel of peace, a preacher of truth in my own place while not intending it - if I do but keep His commandments.

“Therefore I will trust in Him. Whatever, wherever I am. I can never be thrown away. If I am in sickness, my sickness may serve Him; in perplexity, my perplexity may serve Him; if I am in sorrow, my sorrow may serve Him. He does nothing in vain. He knows what He is about. He may take away my friends. He may throw me among strangers. He may make me feel desolate, make my spirits sink, hide my future from me - still He knows what He is about.”

Today, my father knows what He is about. Today, Dad knows the answer to the question that tugs at every one of us. Today, Ken McKay knows why.

I’d like to leave you with something my father wrote. I think that this teacher to so many would be proud to have left us with this important lesson, and as it turns out, he’s getting the last word after all. He said:

“My Christ is a balanced teacher who would suggest that we lighten up, or as the kids say “chill out”. Life is not supposed to be somber. If peace is the tranquility of order, we must have time for laughter after the required tasks are done. Any time I put a smile on my neighbor’s face, I have, if only for a moment, lightened his load as Simon did with the cross. Laughter then, is an act of love.

It is said that every cigarette puts another nail in one’s casket. Perhaps then, it is fair to say that every laugh takes a nail out of that same casket. So maybe smokers should laugh a lot!

If I can’t laugh my way into Heaven, I may well be in serious trouble! Pray for me! And that’s no joke!”

I would be remiss if I didn’t make mention of my father’s 45 year relationship with St. Philip’s. My father loved this Church, and he loved this parish. That was evident to me from as far back as I can remember, as I heard his voice fill the building that this one replaced with prayerful song every Saturday at 5:00 mass. But it was when my daughter Alannah fell ill and we found ourselves confronted with incomprehensible pain and overwhelming fear that we truly came to know how much this parish loved him. I hadn’t been around much for more than twenty years, and my wife and daughter were virtually strangers to this community I had just returned to. The darkness that we found ourselves in was no match for the outpouring of love and support that this parish showed for us. My father called it “the most beautiful display of Christian love that has ever blessed our family” and I know that he appreciated that love as much as my family did. I also know that it was a direct reflection of the love that all of you had for him. We thank God for it, and we will be eternally grateful for it. So, thank you all from the bottom of my heart and my father’s.

Ken McKay leaves us with an enormous hole in our world, but with overflowing hearts. We should all live so faithfully and so well, and leave this Earth so loved.

God bless you, Dad. Enjoy your reward. You’ve earned it.

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In Memoriam: Kenneth John McKay - 12/29/31 - 1/24/07

My teacher, my friend, my father. The man who gave me the blue in my eyes, the steel in my spine and my pesky conscience. He left us at 2:30 Wednesday morning. He died at home, surrounded by his wife and all of his children.

We should all live so well, and leave this Earth so well loved.

Services will be held at 11:00 AM on Saturday, January 27 at St. Philip's Church, Greenville, RI.

It just won't be the same without you, Dad.

More at the Providence Journal

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Case dismissed

Of the two charges against me, I was acquitted of one and now the other has been dropped. The motions I filed have been continued until March 12. Things may be sort of quiet around here until those are dealt with.

Thank you to everyone who has held me up with your love and support throughout this debacle. To those who have been on the other side of the fence, well, that wasn't very bright, now was it? As you sow, so shall you reap.

Stay tuned for more. There's plenty to come.

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Happy New Year!

My wish for 2007 is Truth, Justice and the American Way which I'm told involves equality for everyone in the eyes of the law. I'd really like to see that last part.

The blog has been on a hiatus because I've been reluctant to update it after coming to the realization that Commonwealth v. McKay still isn't quite dead. A status hearing has been scheduled for January 16th at Wrentham District Court. It should be enormously interesting, unless it's a complete waste of time.

Meanwhile, thanks to everyone who has stopped by to read the blog. Happy New Year! See you again soon!

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