UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Mark Emerson Willey *
*
vs. * Nos. C94-1026
* and 95-3188NID
Michael J. Melloy *
District Judge * Ethics Complaint
Iowa Northern District Court *
Eastern Division *
*
---------------------------------------------------------
ETHICS COMPLAINT AND GROUNDS FOR IMPEACHMENT OF FEDERAL JUDGE
MICHAEL J. MELLOY
Judge Michael J. Melloy committed imprision of felony by knowingly and
deliberately allowing perjury in his courtroom.
-----------------------------------------------
CONTENTS
Section A proves that perjury was committed by Cindy Fier in the trial Willey
vs. Schermer, City of Maquoketa and Fier on 8 August 1996.
Section B proves that Melloy was well aware that Fier committed
perjury and indeed based his final ruling in her favor on her perjury.
Section C shall discuss the seriousness of this charge.
-----------------------------------------------------
A. UNDERLYING PERJURY OF DEFENDANT FIER
(1)(a) The issue of the case was whether there was a conspiracy between Fier
and Schermer to shut off cameras at a public school board meeting while the
Plaintiff was addressing the school board and the public on government-owned
television thus denying him the right of free speech by prior restraint.
The testimony revealed an explicit conspiracy. Schermer admitted and was
convicted of shutting off the cameras.
(b) TESTIMONY OF CONSPIRACY BY SCHERMER AND RUBEL Defendant Schermer
under oath on page 26 lines 6-24 said: "Q. When you arrived at the
School Board meeting of May 9, 1994, did you overhear School Board
President Cindy Fier tell Karen Rubel to shut off the camera during the
Plaintiff's speech? Answer 'yes...' Q. "Did you tell President Cindy
Fier that you would take care of shutting off the cameras during the
Plaintiff's speech? Answer, Defendant said he would take care of it
without specifying how he would do so."
Witness Rubel on page 15 lines 1-4 testified she said to Fier, "'but the
meeting would have to go out live,' and she tells me again that it can't
go out, and at that point, Doug Schermer walks in the room, and he says
'I'll take care of it'." So, both Rubel's and Schermer's understanding
supports a finding of conspiracy.
(c) PERJURY BY FIER ON TESTIMONY OF CONSPIRACY Defendant Fier pleaded
and swore and her entire defense had been that she did not give the
order to cut off the Plaintiff's remarks. Fier reversed herself on the
stand.
Fier testified on page 65 lines 4-11, "Q. Did you order Karen Rubel
to shut off the cameras? A. No. Q. Did you in any shape, form, or
fashion suggest to Karen Rubel that she cut off -- that she cut off my
remarks to the School Board of May 9, 1994? A. I said to Karen Rubel
that if names were mentioned, they could not go out over the air." The
answer to interrogatory 36 sworn to by Cindy Fier on the first day of
July 1995 was, "Q. Did you say to Karen Rubel, moments before the School
Board Meeting, that 'Willey's remarks cannot go out over the air' or
words to that effect? A. No."
The main point here is not just the perjury by Fier, but that she
admitted on the stand that she had given an unconstitutional order.
First, Rubel testified on pages 14 and 15 that the order was
unconditional and Rubel is a credible witness. Schermer testified
identically as Rubel on page 110 lines 11-14. This "names" business is a
red-herring and Fier didn't say anything about names - both Schermer and
Rubel swore she said "It can't go out", an unconditional order.
Secondly, the only means that the camera operator Rubel had available to
her to execute the order and prevent the statements from going out over
the air was to shut the cameras off. In other words, the only possible
meaning of the words "Willey's remarks cannot go out" is an order to
shut off the cameras. So Fier's answer to the question on page 65 line 4
and the one to line 7 cannot be reconciled. Fier flipped from one
question to the next, she denied that she had given the order and then
admitted that she gave the order. This is the critical issue of the
case. Her entire defense had been that she had not given the order. Her
answer to the complaint had been that she had not given the order, she
denied in her affidavit and in her interrogatories that she had given
the order and then she got on the stand and immediately after denying
that she gave the order - she admitted it! Fier's not just a perjurer,
she's a brazen perjurer. Fier has now sworn that she gave the order and
here is her testimony about its acknowledgement, page 78 lines 14-17: Q.
All right; this sentence: "Fier said Schermer told her 'he would take
care of it.'" Did you say these words, "he would take care of it"? A.
Yes, I did. Fier thereby has admitted all the facts of the conspiracy -
her order and Schermer's acknowledgment. Schermer testified that after
the school board meeting Defendant Fier had no memorable response when
he told all that he had taken care of it (page 116 line 25 cont.)
(2) MOTIVE - NO NAMES EXCUSE
(a) NO NAMES, ONE OF 3 MUTUALLY EXCLUSIVE
EXCUSES. So, did Defendant Fier have a legitimate excuse for a
plainly unconstitutional order? Defendant Fier presented three
factually inconsistent defenses: a. that she did not give the order
b. that she gave the order but it was about shutting off cameras when
going into closed session c. that she gave the order to Schermer
conditionally: that he was to shut off the cameras if Plaintiff's
remarks became "abusive" (page 45 lines 4-11, a variation of no names
defense), they did not become abusive, therefore she did not know why
Schermer shut off the cameras. If the camera was off for a closed
session then it would be impossible to shut the cameras off again if
Willey's remarks became abusive or if he named names - these are
mutually exclusive excuses that Fier gave the reporter. The 'no
names' excuse was an attempt by Fier to shift the blame for the
decision to Schermer.
(b) FIER CONTRADICTED REPORTER. On page 78
lines 6-10 of the transcript Fier testified as follows: "Q. Did you
tell Sheri Melvold this: 'That Fier had asked Rubel to shut off the
camera during Willey's remarks if they became abusive.' Did you say
that to Sheri Melvold? A. No, I did not use the word 'abusive'." That
is a very lawyerly answer. On its face this answer is an admission
that Fier ordered the cameras off and an example of Fier is denying a
statement by another witness. Melvold swore that Fier made the
statement (page 45). Melvold took notes, was a professional reporter,
printed that statement in a front page contemporaneous newspaper
article for which Fier did not ask for a correction - Fier let the
statements which were an admission of a federal crime (Title 18 @241)
stand characterized as true. On page 45 lines 15-21 Melvold testified
that Fier had said Schermer told her that "he would take care of it."
She testified that the antecedent to "it" in that sentence is "shut
off the camera". But this 'abusive' excuse is a variation of the 'no
names' excuse and neither change the fact that a conditional
unconstitutional order is just as illegal as an unconditional order.
(c) NO NAMES MUMMERY. Fier's testimony at page 80 line 14-15 was: "A. I
said, 'If Mr. Willey mentions names, it cannot go out over the air.'"
Both Rubel and Schermer contradict her that she made it conditional on
names being mentioned: Rubel page 14 line 16 "Cindy came in, and she
made the remark to me that Mark Willey... might make some comments or
remarks they could not have go out over the air..." and Schermer at page
110 line 11: "Cindy repeated that it can't go out. Q. 'It can't go out.'
Is that literally what you hear spoken? A. That's the best I recall."
This puts Fier's excuse that she didn't call a closed session, because I
didn't mention names, in question and leaves us only with the conclusion
that she didn't call a closed session because she didn't intend to.
Secondly, Fier wasn't trying to protect the name of the teacher, Fier
knew the allegations were true - or if you believe her testimony, she
didn't have any idea what I was going to talk about so there would be no
reason for her to try to protect the teacher: page 75 line 18, "However,
Superintendent Drey did not discuss the content of the anonymous letter
with Cindy Fier except to say it pertained to an employee." Fier wanted
to prevent discussion of the allegations: that's what embarrassed her
and the school. That a thief was in daily contact with small children
was an explosive situation - you know parents are going after the
school board if that scandal got out, regardless of whether they have
the teacher's name. Fier's argument is that she didn't care about the
allegations, only the name. The weight is in the allegations, not the
name of the teacher. Anyway, in a small town like ours if allegations
get out, the grapevine will supply the name in hours. Fier's motive was
to prevent the discussion of public affairs. On page 94 line 10, Willey
testified that Fier's original command was not to talk about school
personnel period. It is reasonable to conclude that Fier believed she
could control the naming of names based on her command to me (stip-
ulation no. 3) and her threat to cut me off - she knew that she would
cut me off if I mentioned names and she knew that I knew that it was a
credible threat since she had cut me off a few months previously on Oct.
25th. Mentioning names therefore was not her concern, that was taken
care of. When she did not get a commitment from me not to discuss school
personnel, in spite of her belief that she could prevent me from
mentioning names, Fier went directly to the control room and ordered
Rubel not to broadcast any of my remarks. No excuse can excuse prior
restraint of speech. Excuses are unacceptable - that would be carte
blanche to violate rights. Officials could always say: they thought this
might be said, or wanted to protect that possibility and use those
imaginary excuses to violate real rights with impunity. That is why good
faith is not accepted for Constitutional violations (Trotman).
(3) MOTIVE - CLOSED SESSION EXCUSE The motive behind Fier's actions was
that she knew the allegations that she expected me to make were true and
she didn't want a public discussion of public affairs. First, let's
document her perjury. Fier at Page 70 line 20, "Q. Did you know that
the employee I was going to talk about had a court case pending? A. No,
I did not." Rubel at page 18 lines 3-6: "Q. And those are her exact
word, 'possible court case pending?' A. Court case pending, yes. I would
say that was a quote." Schermer swore on page 110 lines 22-25 "A. At
some point in the conversation, I heard the phrase 'court case pending.'
Q. Whose voice? A. Cindy's." Here again we have Defendant Fier
contradicted by both other witnesses on a very memorable phrase. It
shows that she perjured herself about how much she knew about the
allegations concerning the teacher mentioned in the anonymous letter,
which goes to her motivation to commit conspiracy. The Iowa Code chapter
20.7.3 mandates that only school boards can suspend school teachers.
Fier testified on page 70 line 18, "A. At that time (May 9, 1994) the
Board had not been drawn into it." Iowa Code Chapter 279.17 says that an
appeal has to be made within ten days of a suspension order and a reply
from the school board within five days after that. Schermer testified on
page 125 that Randall had been suspended in April and that a
grievance/appeal had been filed prior to May 9, 1994. Applying the Iowa
Code to the dates sworn to by Schermer: Fier lied, the Board had been
drawn into it in April: they had suspended the teacher. This is another
example of Fier perjury. Chapter 279.18 says that an appeal to District
Court must be filed within 30 days after an arbitration hearing. May 9
fell within the 30 days. Clearly, Fier knew that Randall was in the 30
day period for appeal to court stipulated by law - she knew everything
about that case. And most importantly, she knew that the allegations I
might make in front of the public were true - her motive was to keep
true facts and discussion of public affairs from the public.
(a) JUDGE RULED CONSPIRACY WAS 'MISUNDERSTANDING' On page 132 line 15 the
Judge ruled "...it's my conclusion really amounted to nothing more than a
misunderstanding of what the parties intended to do." Good faith has
never been accepted as a justification for a constitutional violation
and there is no reason to accept it where the violation alleged is
restraint of free speech, one of the most fundamental of all
Constitutional rights" (Trotman v Board of Trustees 635 F2 216 (3rd Cir
1980)). There was no misunderstanding, the testimony of Schermer and
Rubel is clear on this. Schermer flat out swore he was trying to violate
my rights and Rubel remonstrated with both defendants. To come to this
conclusion the Judge had to believe the self-serving, uncollaborated,
and contradicted testimony of Fier that she was intending to call a
closed session. This was one of the three contradictory after-the-fact
excuses Fier had propounded in her third version of the events of May 9,
1994. Since this was the main finding of the judge, let's look at it in
some detail:
(b) LAW OF CLOSED SESSION AND FIER'S FALSE TESTIMONY ON.
Fier alone could not have ordered a closed session - according to Iowa
Code 21.5.1 "A governmental body may hold a closed session only by
affirmative public vote of either two-thirds of the body or all the
members present at the meeting." Also, Iowa Code 21.5.5 says "Nothing in
this section requires a governmental body to hold a closed session to
discuss or act upon any matter." Fier's testimony at page 81 line 16-24
was "Q. Is it your understanding that there are rules and regulations
that govern the school board that require that (closed session)? A. Yes,
there are. Q. Was it also your understanding that one of those matters
might be discussed, and that might be the reason why you would have to
call a closed session? A. Yes." Fier, who was school board president and
testified that she had been a member 11 years at date of trial,
misstated the law. She had to know the fundamental features of that law,
it comes up all the time.
(c) NO CLOSED SESSION. There never was a
closed session on May 9, and Fier never moved for one, although she had
ample opportunity (page 85 line 22). Those actions are evidence that she
didn't intend one and are consistent with the next section.
(d) NO TIME TO MENTION CLOSED SESSION. Defendant Fier testified that she never
mentioned closed session to Schermer or Rubel (page 87 line 21) - the
two people she was ordering to violate the Constitution. Why not? Fier
at page 74 lines 14-15, "I did not mention closed session to Karen
(Rubel). I did not have the opportunity to." And page 88 lines 12-14,
"Q. Why is it that you didn't mention closed session to Mr. Schermer and
Ms. Rubel? A. I did not have the opportunity." Well, we know she was
talking to them before the meeting. We know Fier had ample time - she
chaired the meeting, it couldn't start without her. We know that the six
words "There may be a closed session" take less time than the 11 words
Fier swore she said. It is not reasonable or believable that during a
five minute argument with Rubel that Fier did not have time to say two
words: "closed session." The other explanation, of course, is that Fier
wasn't thinking of a closed session.
(e) UNPRECEDENTED VISIT.
Defendant Fier testified that she had never notified camera operators of
closed sessions before in her prior 9 years on the school board. She also
testified that both Rubel and Schermer were well aware of the rules that
they were to shut off the cameras during a closed session on page 87
lines 1-9. We can conclude from Fier's testimony that if notification
was the reason she went to the control room, it was totally unnecessary
and unprecedented. There was no testimony that cameras ever left their
post, in fact Fier testified to the opposite on page 83 lines 16-18. The
motion and vote for closed session and the standing and milling around
as the room was cleared would be sufficient notice and also Fier could
go check the camera operator at that time.
(f) SEMANTICS, CLOSED SESSION IMPOSSIBLE DURING PUBLIC AUDIENCE.
'Closed' sessions and 'public' audiences are by definition mutually exclusive.
Fier testified that there had never been a closed public audience before on
page 61 line 24-25.
(g) CLOSED SESSION ILLEGAL - NOTICE REQUIREMENT. Closed
session during a public audience would be illegal as Melvold testified
on page 38 under Iowa Code chapter 21.4 Opens Meetings Law that to go
into a closed session about personnel action requires notice - personnel
actions must be agenda items. This notice requirement is also related to
star chamber issues, see section (h) below.
(h) MORE FIER PERJURY: AN ENVELOPE!.
Fier's testimony about having a sealed envelope which
contained the name of an employee requesting a closed session, if his
name were mentioned, is preposterous perjury. As I pointed out on page
75 lines 11-22 it contradicts Fier's answer to interrogatory No 5 where
she claimed the only discussion that Superintendent Drey had with her
was that I had information that "pertained to an employee". This
conversation she testified to in interrogatory is very different and
mutually exclusive of the discussions with Drey of envelopes and
requests for closed sessions that she gave on the stand. On the stand
she invented a second discussion, which she had not included in her
answer to interrogatory No. 5 and therefore she either perjured herself
on the stand or she violated the rules of discovery in her answer to the
interrogatory by not being accurate and complete, tantamount to perjury.
(i) CLOSED SESSION ILLEGAL - TEACHER MUST BE PRESENT. Under Iowa law it
would be illegal for the school board to go into closed session to
discuss performance (IA Code Ch 21.5.1.i) of a teacher without him being
present - that would be a star chamber proceeding which have been
fundamentally illegal since English common law. It is an absolute
requirement that he be present, otherwise it would allow the discussion
and actual decision for the firing of teachers without them being able
to face or answer accusations or determine the cause of their firing -
even if the pro forma vote to fire was held afterwards in open session.
Randall was not present, so there was absolutely no possibility, none,
of a closed session. It would have been illegal.
(j) FIER'S ARGUMENT WITH RUBEL.
It is unreasonable to believe that Fier was telling a
professional like Rubel to shut off the cameras during a closed session
- that was a ground rule well understood. No, this was something
extraordinary, something unusual. Fier testified that she went to the
control room to notify Rubel of a possible closed session and then
testified that she never notified Rubel of the closed session - that
inconsistency certainly undercuts the story. During the five minutes
that Rubel argued and remonstrated with Fier about the wrongness of
cutting somebody off - precious time just before a meeting - Fier at
anytime could have said the magic words "closed session" and Rubel would
have immediately understood, as it was Rubel didn't get it, page 17 line
6-14: "Yeah, I asked him, you know, I was looking for an explanation of
what Cindy was talking about, and I didn't get one. Q. Okay; and when
you said that, 'I don't get it,' does that mean that you didn't
understand the reason -- A. I wanted to know what they were talking
about. Q. You didn't know the reason they wanted to cut me off. A.
Right." Rubel told Fier during this discussion that the cameras could
only be turned off during a closed session, on page 44 lines 21-23:
"Fier said Rubel said that she couldn't do that (cut the cameras) unless
there was a closed session." Fier, in the face of that suggestion,
continued to argue with Rubel for five minutes that Willey's remarks
could not go out. Fier rejected Rubel's suggestion of a closed session
and demanded unconditionally that the cameras be turned off. A closed
session was not acceptable to Fier. If it were Fier's intent to talk to
Rubel about a closed session, as Fier testified - why didn't she do it?
There was no misunderstanding: Fier ordered the cameras off and would
not take no for an answer and would not leave the room until she heard
the magic words "I'll take care of it" in response to her command
"Willey's remarks cannot go out." All three persons present understood
what that order and that response meant: Schermer has testified that he
knew it was an order to cut off my speech and he had explicitly
acknowledged it - although he hadn't figured out exactly how he was
going to do it (page 26 line 6 on). Rubel argued with Schermer that he
could not just cut somebody off (page 16 line 25) - she understood the
order and explicit acknowledgement. Fier was the person in authority
and her last words were "it cannot go out."
(k) CLOSED SESSION, ONE OF 3 MUTUALLY EXCLUSIVE EXCUSES. Defendant Fier
presented three factually inconsistent defenses:
a. that she did not give the order
b. that she gave the order but it was about shutting off cameras when going
into closed session
c. that she gave the order to Schermer conditionally:
that he was to shut off the cameras if Plaintiff's remarks became
"abusive" (page 45 lines 4-11) - and its variation 'the no names excuse'
(Fier page 80 lines 14-15), they did not become abusive or Willey
mentioned the name too late, therefore she did not know why Schermer
shut off the cameras. Blame Schermer. Fier dropped the first excuse
halfway through trial.
(l) LOGICAL CONTRADICTION. The order that Fier
testified that she gave logically contradicts the closed session excuse.
If there were a closed session, the cameras would be off by rule and
therefore could not be turned off again if I mentioned names. (m)
CREDIBILITY OF FIER. Fier was contradicted by Rubel, Melvold, Schermer,
Willey, herself, and the law of Iowa; all on material points. It doesn't
get any worse than that. Fier is a woman incapable of telling the truth.
The answer to interrogatory 36 sworn to by Cindy Fier on the first day
of July 1995 was, "Q. Did you say to Karen Rubel, moments before the
School Board Meeting, that 'Willey's remarks cannot go out over the air'
or words to that effect? A. No." Fier's testimony at page 80 line 14-15
was: "A. I said, 'If Mr. Willey mentions names, it cannot go out over
the air.'" The judge said on page 132-133 that he found Fier credible on
everything.
(n) CLOSED SESSION EXCUSE CONTRADICTED ON STAND. On page 94
line 18 Willey testified that Fier never mentioned closed session to
him. Let me quote from Fier's affidavit, dated 25th January, 1996, which
is part of her Statement of Undisputed facts, docket number 87, from the
first paragraph 11: "...before the May 9, 1994 school meeting began, I
spoke with Karen Rubel, Cable Manager for the City of Maquoketa, in an
effort to express my concern that Mr. Willey might make remarks about a
school district employee and that if he named names it might be
necessary for me to stop him so the board could go into a closed
session." And continuing with the second number 10: "10. Douglas
Schermer entered the room while Karen Rubel and I were talking about the
need to go into closed session if Mr. Willey named names." Fier
testimony on page 87 line 21-25 and 88 line 1 was: Q. "Your testimony
before was that you never mentioned to Karen Rubel anything about a
closed session, and you never mentioned to Mr. Schermer anything about a
closed session. A. I did not." Rubel also denied it. Fier's excuse that
she was thinking of a closed session has no evidence beyond her
testimony, that of a repeated perjurer. She claimed that she had
mentioned closed session that night to a radio person, but in the motion
for new trial, docket no. 119, I proffered that he would testify Fier
lied about that. Most importantly, I also proffered that Tom Messerli of
CBS WHBF-TV Davenport would have testified that Fier gave three
different stories the morning of May 10, 1994 and came up with the
closed session excuse only in the third version. Also, he checked the
story that Fier had called M.J. Dolan of the Iowa School Board
Association and Dolan denied having talked to Fier or knowing Fier and
when confronted with that information on May 12, 1994, Fier changed her
story and claimed that it wasn't M.J. Dolan that she had talked to, but
rather Mike Kane, Maquoketa City Attorney. The proffered testimony would
have directly contradicted all of Fier's testimony on her closed
session excuse.
(o) DEMEANOR EVIDENCE AGAINST FIER. I will quote an
argument made by Judge Melloy from his Opinion and Order of June 18,
1996, page 9 footnote: "According to Fier, in the conversations
preceding the May 9th Board meeting, Fier told Rubel that she might need
to move the meeting into a 'closed' session if Willey spoke. Fier Aff.
Yet, after Schermer stated he would 'take care of it,' Fier apparently
allowed Willey to speak at the meeting without moving into closed
session or even suggesting one. Presumably, if the trier of fact
interpreted Fier's initial conduct as fraught with nervousness and her
conduct subsequent to Schermer's 'I'll take care of it' declaration as
peculiarly calm, a reasonable trier could infer that Fier intended and
knew that Willey's speech would not be broadcast on the cable channel."
-------------------------------------------------------
B. IMPRISION OF FELONY BY MELLOY
1. Fier DIRECTLY CONTRADICTED herself on the main
issue of the case. So by definition Melloy knew she had lied on the
fundamental fact of the case - whether she gave the order or not. She
testified both ways. She denied it until she was broken down on the
stand, and after that she repeatedly admitted it over and over. Judge
Melloy was very well aware that Fier's testimony on the stand completely
contradicted her pleadings, affidavit, interrogatories and early
testimony on the stand and yet he called her "credible" and he ruled in
her favor. She swore she did not give the order to violate my
Constitutional rights and then under pressure she reversed herself and
testified that she did give the order. Of necessity half of her
testimony had to be perjury. Furthermore, since Fier admitted every
element of the crime and testified to an explicit agreement to violate
the Constitution (testified to also by the co-conspirator and an
independent witness), Melloy of necessity had to rule against her.
Instead he ruled in her favor, thus rewarding perjury.
In her pleadings, interrogatories, affidavits and testimony from page 58 up
to transcript page 65 line 10 Fier completely denied that she had given the
order to turn off the cameras when I spoke. At that point in response to
the critical question she rolled her eyes, took a deep breath, and
looked at the ceiling and from transcript page 65 to the end of her
testimony at page 89 she repeatedly admitted giving the order over and
over - she admitted what she had repeatedly explicitly denied. Her whole
defense had been denial. Indeed that is the only defense. The trial
would have been unnecessary if she had made the admissions after page 65
earlier in the proceedings. The trial would have been unnecessary if
Fier had not earlier committed perjury. Since this was the central
material issue with regard to this defendant, Melloy had to be focused
on it - it was his duty. Fier admitted to an explicit conspiracy to
deny the Constitutional rights of the Plaintiff. In the face of her
admissions, Melloy found in her favor! Fier committed perjury so
massively, continuously and transparently that even the village idiot
couldn't miss it. It was so extreme, obvious and bumbling that any
reasonable person would be fully cognizant of it. Fier committed perjury
and Melloy knew it. Melloy knowingly allowed, accepted, condoned,
acquiesced in, concurred with, agreed to, adopted and rewarded perjury -
a felony. He corrupted the course of justice.
2. In his ruling from his own mouth, Melloy demonstrated that he was aware of
the explicit agreement of conspiracy and referred to it: "Basically, the
evidence shows that there was some comments...and the only evidence of
conspiracy are the comments that occurred in the control room of the cable
T.V. studio..." (Tr. 132 lines 9-14)
3. On appeal, Fier's lawyers completely repudiated her testimony after page
65 because they understood that her repeated admissions to explicit conspiracy
would automatically lose for her if taken into account. They were forced to
revert to her earlier perjurious blanket denials.
-------------------------------------------------------
C. SIGNIFICANCE AND CONCLUSION
Perjury strikes at the heart of the judicial system
because without truthful testimony, there is no possibility for justice.
There are people currently in prison for having committed it. The first
Chief Justice of the United States Supreme Court, John Jay, very firmly
stated the case against perjury. On June 25, 1792, in a Charge to the
Grand Jury of the Circuit Court for the District of Vermont, the Chief
Justice said:
"Independent of the abominable Insult which Perjury offers
to the divine Being, there is no Crime more extensively pernicious to
Society. It discolours and poisons the Streams of Justice, and by
substituting Falsehood for Truth, saps the Foundations of personal and
public Rights -- Controversies of various kinds exist at all Times,
and in all Communities. To decide them, Courts of Justice are
instituted -- their Decisions must be regulated by Evidence, and the
greater part of Evidence will always consist of the Testimony of
witnesses. This Testimony is given under those solemn obligations
which an appeal to the God of Truth impose; and if oaths should cease
to be held sacred, our dearest and most valuable Rights would become
insecure."
The Supreme Court says:
"In this constitutional process of securing a witness' testimony, perjury
simply has no place whatever. Perjured testimony is an obvious and
flagrant affront to the basic concepts of judicial proceedings. . . .
Congress has made the giving of false answers a criminal act punishable by
severe penalties; in no other way can criminal conduct be flushed into the
open where the law can deal with it."
United States v. Mandujano, 425
U.S. 564, 576-77 (1976)
* * * *
Perjury exists but what the system cannot stand is a federal judge
condoning and rewarding perjury. It cannot stand a federal judge openly
committing felonies on the bench. That undermines the entire judicial system,
not just the instant case.
As Thomas Hobbes put it so well in 1651:
to give false judgment...is a greater crime; because not only he has
wrong, that falls by such judgments; but all judgments are rendered
useless, and occasion ministered to force, and private revenges.
There are certain statutory crimes that, if committed by public officials,
reflect such lapses of judgment, such disregard for the welfare of the state,
and such lack of respect for the law and the office held that the occupants
may be impeached and removed, for lacking the minimal level of integrity and
judgment sufficient to discharge the responsibilities of
office. Melloy swore to uphold the law and seek the truth. He did
neither. Instead he undermined the integrity of his office, disregarded
his Constitutional duties and oath of office and abused the judicial
process. The laws of the United States were not enforced. Melloy
committed a willful abuse of trust.
Perjury is a serious felony offense against the United States and Melloy's
crime is at least as serious. It is a crime akin to bribery and perjury in
the instant case because it corruptly altered the course of official action.
In a broader sense it undermines the judicial system itself and the rule of
law and therefore is more serious than either bribery or perjury. Melloy has
been appointed to an exalted position of responsibility and trust (and is
paid) and must be held to a higher standard. The condoning and
rewarding of perjury was inconsistent with Melloy's duties and oath. It
disqualifies him from his office or any office of profit under the
Constitution of the United States.
* * * *
Here is a brief history of impeachment of judges:
The House impeached Associate Supreme Court Justice Samuel Chase in 1804.
The articles of impeachment alleged that "unmindful of the solemn duties of
his office, and contrary to the sacred obligation" of his oath, Chase
"did conduct himself in a manner highly arbitrary, oppressive, and unjust,"
citing procedural rulings against the defense (cf issue one of this complaint).
Specific examples of Chase's bias were alleged, and his conduct was
characterized as "an indecent solicitude... for the conviction of the accused,
unbecoming even a public prosecutor but highly disgraceful to the character of
a judge, as it was subversive of justice." (cf Melloy's actions).
His conduct was alleged to be a serious breach of his duty to judge
impartially and to reflect on his competence to continue to exercise the
office.
Judicial favoritism and failure to give impartial consideration to cases
before him were also among the allegations in the impeachment of Judge George
W. English in 1926. The final article charged that his favoritism had created
distrust of the disinterestedness of his official actions and destroyed public
confidence in his court. Some of the allegations against Judges Harold
Louderback (1932) and Halsted Ritter (1936) also involved judicial
favoritism affecting public confidence in the courts.
Melloy is a criminal felon who commits the crime that most peculiarly
disqualifies him from office. He has destroyed public confidence in the
courts. He has not acted with "good behavior". The problem is immediate and
ongoing since character doesn't change. Michael J. Melloy's conduct is
prejudicial to the effective administration of the business of the
courts and therefore he must be impeached, censured, removed and
prosecuted.
Respectfully submitted,
Mark Willey
Maquoketa, Iowa
July 9, 1999
cc. House Judiciary Committee
Senate Judiciary Committee
various members of Congress individually
Department of Justice
JPC
Amnesty International
Human Rights Watch
St. Louis Dispatch
Des Moines Register
Cedar Rapids Gazette
Dubuque Telegraph Herald
Quad City Times
Several legal reform groups including HALT and FLAC
Available on the World Wide Web at
http://wwww.tripod.com/~ww2x/complain.htm and
http://wwww.geocities.com/Pentagon/6315/complain.html
Also widely available on various listservs and internet newsgroups dealing
with law.