Court Update: the Ban Remains

image OK, so many of you have been asking me what happened at my hearing.  Here is a synopsis, based on my recollection.

The hearing was with Judge Josh Wall.  Life is full of ironies.

Issue 1: Filming Court Proceedings

TL;DR: tried to film, they didn’t let me, will be escalating.

I tried: I attempted to film court proceedings as I see to be my 1st Amendment right to ensure accountability of public officials.  I did so in plain view announcing my intention.  Furthermore, I cited Glik v. Cunniffe (see here), which, along with other cases, affirms a citizen’s right to film public officials in public places.

Their response: When I began taking out equipment, one of the officers (I think?) in the court confiscated the equipment (and returned it immediately after the hearing).  Judge Wall also explicitly disallowed filming.  I later noticed that there are signs everywhere that prohibit recording equipment in court.

Comment: in the past, I asked a clerk, Arthur De Guglielmo, about filming.  He cited Superior Court Rule 1.19, which 1) prohibits covert recording and 2) states that a judge must allow filming for it to happen.  Covert recording I can sort-of understand as there may be privileged information, but a judge having the authority to disallow filming is clearly unconstitutional.  Given the fact that, in my case, multiple judges did not do their jobs and violated law and Constitution, recording proceedings becomes an important instrument to ensure accountability.

Next step: to escalate this issue to set a precedent in ensuring that court cannot prohibit filming.

Issue 2: Thomas Fitzpatrick is Acting with a Conflict of Interest

TL;DR: I asked for Fitzpatrick to be removed from the case; Judge overruled my objection.

Comment: In one of my last communications, I advised Thomas Fitzpatrick from Davis Malm & D’Agostine:

Dear Mr. Fitzpatrick,

You seem to continue to attempt to represent MyJoVE Corp., a MA closely-held corporation, in spite of the clear, unambiguous, and continued conflict of interest. 

You and your firm have represented the interests of Mr. Moshe Pritsker, my partner and an equal shareholder in our closely-held corporation.  Mr. Pritsker was dismissed.  Therefore, your firm can no longer be involved in matters concerning MyJoVE Corporation in context of a conflict with another partner in our corporation.

Please be advised that you are in violation of Supreme Judicial Court Rule 3:07 and therefore risk consequences in accordance with Supreme Judicial Court Rule 4:01.

I hereby demand that you cease your attempts to represent MyJoVE Corp. immediately or be ready to face the consequences of your misconduct.

Respectfully yours,

Nikita V. Bernstein

Their Response: when I objected to Fitzpatrick representing the company citing reasons as above, the Judge overruled without stating a reason.

Next step: given the very clear conflict of interest, I intend to maintain my position.  Fitzpatrick does not and cannot represent the corporation.  If he continues to insist, depending on how loud this gets, I am pretty sure he is risking his license.

Issue 3: Correcting Other Judge’s Actions

TL;DR: Other judges transgressed.  Judge Wall either 1) didn’t care or 2) didn’t believe and was not open to reviewing.

Comment: As I mentioned before, the abuse by the court culminated in a ban on my filing pleadings, which has now lasted over 2 years and 3 months.  And this is on top of other transgressions.  When I made the appeal to Judge Wall, his response was that he is not going to review what was done by other judges. My impression is that he didn’t see what other judges did as a problem, which makes him complicit.

So, while he briefly considered it, he did not lift the ban or reverse (or review) other decisions.  He did, however, allow me to leave a copy of my motion (without allowing me to file it).  As I understand, law dictates that judges must intervene when their peers violate constitutional law. Judge Wall did not, which means that he, along with Judge Hogan, have become complicit in the ongoing color-of-law violation.

General Observations

Everyone was very… nice.  Judge Wall engaged in lively banter attempting to manage a pro se litigant with the primary theme being “come come now, be nice, let’s get the trial going, let’s not worry about the little things”.  I almost felt like I am imposing.  Like I should apologize for having inconvenienced the Court with being there without a law degree.  Like my concerns are minutiae.

And then I think to the video of Navalny making his “final word” and remember that I have been gagged for over 2 years; that the court has effectively enforced a freeze-out.

And then I am reminded that this is not a minor issue and that what is happening, however inconvenient, is unacceptable.  Under the veneer of congeniality, there are hard facts, all of which piece together a disturbing picture of a frat house Court not doing its job: violating the Constitution, rules of civil procedure, law, and its ethical obligations – with zero accountability.


So what happened was: nothing changed.  And this was the second best outcome – second only to a judge taking major corrective action.  Continued oppression increases the probability of intervention in the future where there will be real consequences and real change. This will continue to be interesting.

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Filed under JoVE, Justice

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