Brian King, Esq. K-FIRM LLP 40 Wall St., 28th Fl. Phone: 202-251-2121 New York, NY 10005 Fax: 718-313-0050 March 24, 2014 Naomi F. Goldstein Disciplinary Committee Supreme Court, App. Div. First Judicial Department 61 Broadway New York, NY 10006 Re: Sua Sponte Investigation, Docket N:2014:0398 Dear Ms. Goldstein: Thank you for your letter of March 4, 2014, asking me to respond to the Committees

investigation into matters relating to U.S. District Judge Brian M. Cogans February 24, 2014,

order, in which he denied my application for admission pro hac vice in the District Court for the

Eastern District of New York. My response is provided below.1

Owing to certain information I learned while participating in the underlying case, some of

which is revealed below, and owing to the defamatory nature of Judge Cogans allegations

against me, I will be taking remedial measures to ensure that this matter is completely rectified.

That said, and with the understanding that the scope of your investigation is limited, I

respectfully request that you provide me, within 20 days of this letter, or by April 14, 2014, the

Committees findings. I request that deadline because my remedial measures will involve

engaging other investigative and regulatory bodies as well as the public-at-large in a dialogue

about the serious implications of what I have disclosed to you in this response. As such, I extend

the Committee the courtesy of completing its investigation before I begin that remedial process.

If the Committee requires or wants additional information from me in connection with

any aspect of its investigation, I would ask that you make any such request by April 3, 2014.

/s/Brian King Brian King, Esq.

1 Because my response contains numerous references to a voluminous record, I will provide you electronic rather than hard copies of the transcripts and the other documents I have referenced. Please advise as to what email address you would like me to send those items.

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RESPONSE TO ALLEGATIONS MADE BY DISTRICT JUDGE BRIAN M. COGAN

I. Judge Cogans assertion that I made misrepresentations to the jury is false and finds no support in the record. A. Allegations regarding reference in closing arguments to petitions not in evidence.

Judge Cogan stated in his order that I made misrepresentations to the jury about a

petition for removal of the children, which, according to Judge Cogan, I mistakenly believed

had been excluded from evidence. (Cogan Order at 12-13). These allegations are false. To

clarify, the central claim in the case is that the defendant filed numerous verified petitions with

the New York Family Court, all of which contained deliberately false allegations regarding abuse

and neglect, resulting in the unlawful removal of the Southerland children from their fathers

custody. Thus, the 18 verified petitions the defendant filed with the family court in June 1997

were clearly relevant to that claim. Nonetheless, for reasons Judge Cogan has yet to clarify, the

jury was not permitted to see even one of those false petitions. (Tr. 6-6-13, 639:6-11: MR.

KING: This is Brian King speaking. One more time with respect to your Honor's ruling, we

cannot show Mr. Woo's petitions and put them into evidence. I just want to make sure that my

objection is preserved. THE COURT: Of course, Mr. King. MR. KING: Thank you, your

Honor.). The plaintiffs were only permitted to draw testimony regarding those petitions.

Consequently, during the course of the trial, the jurors heard over 100 references to a petition

or petitions, but they never saw any of the petitions relating to the claims at bar. As the

foregoing shows, Judge Cogans allegations against me are completely contradicted by the

transcripts, which explicitly show that no petitions were admitted into evidence, and which prove

that my statement to the jury was not a misrepresentation as Judge Cogan alleges.

Importantly, the document that Judge Cogan refers to in his allegation against me was not

a petition. By contrast, that document was the defendants June 6, 1997, sworn application for

an order permitting him to enter the familys residence to search for an allegedly missing child.

(Woo Entry Application). That application was not at all relevant to the plaintiffs Fourteenth

Amendment claims, but was directly relevant to the plaintiffs Fourth Amendment claim of

unlawful search without probable cause. Therefore, notwithstanding Judge Cogans allegations,

the jury did not see any of the false petitions the defendant filed, and, likewise, I did not make

any misrepresentations to the jurors when I said that I had been prevented from showing any

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petitions to them. As outlined throughout this response, the record of the proceedings reveals

Judge Cogans order to be demonstrably false as to every allegation he makes against me.

B. Allegations regarding reference to an email about documents having been destroyed or lost.

Next, Judge Cogan also asserts that I made misrepresentations to the jury regarding an

email that a defense attorney sent prior to trial about missing documents. However, I did not

make any misrepresentations to the jury. The incident arose when a defense attorney made a

false statement to the jury and I corrected it. More specifically, the defense attorney at issue sent

an email less than one week before trial saying that his office had lost transcripts and other

documents, including a supposed removal confirmation order. (Bowe Email). However, in

closing arguments, the same attorney stated the following to the jury: I would submit to you that

however those original transcripts went missing, perhaps thats how the order that Judge Turbow

issued in writing on June 13th went missing. We dont know. (Tr. 6-10-13, 761:14-17).

Keeping in mind the pre-trial email, the defense attorneys last two sentences - indicating

that he did not know what happened to those documents, or whether all the documents had met

with the same fate - were both false. Taken within the context of a closing argument, the defense

attorneys intention could have only been to place a question in the jurors minds as to whether

Mr. Southerland might have caused the documents to be unavailable. And if there is any doubt

as to whose feet Mr. Bowe was trying to lay blame, it is common sense that he did not mention it

in his closing argument to discredit his own client. Surely, it was an unskillful, deceitful, and

discreditable argument on the part of that attorney, which I thought the jury would ultimately

reject. Nonetheless, once he made that misrepresentation, he created an obligation for someone

else to correct the statement. That fact that Judge Cogan now accuses me of committing

misconduct by living up to that obligation an obligation to which he was, incidentally, also

bound - yields a critical insight into the spurious nature of all of his allegations against me.

Moving forward, because the defense attorneys accusation was indirect, I characterized

it similarly and then clarified for the jury that the attorney did in fact know why the documents

were missing: I thought it was interesting that there was some question of whether Mr.

Southerland had somehow removed some of the transcripts. The inference was hey the

transcripts would hurt him, so that's why they're not over there. Mr. Bowe came in here and told

you that. He didnt tell you that he sent an e-mail two weeks ago saying that they had them but

they lost them on 9/11. (Tr. 6-10-13, 798:18-24). In affirmation of the deceit, the defense

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attorney instantly sprung up from his table and admitted right away that the email existed:

Objection! Mischaracterizing the email and facts not in evidence. (Tr. 6-10-13, 799:1-2).

Judge Cogan immediately overruled Mr. Bowes objection and admonished him to stop making

such objections. (Tr. 6-10-13, 799:3-4).

Now, in an apparent reversal of sentiment, Judge Cogan asserts that my statement to the

jury about the email was a misrepresentation. He does this despite the fact that the attorney

confirmed the existence of the email by his own self-defeating outburst only moments after I

mentioned the email. Further, I provided Judge Cogan a copy of the email prior to the trial, thus

he knows now, as he did during trial, that the defense attorney lied about it to the jury, and that I

told the jury the truth. Indeed, it was my responsibility as a trial attorney, as well as Judge

Cogans responsibility as the presiding judge, to correct something that we all knew was false.

It is quite telling that Judge Cogan uses this and other similar incidents to support his

allegations that I made misrepresentations to the jury. As the record reveals, I was the only

attorney involved, judge or non-judge, who made absolutely no misrepresentations to the jurors,

which was the promise I made to them in my opening statement. It should come as no surprise

that, by the time the trial was coming to a close, the jurors trusted me and distrusted Judge Cogan

and NYCs attorneys. We had smart jurors who ultimately discovered, by observing Judge

Cogan, that he was not a credible, consistent, trustworthy, or reliable presiding judge. By

contrast, the jury knew I was credible, and detected the deceit of the defense attorneys, which is

why the jury found in favor of the plaintiffs and rejected the outcome that Judge Cogan openly

seemed to prefer. Indeed, one might fairly question the intelligence of jurors who fail to see

through a defense claim that the most critical documents were destroyed by terrorists on 9-11.

As outlined, Judge Cogans allegations that I made misrepresentations to the jury are false.

For good measure, I should also address Judge Cogans ambiguous statement that no

such email was in the record. As already stated, I provided a copy of the email to Judge Cogan

before trial. So, I can only assume that he is referring to whether the email had been put into

evidence. The email had not, in fact, been put into evidence before the close of evidence. To

clarify, Mr. Southerland did not testify as to what form of communication the defense attorney

used to advise that the alleged removal order was destroyed on 9-11. (Tr. 6-5-13, 555:3-5)

(Counsel for the City stated they couldn't find it and they said that during 9-11, a plane hit that

particular page and got destroyed.). Although Mr. Southerland did not mention that he learned

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this information via email, the email was the only communication he had received about

terrorists destroying documents on September 11, 2001.

So, it would seem that Judge Cogans assertion is actually that I pretended not to

remember whether Mr. Southerland used the word email in his testimony. It is an allegation

that discredits Judge Cogan because it assumes I have an infallible memory. Admittedly, I have

a prodigious memory, which Judge Cogan seems to mistake for a photographic memory.

Notwithstanding what might seem to be a meaningless distinction to Judge Cogan, he is surely

mistaken if he thinks I can rote-memorize nearly a thousand pages of transcript testimony and

can therefore, without reviewing the transcripts, remember which particular words were used in

one particular sentence of witness testimony. Thus, I was honest with Judge Cogan when I told

him that I did not recall whether Mr. Southerland used the word email in his testimony.

My inability to recall that testimony should not have engendered any inquiry about

misconduct, for an attorney is not required -- under pro hac vice rules, nor bar ethics rules, nor

any tangible rule in the universe -- to memorize testimony and recall it upon cue. Tellingly,

Judge Cogan was presiding over the same trial and apparently did not remember himself whether

the word email was used. Hence, he asked me. He then asked the defense attorney to check the

transcript. After about 15 seconds, the defense attorney stated that Mr. Southerland did not use

the word email. So, Judge Cogan did not remember off-hand, and the defense attorney did not

remember off-hand and had to look it up. In a paradoxical turn, Judge Cogan now maintains that

I did remember off-hand, but pretended not to, and am thus dishonest, and, consequently,

unqualified to practice in the Eastern District of New York.

The way Judge Cogans accusation proceeds makes no sense. The construction goes:

Because the judge could not recall the testimony, and because opposing counsel also could not

recall the testimony, Mr. King must have recalled the testimony, and Mr. King is therefore

unprofessional and unqualified to practice in the Eastern District of New York. It is like saying,

We think your memory is infallible, or at least way better than ours, so youre not qualified to

practice here. To be sure, the irony of this allegation is only eclipsed by its absurdity. It is

amazing that a federal judge would even sign his name to an order, a public document, that

makes such a scurrilous allegation, and that makes it so illogically. The reader will likely notice

that a distinct pattern is emerging regarding the allegations and conclusions Judge Cogan set

forth in his order denying me pro hac vice admission.

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C. Allegations regarding references to the procedural history of the case.

Judge Cogan alleges that I committed misconduct by informing the jury that no court,

including the U.S. Supreme Court, had concluded that the defendant found emergency

circumstances necessary for removing the Southerland children from their home in June 1997.

I made that point, which is a fact, in my opening statement (Tr. 6-3-13, 33:21-34:1); and I made

the same factual point in my closing argument. (Tr. 6-10-13, 788:22-24). However, because the

words U.S. Supreme Court had not been mentioned at trial, a defense attorney found it

objectionable that I used those words in my closing argument. In light of that objection, Judge

Cogan now alleges that during my closing argument, despite the absence and irrelevance to

the jury of the procedural history of the litigation, I told the jury about the procedural history

of the litigation. As explained below, the trial record contradicts Judge Cogans accusations,

revealing yet again that his allegations against me are fabrications.

First, Judge Cogan seems to have forgotten that the procedural history of the case was not

only relevant, it was one of the most pivotal issues before the jury regarding the defendants

liability. Second, as the record reveals, because the procedural history was critical, the parties

put on considerable evidence of the history of the litigation, which meant that the evidence was

neither absent nor irrelevant to the jury as Judge Cogan alleges. Third, Judge Cogan seems

to have overlooked that he made a misstatement about the procedural history in the presence of

the jury, which made correction not only appropriate, but an obligation.

A little bit of context is necessary here. One of the plaintiffs Fourteenth Amendment

claims is that the defendant, a New York City social worker named Timothy Woo, removed the

Southerland children from their home and from the custody of their father without a court order.

Importantly, a social worker may only remove children from a home without a court order if he

or she finds emergency circumstances. Emergency circumstances are conditions in the home

that would constitute an imminent risk to the childrens safety during the time it takes the social

worker to seek a judicial order of removal. However, if a social worker decides to remove

children on the basis of emergency circumstances, he or she is then required to petition the

family court for an order affirming that such circumstances actually existed at the time of the

removal. Thus, a critical question in this case was whether the defendant obtained an order

finding that those circumstances existed. Plaintiffs maintain that Woo was unable to convince a

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court that emergency circumstances existed, and that he is thus liable for that Fourteenth

Amendment violation, among other civil rights violations.

Because liability turns on whether a jury believes Woos assertion that emergency

circumstances were actually found, NYCs attorneys made considerable efforts during trial to

characterize alleged conditions at the home as dangerous and urgent. As a fallback position,

the defense attempted to convince the jury that courts had agreed with Woos assessments,

although the defense could not produce a written opinion from any court making that finding.

Indeed, Mr. Southerland testified that the defense indicated prior to trial that the alleged

removal order was destroyed by terrorists. (Tr. 6-5-13, 555:3-5). Plaintiffs, on the other hand,

denied: (1) that the conditions alleged existed at all, and (2) even if all of the alleged conditions

existed, that they would not have prompted any court to issue an order affirming the removal. In

sum, if a jury believes both that the conditions existed and that an order was issued affirming the

same, NYC wins. On the other hand, if a jury believes that no court issued an order affirming

the existence of the alleged emergency circumstances, NYC loses. Accordingly, both sides put

on evidence of the history of court proceedings in support of the conclusion they hoped the jury

would reach. This automatically made the procedural history of the case relevant to the jury and

made the introduction of such evidence inevitable.

Illustratively, in an act of desperation, the defense asked Judge Cogan to admit into

evidence the complaint Mr. Southerland filed to begin this case in 1999. As that strategy goes,

the fact that Mr. Southerland had accused a judge in that complaint of issuing an unlawful order

was offered as proof that the judge had in fact issued such an order. Judge Cogan permitted that

exhibit to be admitted over my objection that it was irrelevant. Indeed, it is axiomatic in federal

courts that pleadings are not evidence, but are merely accusations, which are not assumed as true

in the absence of proof. The whole purpose of a trial is to determine which, if any, of the

allegations in the complaint are true. So, logically, a complaint allegation cannot also serve as

proof of what it alleges. In this case, Mr. Southerland filed his complaint 14 years ago, and the

allegations against that judge were later dismissed. So, again, the complaint itself could not

constitute proof that the judge committed the acts Mr. Southerland leveled against him. As a

matter of law, Judge Cogan made a bad call, ruling that Mr. Southerlands initial, but later

dismissed, pleadings were relevant. But, as explained below, by making that incorrect ruling,

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Judge Cogan opened the door to the rest of the pleadings in this case, and the parties walked

right through that door.

As stated, once Judge Cogan deemed the initial pleadings in the case relevant, his ruling

rendered all the subsequent pleadings in the case relevant to the question of whether a removal

order had been entered - especially to the extent that those subsequent pleadings corroborated

other proof in the case. So, my objection to relevance notwithstanding, Judge Cogan opened the

door to the entire procedural history of the case, including other pleadings, and not excluding the

petition to the U.S. Supreme Court, which handily refutes any proof that a removal order was

issued. To his chagrin, Judge Cogans evidentiary ruling was not just bad in a legal sense, but in

a practical sense for NYC. Certainly, if it is relevant that Mr. Southerland alleged in a pleading

14 years before trial that a judge issued an unlawful order, it is manifestly relevant that NYC

pleaded to the U.S. Supreme Court one year before trial that it should not face liability simply

because no such order was issued. One does not need a law degree to understand that simple

syllogism its common sense.

Veritably, Judge Cogan would be hard-pressed even to reconcile his admission of Mr.

Southerlands pleadings with his earlier decision to exclude all of the defendants false petitions.

By the same token, it would require a recherch analysis for Judge Cogan to explain how the

most dated and fallible pleading in the procedural history, Mr. Southerlands initial complaint,

could somehow be more relevant than amended and other subsequent pleadings that incorporate

more reliable facts discovered over the course of the litigation. Keeping in mind that one of the

plaintiffs claims at trial was that no affirmation order was entered, it follows that Mr.

Southerlands mistaken belief in 1999 cannot now stand as proof that such an order was entered.

It only supports the inference, as Mr. Southerland testified, that he had been misled about the

reason his children were not permitted to return home.

But all of the foregoing deductions seem to have evaded Judge Cogans perception as he

allowed the initial complaint to be admitted into evidence over my objection that it was not

relevant. And he clearly missed the deduction that once he had opened that door, the rest of the

pleadings were necessarily relevant to the same question. Notwithstanding the fact that he

missed all of this during trial, the takeaway from the foregoing exegesis is that Judge Cogans

own ruling on the complaints admissibility introduced into the case the discrete issue of

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procedural history as reflected in the pleadings, and otherwise made the entire procedural

history, as reflected in the pleadings, relevant to the jury.

Moreover, Judge Cogan committed yet another error of judgment that brought the

procedural history into stark relief. To wit, while conducting a cross-examination of Mr.

Southerland, a defense attorney asked Judge Cogan to move a state appellate decision into

evidence. (Tr. 6-6-13, 640:8-10). Rather than seek a side-bar, the defense attorney and the

attorney for the Southerland children argued openly about whether the appellate decision was

relevant. According to the childrens attorney, the document was irrelevant. According to the

defense attorney, it was relevant because, as the theory goes, it was the equivalent of an order

affirming the existence of emergency circumstances. Instead of calling the attorneys over to a

side-bar conference, a customary indeed necessary precaution against tainting the jury, Judge

Cogan joined the open discussion and offered an improper opinion as to significance of other

evidence in the case, stating, aloud: But nothing upsets the family court decision. (Tr. 6-6-13,

640:22-23). Judge Cogans outburst in front of the jury was not only completely unacceptable, it

was also completely untrue.

First of all, Judge Cogan should not be commenting on the significance or quality of any

evidence in front of a jury. The attorneys are present to argue the case, and a judge is not

supposed to decide the facts and pronounce his own conclusions in front of the jury. It totally

defeats the purpose of having a jury trial if the judge can blurt out his view of the facts and his

legal conclusions in front of the jury. The jurys role is to determine the facts and apply the law

to those facts. A judge should neither, as Judge Cogan did here, usurp the jurys role nor the

attorneys role. Anything otherwise begs the question of why we have juries and attorneys in the

first place.

Second, Judge Cogans statement was untrue for several reasons. Primarily, the two-

page order in question purported to be a 1998 order from a family court judge (1998 Order). It

mentions nothing about emergency circumstances nor any of the conditions Woo asserted were

extant at the time of the removal. Thus, the 1998 order could not constitute evidence of the

existence of a 1997 order affirming emergency circumstances. It was for that reason that the

defense attorneys attempted to prove the existence of the affirmation order via other means,

including putting Mr. Southerlands pleadings into evidence, and including the offer of evidence

that led to Judge Cogans inappropriate outburst. Nonetheless, Judge Cogan proclaimed, in the

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presence of the jury, that the 1998 order stood for that crucial proposition. Of course, he did not

make that statement explicitly, but he made the statement nothing upsets the 1998 order in

response to the defense attorneys assertion that a subsequent order should be admitted into

evidence to prove that an affirmation order was entered. In essence, Judge Cogan had

communicated to the jury that the 1998 order was proof that Woo had obtained an order

affirming the existence of emergency circumstances. As I have stated once or twice above, it

was unacceptable for Judge Cogan to comment that way. But the fact that what he said was

untrue compounded the problem and mandated a correction.

The primary reason Judge Cogans statement was untrue is because subsequent orders

and rulings do, in fact, upset the 1998 order. To explain, this case has been up on appeal to the

Second Circuit Court of Appeals twice over the course of the last 15 years. During those

appeals, the Second Circuit has ruled twice that the burden is on NYC to prove that an

affirmation order was ever entered. On both appeals, the Second Circuit was aware, via

extensive briefing, that family court proceedings in 1998 resulted in the Southerland children

being placed in foster care. Indeed, as outlined many paragraphs above, the plaintiffs maintain

as a Fourteenth Amendment claim that the family court reached false conclusions about Mr.

Southerland because the defendant filed false petitions to mislead the family court. The Second

Circuit stated explicitly in its most recent decision that NYC may be held liable for constitutional

violations if it cannot prove to a jury that Woo obtained an order affirming the existence of

emergency circumstances. Stated differently, despite its awareness of the 1998 family court

decision, the Second Circuit found that NYC failed, nonetheless, to produce evidence that any

order had affirmed the existence of emergency circumstances. That being the case, the 1998

order from the family court had already been deemed on appeal to be insufficient for showing the

existence of emergency circumstances. Thus, when Judge Cogan stated that nothing upsets the

1998 order, he failed to account for the fact that the order had already been considered and

rejected by a superior court. Judge Cogans expressed view that nothing upsets the order can be

read as a rejection of the Second Circuits findings, which apparently upsets Judge Cogans

personal stake in the case whatever that may be, whether emotional, social, political, financial,

or all of the above.

Further to the same point, after NYC lost the second appeal, it filed a petition with the

U.S. Supreme Court, asking that it be shielded from liability by virtue of the 1998 findings of the

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family court. The Supreme Court rejected that petition, which left undisturbed the Second

Circuits rejection of those findings as evidence of emergency circumstances. So, Judge Cogans

statement that nothing upsets the 1998 order was untrue because the Second Circuit and the

U.S. Supreme Court rejected it as proof that emergency circumstances existed at the time of the

1997 removal.

I should also point out that the 1998 order was upset in another less obvious way. If

the reader takes a look at the order, he or she will notice that it contains two different font colors.

It looks a lot like it could be a fabrication, being that the text of court orders usually tends to be

in one font color. The fact that the text in this order lacks uniformity should and did raise a red

flag with the plaintiffs. Fortunately, the Federal Rules of Evidence do not leave much room for

guesswork on such a specious looking document. That is, the rules of evidence require that a

document purporting to be an order from a state court is not admissible unless certified by the

clerk of the state court that issued it. See Fed. R. of Evid. 902(4). Yet, for reasons he has yet to

disclose, Judge Cogan permitted the document to be admitted without the required certification.

Thus, the document was not even properly in evidence. I raised the objection before trial and at

trial, but Judge Cogan ignored it both times. Interestingly, another judge in the courthouse raised

an objection to the documents admissibility on the same grounds, but Judge Cogan did not heed

Rule 902 or that other judges concerns. Thus, the 1998 order was upset by virtue of the fact that

it was inadmissible under the rules and therefore was never properly before the jury.2

The question here of whether I committed misconduct is similar in nature to the question

of whether I remembered the word email. Specifically, when I mentioned the U.S. Supreme

Court in my closing, the only objection was Objection, your honor. At that point, Judge Cogan

gave the admonition that the jury was only to consider evidence in the case. Because the

objecting defense attorney, who had a transcript of the entire trial, had not stated in his objection

that the basis was facts not in evidence, I thought that Judge Cogan was giving that instruction

out of an abundance of caution just in case there had not been any mention of the U.S.

Supreme Court. Thus, I did not take Judge Cogans admonishment to the jury as an indication

that something I said was not in evidence. Indeed, Judge Cogan reminded the defense twice 2 The record reflects that, after my objections to the documents admissibility were completely ignored, I used the document to show that the 1998 family court proceedings against Mr. Southerland were entirely tainted by fraud. Indeed, once I discovered that Judge Cogan was inexorably committed to assisting NYCs defense, I resorted to using every piece of evidence as an example of why the 1998 case and everything preceding it was fraudulent.

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during my argument that the jury must ultimately decide, irrespective of what attorneys argue

and object to, what evidence was put before them at trial (Tr. 6-10-13, 795:5-9: The jury will

have to figure out what's being accurately stated and what's not. ); (Tr. 6-10-13, 799:3-4: The

jury's got to figure this out don't keep making those objections.). Because neither the general

objection nor Judge Cogans standard admonishment to the jury indicated whether the Supreme

Court had been mentioned, I tried to figure out in the middle of my argument whether it had been

mentioned or not. I did recall that there had been considerable testimony about appeals, and

even supporting documents submitted about appeals. And I wondered whether the jury might

have become confused about the testimony about appeals and Judge Cogans improper open

proclamation. I also considered the fact that Mr. Southerlands initial pleading had been entered,

and that NYCs Supreme Court petition constituted a subsequent pleading in this case. But I still

was unsure whether it had been mentioned, so I split the baby. I assumed that some legal rule

might have prevented me from bringing up the Supreme Court petition in closing argument,

although I was not sure of that, and I had been given no indication of whether Judge Cogan

thought so. Because I, like Judge Cogan, was unsure of whether it had been mentioned, I

advised the jurors, as I had in my opening, that no rules of admissibility would relieve them of

their overarching duty to find the truth a proposition that drew no objection on any of the

multiple occasions I said it during my opening and closing argument. (Tr. 6-10-13, 799:5-10:

My obligation is to bring the truth out. Objections notwithstanding, the truth is what you have

to find. Yeah, if we can't find the truth, this is just a silly game like Judge Ambrosio played isnt

it? Youre a jury. Your responsibility like his is to find the truth. And so what's in your

hands?). Because I restated this general proposition while arguing to the jury about the

procedural history of the case, Judge Cogan now accuses me of misconduct.

When all is said and done, the question is whether my telling the jury that they have an

obligation to find the truth was misconduct. As much as I know about rules and trial advocacy, I

think this raises an interesting question of whether an attorney can properly admonish jurors to

prioritize their obligation to find the truth over any other obligation. But because I have given

that same admonition in every trial without any lawyer ever objecting or any judge caviling, I

suspect that no lawyer or judge, besides perhaps Judge Cogan, would argue that the truth-finding

function of a jury must be subordinated to legal rulings that urge jurors to forget what they

already know. Judge Cogan accuses me of misconduct for reconciling the truth-finding function

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with his admonishment to the jury about which truths to neglect. If he is right about it

constituting misconduct, then society can draw an interesting inference as to what the federal

court system has become and what Judge Cogan represents within that system. I wonder

whether he would stand by this misconduct allegation if asked again about the underlying

incident. In sum, this particular allegation is false if for no other reason than - if it were true, no

judge or attorney, besides perhaps Judge Cogan himself, would endorse the underlying rationale

and resulting implications for the federal court system. In any event, and notwithstanding what

judges or attorneys may think about our federal court system, the record reflects that I made no

misrepresentations to the jury.

II. Judge Cogans assertion that I attended a conference without Mr. Southerlands authorization is false and finds no support in the record.

Judge Cogan alleges that I attended a conference without authorization from Mr.

Southerland. More specifically, in his order denying me pro hac vice admission, Judge Cogan

states that I was not authorized to attend a conference. He based it upon the fact that Mr.

Southerland telephoned the Court directly after the conference and said that, as of a week prior, I

was no longer representing him in the case. This is not proof of an unauthorized appearance. As

Judge Cogan well knows, an attorney cannot just skip a conference after his client has indicated

he might proceed pro se. The attorney must attend court with the client, make an application to

withdraw, and the Court must then permit the client to be heard before deciding whether to grant

the attorneys application. Mr. Southerland did not attend the conference in question, thus I was

in no position to make an application to withdraw. Further, even if Mr. Southerland had truly

terminated my services, it would have constituted misconduct for me to leave the case without

permission from Judge Cogan. The foregoing indicates that my attendance at the conference was

a professional obligation, not an infraction. Therefore, Judge Cogans assertion that I attended

without authorization is yet another one of his false allegations in support of illusory misconduct.

Judge Cogan also asserts that I committed misconduct by not telling the Court that Mr.

Southerland was considering proceeding pro se, and by not responding to an order asking for

information about Mr. Southerlands decision. However, Mr. Southerland did not authorize me

to discuss with Judge Cogan or anyone else his rationale for decisions in the case or to

disclose any of our privileged conversations. I have a professional obligation to keep Mr.

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Southerlands confidences and not to reveal privileged information. As such, Judge Cogans

assertion that I somehow committed misconduct for not speaking or writing about Mr.

Southerlands rationale is an additional unfounded allegation of misconduct that does not even

make sense.

III. Judge Cogans assertion that I was late to conferences is false and finds no support in the record. As the record, read in its entirety, reflects, from the time I entered my appearance in April

2013, until the time the date Judge Cogan entered his order denying my pro hac vice application

in February 2014, I was late to court a total of one time. To repeat, I was late once during the

entire 10-month period I was involved with this case. And to clarify, contrary to Judge Cogans

assertion that I was late to conferences, the one incident of me being late was actually a

stormy morning during the actual trial. Stated yet again, I arrived at the courthouse 13 minutes

late one time during the trial and was never late on any other occasion. Nonetheless, Judge

Cogan now asserts that I had difficulty arriving on time for conferences or trial. (Cogan Order

at 6). As explained below, Judge Cogans allegation is demonstrably false in light of the fact

that I was late one time during the course of the entire proceedings.

Judge Cogans reference to the transcript is a natural place to start this discussion because

it actually reveals that Judge Cogan is prone to make misrepresentations of fact in open court as

well as in his written orders. As the colloquy he cited shows, I was late to trial on the morning of

June 4th, 2013. This prompted Judge Cogan to make several false statements on the record. To

wit, Judge Cogan stated in open court that I missed [a] pretrial conference for being late, and

that I wrote a letter assuring [Judge Cogan] that [I] will not be late again. (Tr. 6-4-13, 123:3-

11). Neither of those two asserted facts are true. The letter I wrote to Judge Cogan, which I

have attached here, indicated that because two of the Southerland children had expressed their

wish to terminate their attorney, and because those two children asked me how, where, and when

they could do so, I advised them of the procedure for attorney withdrawals outlined in Section II

above, and I advised them to meet me at the courthouse, so that the proceedings would not

commence without them. I also explained in the letter that the attorney they were seeking to

terminate had given them the wrong time for the appearance. I further advised in the letter that

when I suspected the two children at issue would likely be more than 15-minutes late, I went to

15

the courtroom to sign-in, expecting them to arrive soon thereafter, and ensuring that the Court

was aware that they intended to be present for the proceedings. I then explained in the letter that

I was surprised to learn that the conference began and ended without me being present nor the

parties seeking to terminate their attorney. As I pointed out in the letter, I had never known any

judge to proceed in the absence of the parties, especially where the parties were necessary for the

Court to conduct the business before it. I also expressed my surprise that Judge Cogan

proceeded in my absence, essentially denying me a professional courtesy that every other judge I

have encountered affords attorneys. However, I apologized for assuming that Judge Cogan

affords such courtesies, and ultimately acknowledged that his willingness to start without the

parties or attorneys sets him apart from other judges.

I am not sure that Judge Cogan realized that, in my letter, I was not commending him on

his firmness, but was instead trying to remind him, gently, that when he commences the

proceedings before all the necessary parties arrive, he actually defeats the purpose of the

proceedings. I had not met Judge Cogan yet, so I assumed a soft admonishment, veiled as an

apology, would remind him in a courteous way of what every other judge already clearly

understands: the proceedings cannot began on the minute if the parties intend to appear and are

merely running late. And I certainly did not mean to signal to Judge Cogan that the due process

he is required to afford the parties can be achieved by ignoring the fact that the parties were

given the wrong time by their attorney especially within the context of proceedings for

determining whether there were grounds for the parties to terminate that attorney. Indeed, as I

outlined in Section II, the procedure for terminating an attorney requires the moving partys

presence. By the same token, the attorney cannot argue the application in the absence of the

client without risking an unauthorized disclosure of confidential information. Only the client is

authorized to decide which facts, known only between both the attorney and the client, are to be

shared in open court regarding a motion to terminate. Despite my having given Judge Cogan the

benefit of the doubt in deciphering my uncontroversial, nay obvious, message, he still fails to

acknowledge it. I would later discover that Judge Cogans prompt commencement of the

proceedings, followed by his abrupt termination of the same, reflected his overall unprofessional,

if not scandalous, approach to his duties as a federal judge.

Turning back to the colloquy on the one day I was late, Judge Cogans first statement on

the record - that I had been previously late to a conference - was certainly untrue. I insisted on

16

making a record about that because it seemed to me that Judge Cogan had failed to heed my

admonishment about how he handled the conference, and that he wanted the record to attribute

his unprofessional handling of the matter somehow to me. (Tr. 6-4-13, 123:3-19). As the record

further reflects, Judge Cogan would not let me make a complete record. Of course, it is hard to

make a record when the judge repeatedly cuts one off (although it is admittedly not as difficult as

making a record when the proceedings are begun in the absence of the relevant parties).

Nonetheless, I made the record to my satisfaction when I corrected Judge Cogans

mischaracterization of my letter. To be sure, I never in fact assured Judge Cogan I would not

be late again. A careful reading of my letter reveals that I merely acknowledged, gently, that

he was the type of judge, however idiosyncratic, who would, without even considering the

implications of doing so, start on the minute, whether or not all the attorneys are present.

Thus, when I stated I can never assure anyone I wont be late, I had corrected the record as to

the contents of my letter, and as to a matter of logical certainty and dialectical tautology that

every other judge already knows.

To be sure, I am not in control of every factor that can affect my own punctuality.

Anyone who claims otherwise is either lying or nave. Judge Cogan, still evincing, or perhaps

feigning, idiosyncrasy - if not obtuseness - proved that he was incapable of accepting the obvious

implications of beginning too early when he offered, twice consecutively, the non sequitur:

Thats quite a remarkable statement. Thats quite a remarkable statement. Although Judge

Cogan found it remarkable that I would not promise future promptness, he did not excoriate

other attorneys who were late. Instead, he just waited for the attorney to arrive before beginning.

(6-12-13, 911:10-17: MS. SILVERBERG: Good morning, Your Honor. Janice Casey

Silverberg on behalf of the defendant, Woo. My colleague had an emergency just now and had to

go to the car. THE COURT: That's why you're here? (Mr. Bowe entered the courtroom.)3 MR.

BOWE: Pardon me, Your Honor. I was dealing with someone using my American Express card

in Sweden.).

Similarly, although Judge Cogan found my statement about punctuality to be remarkable,

he later failed to meet his own deadline for providing jury instructions, demonstrating that my 3 It should be noted that transcripts do not show the amount of time that passes between statements. Several minutes actually passed before Mr. Bowe entered the courtroom. There were other instances of NYC attorneys arriving late, but because Judge Cogan did not open the record until they had arrived, the record understates the number of times NYC attorneys arrived late.

17

remarkable statement applies equally to him. More specifically, Judge Cogan did not provide the

jury instructions until more than 20 hours after he indicated he would provide them. In fact,

Judge Cogan was so tardy in putting together the jury instructions that he had to postpone the

charging conference for a full 24 hours. Compare (Tr. 6-6-13, 643:5-9: THE COURT: So I'll

see you all at 3:00 o'clock. Let's make it 3:30. And if you will stop by chambers at 2:30, we'll

give you copies of the charge then. In fact, make it a quarter to three, just so I'm sure we have

enough time to go over it ourselves.); with (6-6-13, 2:30pm Email from chambers: We will not

be holding the charging conference today at 3:30pm. The proposed jury instructions and

verdict sheet will be emailed to you later today.). Whereas I was 13 minutes late to court once,

it took Judge Cogan 20 additional hours to do what he represented he could do in two hours,

resulting in a full-day adjournment of the case. The only thing that is truly remarkable is that,

judging from the fact that he cites to this particular incident in his order, Judge Cogan still fails

to realize that there is nothing at all remarkable about the statement: I can never assure anyone

that I wont be late.

In fairness, though, I acknowledge that Judge Cogans response to me coming in late

once disproved something in my June 3, 2013, letter to him. That is, Judge Cogan did not, in

fact, start on the minute despite my absence. Whether that was because I admonished him

against doing so, or, conversely, because he and every other judge already knows that would be

inappropriate, I will never know. One thing is for sure, if a judge should not start in the absence

of an attorney, then a judge definitely should not start in the absence of the parties. So, an

inquiry exists as to whether Judge Cogans commencement of the pre-trial conference in the

absence of the parties was based upon a belief that it was appropriate to do so, or whether he

proceeded in the absence of the parties knowing it was inappropriate to do so. The reader, like I,

must continue to speculate about that.

For the sake of completeness, I should note that the motion to terminate the attorney was

granted as to one of the two parties seeking that termination. This was over the terminated

attorneys objection to the motion to terminate. In an ironic twist, Judge Cogan, having not

heard from the parties on the question, instructed the terminated attorney to deliver the message

that the successful party had won the termination motion, and as relief he could find an attorney

ready to try the case within three days, or, more happily (and impossibly), proceed to trial pro se;

that is he could represent himself in complex civil rights litigation involving claims that have

18

been argued all the way up the U.S. Supreme Court. This should shed additional light on the

inappropriateness of proceeding on the motion to terminate in the absence of the parties, and

perhaps on the discussion in Section II as to why I did not speak for Mr. Southerland during the

conference at which Judge Cogan alleges I appeared without authorization. Without speculating

as to Judge Cogans rationale, there is one sure thing that can be deduced from this discussion:

notwithstanding Judge Cogans allegation that I repeatedly failed to appear at conferences or

trial, I was late one time during the entire ten months I was involved with the proceedings.

IV. Judge Cogans assertion that I made misrepresentations to the Court is false and finds no support in the record.

Judge Cogan stated in his order that I made deliberate misrepresentations to the Court. In

support of that accusation, Cogan wrote that I misrepresented whether the parties had stipulated

to the admissibility of an exhibit, namely C-4. However, I did not make any deliberate

misrepresentation about the stipulation. I was misled as to what was in the stipulation and Judge

Cogan was directly involved in misleading me. The incident, as outlined in detail below, reveals

that NYCs attorneys and the Court engaged in fraud regarding the exhibit.

As the reader will notice, the exhibit begins with the same bates number 0001 as

exhibits that appeared on proposed stipulations by both NYC and the Southerland children.

(NYC Proposed Stipulation & ONeill Proposed Stipulation). Likewise, the exhibit fits the

description of Timothy Woo progress reports and ACS case record progress notes as

described in the two stipulations. And, third-wise, the exhibit falls within the date range

identified in NYCs stipulated exhibit list. However, as the attached email and letter shows, for

reasons the Court has never stated, the Court did not require NYC to turn over to me any of their

bates-stamped documents or proposed exhibits prior to trial. Thus, I was only able to view the

exhibit beginning 0001 for the first time at trial.

Of course, because C-4 had Timothy Woos signature at the end, and because his

signature did not appear on any of the other pages of the exhibit, it was a fair inference that this

was part of the stipulated Woo progress reports. This inference was corroborated by the date

on the signature page, which fell well within the six-month date range identified on the face of

NYCs exhibit, and which fell within two weeks of the dates recorded on the first page of notes.

However, because NYC had not provided me a copy of their exhibit, I had no idea that (or how

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under the rules of evidence) the page with Timothy Woos signed name had somehow been

deemed inadmissible. No trial attorney would guess that a signature page of an exhibit would be

inadmissible because it is typically the signature page that provides the primary foundation of

admissibility. Nonetheless, as explained below, there was something very remarkable about this

exhibit that convinced the Court, in advance of trial, that the signature page should not be shown

to the jury.

As one would expect a trial lawyer to do, when Woo testified at trial that he had other

handwritten notes that were not in evidence, I asked Judge Cogan to publish the rest of Woos

notes as already stipulated to. Indeed, the notes I sought to publish were not only within the date

range provided in NYCs stipulated exhibit list, the notes carried Timothy Woos purported

signature. At a side bar Judge Cogan first revealed that the signature page had been excluded.

As the transcript reveals, Judge Cogan did not say during that side-bar why the signature page

had been excluded. Fairly assuming the exhibits authenticity, after the side-bar I naturally

sought to admit the exhibit on the basis of the signature itself, which is as strong a basis of

foundation as one can have when the signatory witness is on the stand. In a sudden twist, Woo

testified that someone other than he had signed his name to it, which is the only testimony he

could have given that would make the signature page and the rest of the notes inadmissible. As

explained below, the bait-and-switch nature of the incident reveals that NYC and the Court

engaged in fraud in order to ensure the jury only received doctored portions of Woos notes that

were favorable to NYCs defense theory.

To be sure, if what appeared to be Woos signature on C-4 was not authentic, then the

Court had no legitimate basis in pre-trial conferences for deeming the first two pages of the notes

admissible. When the Court first directed the parties to seek a stipulation regarding the exhibit in

question, nearly a month before trial, I inquired in an email to NYC as to the legal basis for the

authenticity of the progress notes. Yet, as already explained, the Court did not require NYC to

provide me or, even show me, the proposed exhibit before deeming certain unknown portions of

it admissible. The fact is, the first two pages of the progress notes contained everything NYC

wanted to prove via progress notes; and the rest of the progress notes were harmful to NYCs

case. As such, I stated explicitly in a May 6, 2013, email to NYC that I would not agree to

admissibility with missing notes or date gaps. In response to that email, NYC decided that

instead of providing me a copy of the notes prior to the conferences, it would simply turn the

20

proposed exhibits over to the Court directly, thereby closing me out of in-court discussions about

admissibility. Further, the Court facilitated NYCs concealment of the documents by imposing a

new rule that required all exhibits to be hand-delivered to the Court. (King Email). As such,

NYC hand-delivered all of its exhibits to the Court, whereby the Court thereafter made rulings

without ever permitting me any opportunity to look at any of those exhibits. The result was that

I did not learn until I tried to authenticate Woos progress notes at trial that there was some

problem that required him to say someone else had signed his name.

The foregoing exposition of the record refutes Judge Cogans accusation that I made a

deliberate misrepresentation to the Court. Quite the contrary, I was the target and ultimate

victim of fraudulent behavior that the Court was complicit in carrying out. I did not make a

misrepresentation to anyone at any time, but I was deceived multiple times in order to facilitate

the admission of tainted evidence that favored NYCs defense strategy.

V. Judge Cogans assertion that I demonstrated a lack of familiarity with federal practice and procedure is false and finds no support in the record.

The record will reveal that Judge Cogans assertion that I am in any way unfamiliar with

federal practice and procedure is a complete falsehood. He cites as his sole example a side-bar

conversation about how Rule 50 of the Federal Rules of Civil Procedure applies to the parties in

the case. As I outline in paragraphs below, the discussion I had with Judge Cogan reflects my

understanding of the implications of Rule 50 when witnesses are called out of order. Judge

Cogan conveniently omits that my instincts about how the rule would affect the proceedings

turned out to be quite prescient. Judge Cogan, by providing only a portion of the conversation,

has misrepresented the nature of the conversation in order to give color to yet another scurrilous

allegation that the full record contradicts entirely.

Before I launch into the full-blown analysis of how Rule 50 works and how it affected

this case, I should note that I have had extensive training in federal practice and procedure. As

an undergraduate, I fell under the tutelage of Dr. Richard Pacelle, whose specialty is federal

practice and procedure. I then came under the instruction of Arthur Miller, arguably the most

renowned professor of federal procedure in the world. Upon graduation, I was employed and

trained by a number of world-class federal practitioners at a very large international law firm

headquartered in Washington D.C.. Next, I served as a judicial law clerk in a federal court,

21

which required me to apply the Federal Rules of Civil Procedure with razor-sharp precision

while consulting and assisting federal judges in their decision making processes and thereafter

reducing those decisions to written orders and opinions that cited directly to the Federal Rules

and to case law interpreting them. Finally, I spent more than a year practicing in federal courts

while employed with the most prestigious law firm in Saint Louis, Missouri. During this trial,

because I seemed to be the only attorney, judge or no judge, familiar with (or even interested in)

applicable rules in the case, I brought much of my training and experience to bear in the

proceedings before Judge Cogan. The record reflects that I not only know the rules, but that,

compared to anyone else in the case, including Judge Cogan himself, I have mastered them.

To provide background, Rule 50 permits a party to make a motion for a judgment as a

matter of law. The way it works is that a party, typically the plaintiff, will put on his or her case

first, calling all of his or her witnesses and putting in all of his or her documents, before resting

his or her case. Upon the first party resting, Rule 50 confers any other party the right to move for

a judgment as a matter of law. The motion must be granted if the moving party can show that

the non-moving party, after having been fully heard, failed to adduce evidence sufficient for a

jury to find in his or her favor.

However, the application of Rule 50 can be precluded when, by a stipulation between all

the parties, the first party to put on its case is permitted to keep his or her case open until some

other time during the trial. A typically agreed upon term within such a stipulation is that the

party being permitted to keep its case open must limit the scope of any returning witnesss

testimony to the matters explored before the witness completed its initial testimony. It is in fact

very rare that parties agree to proceed in this way because it entails uncertainty, creates moral

hazards, and fosters gamesmanship to the disadvantage of the party waiving the Rule 50 motion

in advance. Before moving on I will note that no such stipulation was entered in this case.4 As

explained in detail below, although NYC had called all of its witnesses, Judge Cogan preempted

the normal application of Rule 50 against NYC by representing, on NYCs behalf, that NYC had

not called all of its witnesses.

4 It should also be noted that a partys right to call rebuttal witnesses does not frustrate the application of Rule 50. This is because calling a rebuttal witness will not be availing or even possible if the first party fails in his or her case-in-chief to adduce sufficient evidence to permit a favorable jury verdict. Thus, if a party has called all of his or her witnesses, any other party may move for dismissal under Rule 50.

22

In what hardly seems an inadvertence, the portion of the transcript Judge Cogan cites to

in his order is meticulously snipped to give the reader a sense that he schooled me as to the

application of Rule 50. In particular, the last two statements Judge Cogan cites - with him

explaining the rule, and then with me saying okay right afterwards - would naturally give an

unsuspicious reader the impression that the discussion ended, and that it had ended with me

being corrected about how Rule 50 operates. But a review of the transcript (Tr. 6-5-13, 431:22-

432:10) reveals that the discussion did not end with me saying okay, but instead continued

further until I was satisfied that I had enriched the record as to the court-assisted means by which

NYC escaped the Rule 50 analysis:

THE COURT: That refers to, Mr. King, the adverse party, the party opposing the

motion.

MR. KING: Okay.

THE COURT: Otherwise, everyone could call their first witness and say they

want judgment as a matter of law.

MR. KING: If you could read it again, because I thought Mr. Woo, I thought his

case was already wrapped up in Mr. O'Neill.

THE COURT: They have more they want to do. They have not been fully heard.

MR. KING: I didn't know.

THE COURT: So defendant's motion is reserved until after both plaintiffs present

their case. Let's proceed with Mr. King's case.

Although a careless reader might infer from the colloquy that when I finally said I didnt

know, I might have been referring to how the rule operates as to parties that have been fully

heard. A proficient reader would notice, however, that I said it in response to Judge Cogans

representation on behalf of NYC that it had not been fully heard. Again, according to Judge

Cogan, although NYC had called all of its witnesses already, and absent any stipulation between

the parties, they nonetheless had more to do. Thus, the Southerland childrens otherwise

standard Rule 50 motion had been preempted by the fact that Judge Cogan believed Woo had

more witnesses to call. Proficient readers will also notice that NYCs attorneys made no

representations about witnesses or anything at all. Judge Cogan spoke for NYC. That is, absent

23

any indication one way or another by Woos attorneys, Judge Cogan was so sure there were

more witnesses that he announced it as a logical syllogism: They have more to do. They have

not been fully heard.

Judge Cogan represented with strong certitude that NYC had more to do. And for a

person so certain that there was more to do, he seemed a bit reticent about the specific things he

had in mind. Certainly, if there was more to do, then there should have been a discussion first as

to whether a stipulation could be reached between all the parties regarding Rule 50. Apparently

Judge Cogan had learned about the more to do in an off-the-record conversation to which I had

not been invited, and of which I had not been advised. And Judge Cogan had apparently waived

my clients right to agree or disagree as to his right to make a Rule 50 motion. Perhaps Judge

Cogan really wondered whether I was unaware of what a stipulation is, as he quipped in his

recent order denying my pro hac vice application; or perhaps he doubted whether I truly

understood the operation of Rule 50 or any of the other federal rules. 5 Whatever his true

thoughts, he was mistaken if he thought that I had not instantly detected that his use of the

transparent more to do contraption was designed to preempt the Rule 50 analysis. This was

Judge Cogans way of ensuring the case went to the jury irrespective of whether NYC had

made a sufficient legal case for doing so.

I walked away from that side-bar satisfied that I had underscored what I knew to be a

strategic maneuver to preempt any Rule 50 motion other than NYCs motion. I could only

wonder whether Mr. ONeill realized that NYC would never call another witness in the case. As

explained below, he Mr. ONeill at least appeared to be taken by surprise when he learned later

that NYC would not call another witness in its case.

As indicated in the transcript, I opened my case directly after the Rule 50 discussion.

Because I had been given the opportunity to cross-examine both of NYCs witnesses, and 5 To his defense, Judge Cogan might have fairly inferred that I was unaware of Rule 50s implications. He may have drawn that inference from the fact that I filed a Rule 50 motion in writing before trial instead of a Rule 56 summary judgment motion. I did that, despite the fact that the Rule 56 standard was more favorable to my client, because the local rules prevent the filing of a summary judgment motion absent the presiding judges prior authorization. With the local rules in mind, and because I had already suspected that Judge Cogan had a personal stake in the case, I filed a Rule 50 motion to make the record reflect that both standards had been met, thus making any jury trial in this case an unnecessary and extravagantly wasteful session of moot court. In light of his transparent maneuver at the side-bar regarding Rule 50, there is little doubt that Judge Cogan had already read my Rule 50 motion and had perceived it to be indisputably meritorious. His perception of the motions merit cannot be reconciled with his asserted view that I do not understand Rule 50; but, then again, no perceptible amount of what Judge Cogan has said about me is reconcilable with any other information in the record apart, of course, from his belief that I have a good memory.

24

because I examined several of my other witnesses in Mr. ONeills case, I ultimately called two

witnesses in my case-in-chief, Mr. Southerland and Ciara Manning. Once my witnesses were

done testifying, I closed my case. Right after I closed my case, NYC put one of their witnesses

back on the stand, where he answered three questions corroborating the evidence already in the

case. As the following colloquy shows (6-6-13, Tr. 638:1-639:5), Mr. ONeill, still seemingly

(or feigningly) of the belief that NYC had more to do, protested when he discovered that NYC

did not in fact call any other witnesses. Not surprisingly, Judge Cogan concluded that the law

permitted a misrepresentation as to whether another witness would testify, and thus it was

plaintiffs hard luck that such a misrepresentation had worked to the plaintiffs disadvantage:

MR. O'NEILL: We only learned five minutes ago that Mr. Balan was not

testifying. I'd like to ask Mr. Woo about that.

THE COURT: No, you may not.

THE COURT AND MR. KING: [unrelated discussion].

MR. O'NEILL: If I just may, Balan --

THE COURT: Argue it to the jury.

MR. O'NEILL: But Balan is under Woo's control. He was listed as a witness.

THE COURT: They have no obligation to call him.

MR. O'NEILL: But the fact that he didn't --

THE COURT: Argue it.

MR. O'NEILL: But the jury needs to know that he was going to come in.

THE COURT: No, that they don't need to know. They will be instructed in fact to

the contrary, that a party has no obligation to produce all evidence in support

of their position. That's a standard instruction. If you want to argue that they

should have, nothing stops you. But you're not going to go against this witness.

Don't argue with me on this.

Measuring by his final sentence in that side-bar exchange, it would appear that Judge

Cogan believed that the plaintiffs relief for having been deceived into waiving both the

opportunity to make a Rule 50 motion, and also the opportunity to question a pivotal witness, is

to argue to a jury that NYC should have brought the witness in. It seems that Judge Cogan is

25

saying that you do not argue about that particular type of deceit to a judge especially the judge

who committed the deceit. Being that Judge Cogan was instrumental in assuring Mr. ONeill

that the witness was coming, the suggested jury argument would seem somewhat incomplete

without reference to the colloquy between Judge Cogan and me regarding Rule 50. But because

that matter would have been above the jurys head, I have outlined it for the instant reader.

Surely, not even assuming that the reader is familiar with rules governing the conduct of judges,

any layperson or lawyer would think that what Judge Cogan did here was unlawful.

Before turning to Judge Cogans final two accusations against me, I think it necessary to

illustrate the absurdity of his assertion that I do not understand federal practice and procedure.

Turning, again, to the record in this case, I first introduced myself to Judge Cogan by way of a

letter dated May 29, 2013. (King letter of May 29, 2013). In the letter I advised Judge Cogan of

the way the federal rules, binding case law, and procedural history of the case alleviated the need

for a jury trial. By analyzing various federal authorities in light of certain newly discovered and

undisputed facts, several 11th-hour party admissions, and a number of procedural and ethics

violations that precluded certain jury trial arguments, I demonstrated that a faithful application of

federal law required that a judgment be entered in favor of the plaintiffs. In that 11-page letter to

Judge Cogan, I referenced a half-dozen Federal Rules of Civil Procedure by number and

subsection, and I referenced a dozen or so court opinions or orders, most of which were issued in

this very case during its long procedural history.

Admittedly, I drafted and sent the letter to Judge Cogan less than a week before trial

began. However, because I had only learned the new facts and party admissions a few days - and

in some cases the day - before drafting the letter, I submitted the letter believing that Judge

Cogan, after having evaluated the authorities and arguments in it, would not be so inexorably

committed to NYCs interests that he would actually flout the law and proceed to an unnecessary

and wasteful jury trial. Although I was mistaken as to what Judge Cogan would do, I was mildly

pleased with his response, wherein he ruled that NYC would be required to respond by June 13,

2013. Judge Cogan reasoned that if the plaintiffs were to lose at trial, the motion would become

moot; and, as a corollary, if the defendants were to lose at trial, the motion might prove

dispositive. As already explained above, however, Judge Cogan evaded the Rule 50 analysis at

trial by waiving my clients rights, and by deceiving Mr. ONeill as to what more NYC had to

do in the case.

26

I submit that the merits of the analysis and argument embodied in my May 29, 2013,

letter is what prompted Judge Cogan to pull the Rule 50 caper at trial. And after the reader has

had an opportunity to review my letter, it should be obvious that the claim that I lack familiarity

with federal practice is as dishonest as it is expedient in deflecting attention away from the

piercing analysis I provided in the letter. Certainly, if I had misstated or misapplied the laws,

rules, misrepresented facts, or otherwise flubbed the analysis, Judge Cogan, self-assuredly

knowledgeable in matters of federal practice, would have handily refuted my analysis in the

same manner that he dismissed me as unqualified to practice in his courtroom. But, for some

reason, Judge Cogan did not take up the motion at all. He did not mention it either. He simply

tabled it, relying on his hope and belief that plaintiffs were going to lose. And, judging from his

conduct throughout the trial, it appeared that he was not going to leave his hope and belief to

chance. He would strive mightily to make it a self-fulfilling prophecy. Then, on June 12, 2013,

one day before NYC was required to provide a response to my Rule 50 motion, Judge Cogan

denied the motion out of hand. Having denied the motion, and having gone so far as falsely

declaring a mistrial to ensure he would never have to take it up, Judge Cogan continued to pursue

his self-fulfilling prophesy. And based upon his conduct in the subsequent proceedings, it is

clear that he is still pursuing that quest to this day.

Because a full exposition of Judge Cogans pursuit of that prophesy would require more

than double the pages constituting this letter, and because the same would require the attachment

of no fewer than 120 pages of transcripts and other official documents, I must defer such a

massive hermeneutical exercise for another day. But I can assure the reader, on my word and

integrity, that the record, when unfolded, will reveal that Judge Cogan, in a display that would

dazzle John Grisham and vindicate Robert Yates, resorted to every tactic imaginable in his

inexorable, loathsome quest to ensure my Rule 50 analysis never saw the light of day: rules were

broken, cases were ignored, laws were neglected, procedures were evaded, critical evidence was

excluded, irrelevant evidence was admitted, inauthentic evidence was published, allegations

were evidence, exhibits were concealed, case notes were doctored, documents were fabricated,

fonts were multi-colored, ex parte communications were undertaken, signals were given,

misrepresentations were made, exhibit lists were kited, discussions were avoided, threats were

issued, commentary was interjected, protocols were nullified, courtesies were withheld,

confusion was feigned, jury notes were altered, jurors were bullied, court transcripts were

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changed, judges were mystified, reason was suspended, insults were hurled, eyes were rolled, up

was down, left was right, forward was backward, clockwise was counterclockwise, what was

was not, and finally, an order was entered, on February 24, 2014, stating that I - having provided

the only faithful legal analysis of any attorney, judge or non-judge, involved in this case - was

unqualified to participate further because, among other assertions, I demonstrated a lack of

familiarity with federal practice and procedure. Truly, if what I observed Judge Cogan doing in

these proceedings was real federal practice, I suspect that I have never known any other judge,

including my former bosses in a federal courthouse, to engage in federal practice. And if Judge

Cogan is right about what constitutes federal practice, I have no doubt as to what he means about

me being not qualified to practice in the Eastern District of New York.

I believe the reader has probably already discovered the true purpose of Judge Cogans

February 24, 2014, order denying my application to appear pro hac vice. But for the sake of

completeness, and in the spirit of rigor, I address below Judge Cogans final two allegations.

VI. Judge Cogans allegation that I displayed contempt for the Court is false and finds no support in the record. A. Allegations regarding my predictions regarding expected witnesses.

Judge Cogan alleges that I showed contempt for the Court by refusing to tell him whether

I would ultimately call the witness Ciara Manning. First, I must make one thing absolutely clear:

I have never harbored, expressed, nor shown any contempt for any United States District Court.

I am a former U.S. Marine, thus, by my nature, I could not possibly harbor, express, or display

contempt for any creation of the U.S. Constitution. Thus, by extension, I could not possibly

harbor, express, or display contempt for any U.S. District Court, nor any other court organized

under Article III of the United States Constitution. Now that I have made that abundantly clear, I

turn back to the allegation that I showed contempt for the Court regarding the witnesses I

ultimately called in my case.

Judge Cogan asked me to predict the future. I could not (and still cannot) do that. I am

decent at making predictions, but I cannot tell anyone what the future will hold or even if I will

be late. In this case, I could not determine whether I would call Ms. Manning because I could

not predict whether Judge Cogan would arbitrarily exclude the documents that might have

rendered her testimony unnecessary. I raised that issue prior to trial and the Court deemed the

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documents inadmissible for unstated reasons. Thus, I contacted Ms. Manning and she agreed to

testify. On the day Judge Cogan asked me about my plans for calling witnesses, Mr. Southerland

had yet to take the stand. As such, I could not know whether Judge Cogan would maintain the

position that all of Mr. Southerlands exhibits were inadmissible. It turned out that Judge Cogan

only admitted one or two of Mr. Southerlands exhibits, so I ultimately called Ms. Manning as a

witness to prove exactly the same information contained in the documents Judge Cogan had

excluded without explanation.

To Judge Cogans credit, he was correct that I should have predicted that he would make

the wrong ruling on the documents, and thus force me to put Ms. Manning on the stand. That is,

Judge Cogan alluded that he knew which documents I intended to introduce to the jury; and he

simultaneously pretended to believe that he thought such an introduction would have been a

mistake on my part. So, he spent time at a side-bar and a subsequent conference trying to get me

to show him the specific documents I had in mind. More specifically, rather than permitting me

simply to lay a foundation pursuant to the rules of evidence, he demanded that I first proffer

the documents, so that he could protect the record. He suggested that I might have been

mistaken as to the date of the documents, so I had to show him the documents first -- to make

sure I was not really hurting my client by admitting them. But I knew what he really meant by

protecting the record. It meant that if a document were helpful to my case, he would exclude it

arbitrarily as he had done to virtually every document that helped my case. Nonetheless, I easily

read his deception because he has a common, obvious tell that permitted me to observe when he

was bluffing. In all truthfulness, if I can tell the future at all, it is because I can look at Judge

Cogan and thereby tell when he is bluffing. Similarly, it was clear to me long before Ms.

Manning testified that Judge Cogan had no idea how impactful her testimony was going to be on

the jury. She was, without a doubt, a star witness. So, by excluding the documents, Judge

Cogan had simply outwitted himself again.

Turning back to my unprofessional lack of soothsaying ability, because Mr. Southerland

would be subject to cross-examination before leaving the witness stand, I knew that questions

asked during the cross-examination itself might have necessitated calling Ms. Manning to the

witness stand after Mr. Southerland stepped down even in the event that Judge Cogan had

deemed all the documents admissible. As such, I told Judge Cogan, honestly, that I did not know

whether Ms. Manning would testify. It appears from the record, and from the nonverbal

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behavior he exhibited in-person, that Judge Cogan was trying to bully me regarding whether I

would call Ms. Manning. But, again, because I can easily read him, I called his bluff and he

backed off, stating, Mr. King, Im not trying to intimidate you. Certainly, where I had already

observed Judge Cogan make the misrepresentation that NYC had additional witnesses, I knew

that he was outright lying when he said: it is common practice to identify who your witnesses

are going to be the day before you call them. Indeed, Judge Cogan had so underestimated my

faculties up to that point that he telegraphed all of his strategies - giving me an additional

advantage by virtue of his hubris.

B. Allegations regarding Judge Cogan rolling his eyes.

I, along with every other person in the courtroom who was paying attention, saw Judge

Cogan rolling his eyes. It prompted me to ask him whether he was irritated. He denied that he

was irritated. He then denied that he rolled his eyes. I made a transition statement. Everyone

moved on except, apparently, Judge Cogan.

This is a fitting way to end the analysis. Everything I had observed Judge Cogan do to

that point had revealed his unflinching commitment to assisting NYC in the litigation. If there

were any single reason to commend him on his efforts, though, it would have been for his ability

to maintain a truly stoic demeanor throughout the process. While his tell was a dead-giveaway,

there was still something to say about the phlegmatic sophistication he seemed to have been born

to portray. Judge Cogan no doubt found his Ivy League alma mater a suitable proving ground for

donning a perpetual stiff upper lip; and I observed that it was not at all common for him to break

character in that regard -- except when, as reflected in the record, he rolled his eyes.

Yet, Judge Cogan denied having rolled his eyes. And considering that my eyes are quite

fallible - hence my need for glasses - and considering the distance between the bench and my

position near the gallery in the back, many could doubt whether I was actually able to see him do

it. Nonetheless, by that time, I had observed him for several days in a row and there was no

question that he was miffed. But, in witnessing the fervor of his denial about the eye rolling, I

made one more crucial observation about him that I had not notice before. The observation was

that before that moment, he had yet to realize that he was his own biggest problem. To clarify,

when he rolled his eyes, it was the first time he seemed to grasp the burden he had created for

himself by trying to bring about a preferred outcome, rather than the required outcome. I felt

sorry for him, and I figured that after denigrating the plaintiffs, the Constitution, the law, the

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appellate courts, the federal rules, the lawyers, the witnesses, the jurors, and himself, wasting

everyones time in an egoistic game he rolled his eyes upon discovery that he had been totally

ineffective in bringing about the specific outcome he preferred in the litigation, despite his

fiercely impelling inclination to do so. Not only had he failed to succeed in attaining that

outcome, but he had lost all footing whatsoever, falling headlong, nay tumbling into the chthonic

depths from which he drew his inspiration. He falls presently from greater heights still than

Icarus, Phaethon, or even the brightest angel, who plunged as all favorites must. Article III could

not have contemplated a more abysmal descent, although Yates predicted it. Indeed, if Judge

Cogan had simply applied the laws and rules of the Constitution with the slightest tincture of

good faith, I would not be finishing up a 30-page exposition detailing misconduct that would

subject any other federal judge to impeachment by the U.S. Congress, if not indictment by the

U.S. Department of Justice.

VII. Conclusion.

Despite all that has happened, and despite all the false and defamatory accusations Judge

Cogan has made against me, I harbor no feelings of contempt for him. Instead, I pity Judge

Cogan. I also pity the countless past and current parties to lawsuits who have mistakenly placed

faith in Judge Cogan to perform his judicial role faithfully. I also pity the other attorneys Judge

Cogan has attacked for providing faithful legal analyses. I pity the Southerland plaintiffs, who

still await the redress that Judge Cogan still seeks to preclude. I pity the other judges in the

Eastern District of New York, who have been denigrated and defamed by Judge Cogans

unprecedented misconduct. And, finally, I pity those who have been misled to believe that my

dutiful opposition to Judge Cogans quest to subvert and flout the laws of the United States

somehow makes me unqualified to practice law in the Eastern District of New York.

/s/Brian King Brian King, Esq.