Letter to AAG Re Rule 11 10-18-2014

8/10/2019 Letter to AAG Re Rule 11 10-18-2014

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October 18, 2014

DAVID J. SLEIGHT

Assistant Attorney General

Of CounselMain Place Towers

350 Main Street-Suite 300A

Buffalo, New York 14202

Re: Malkan v. Mutua No: 12-CV-0236

Dear Mr. Sleight,

I am attaching a copy of my complaint to the Public Integrity Bureau of the District Attorney of

Albany County.

You have stated facts in your filings to the Western District that you know are untrue, on the

word of your client, against all other evidence, and done no investigation at all. I believe thatyou have violated Rule 11 of the Federal Rules of Civil Procedure and I have instructed my

attorneys to file a motion for sanctions against you.

I also believe that you have violated numerous provisions of the New York Rules of ProfessionalConduct and have thereby assisted your client in perpetrating a fraud on this Court.

Finally, you are aware that your client gave the same false testimony to a state administrative

agency, PERB, on March 31-April 1, 2010. This false testimony had the effect of causing amiscarriage of justice.

I am not threatening to prosecute Dean Mutua. I have filed charges that I expect will result in his prosecution. He has committed a crime against the judicial process for which he must answer,

entirely apart from my civil actions in the Court of Claims and this court.

I believe that the Attorney General of this State has an obligation to enforce the laws of New

York and that you have a personal obligation to assess your own professional responsibilities. In

my opinion, you are well aware that this case has been prolonged for six years for the sole purpose of harassing an innocent person and that you have signed statements in which you have

made factual claims that you know are untrue.

Sincerely,

Jeffrey Malkancc: Rick Ostrove, Esq.

Bryan Arbeit, Esq.



Office of the District Attorney

Albany County

Public Integrity Unit

Albany County Judicial Center Albany, New York 12207

Contact information:

Jeffrey Malkan12 Valleywood Ct. W.

Saint James, N.Y. 11780

Suffolk County

(631) 862-6668 [email protected]

My complaint:

Perjury against Makau W. Mutua, Dean of SUNY Buffalo Law School in Albany County on

March 31-April 1, 2010 at a hearing of the Public Employment Relations Board, ALJ Kenneth S.Carlson

Address of individual against whom complaint is filed:

Dean Makau W. Mutua

SUNY Buffalo Law School

John Lord O’Brian Hall Buffalo, New York 14260-1100

Related legal actions pending:

Western District of New York – federal civil rights claim for violation of due process under §

1983;

NYS Court of Claims – motion to re-file claim for breach of contract; appeal of dismissal of

deficient notice of claim (in Appellate Division, Fourth Department).

Briefly describe claim:

Please see attached documents:

1. Newspaper articles, Buffalo News, UB Spectrum, dated September 24, 2014, describing

factual background of perjury allegations.

2. Declaration of Jeffrey Malkan, dated July 14, 2014, describing perjury in state court with

twelve attached documents describing futile attempts to notify the University and its legal

mailto:[email protected]





counsel (NYS Attorney General, SUNY Central Counsel, SUNY Buffalo Counsel, Governor’s

Office of Employee Relations);

3. Vice-Dean (co-defendant) Charles P. Ewing’s Motion to Sever Trials, filed August 13, 2014,

on grounds of prejudice because of Dean Mutua’s perjury;

4. Transcript of Dean Mutua’s perjured testimony before PERB on March 31, 2010 and April 1,

2010, and repeated at a deposition held under the auspices of the WDNY on December 19, 2013.

5. Correspondence with ALJ Kenneth S. Carlson of PERB, dated November 22 and November

30, 2011, attempting, unsuccessfully, to report Dean Mutua’s perjury.



1. Newspaper articles, Buffalo News, UB

Spectrum, dated September 24, 2014, describing

factual background of perjury allegations.



The Moreland Commission on Public Corruption in Buffalo, July 3, 2013

Francis Letro, Esq., Dean Makau W. Mutua, Governor Andrew Cuomo, President Satish K.Tripathi, Erie County District Attorney Frank Sedita



http://www.ubspectrum.com/news/view.php/849284/Law-school-Dean-Makau-Mutua-resigns-

Law school Dean Makau Mutua resigns

Dean Mutua faces allegations of lying under oath in federal courtBy SARA DINATALE

On September 24, 2014

Law school Dean Makau Mutua has resigned from his position, effective Dec. 19. Mutua said it was the “right time”

for him to leave his postion and continue to teach because he’s accomplished what he set out to do as dean. He is

currently facing allegations of lying in federal court.

Courtesy of UB News Center

Law school Dean Makau Mutua has resigned. The resignation comes amid allegations that he lied in

federal court and in a state administrative proceeding.

The alleged lying under oath stems from a 2011 case filed by Jeffrey Malkan who says the dean

wrongfully terminated his contract as a clinical professor. Malkan had signed a contract in November

2006 that stated he could only be fired for cause in accordance to the law school accreditation

standard. Two months after becoming dean, Mutua terminated the contract.

The suit also alleges that Malkan was denied due process under the 14th Amendment.

Mutua, who has been dean for seven years, will step down officially on Dec. 19, but he will continue

to teach at UB as a SUNY Distinguished Professor and Floyd H. and Hilda L. Hurst Faculty Scholar.

Mutua is a Harvard graduate and a well-known leader in international human rights.

Provost Charles Zukoski sent an email to faculty Monday announcing the resignation. He did not

mention the lawsuit in the email, but focused on Mutua’s accomplishments as dean, which include








recruiting 22 new faculty members, offering more experiential learning opportunities for students and

fundraising $23 million.

“I decided to step down because it was the right time: A seven -year tenure is twice as long as the

typical tenure for a law dean, and I’ve accomplished what I set out to do,” Mutua said in a written

statement to The Spectrum. Faculty and students interviewed by The Spectrum offered tepid to scathing critiques of Mutua’s

tenure and many students insist they have never seen Mutua on campus nor interacted with him. In

October 2010, the law school faculty attempted to hold a vote of no confidence in Mutua, but the

attempt was dismissed by then President John B. Simpson and then Provost Satish Tripathi,

according to email correspondence obtained by The Spectrum in 2013.

Like many law schools across the country, UB’s law school has been retrenching in recent years and

in March, the school announced its plans to shrink its incoming class from 200-225 students to fewer

than 200 and to reduce its faculty from 48 to 40.

The Malkan case began in 2011 and names both Mutua and law professor Charles Ewing, whoserved as head of the law school grievance committee that heard Malkan’s complaint. The federal

case, in U.S. district court, is now at the stage of considering summary judgment, which involves

whether the case can go forward to trial. The newest development in the case came in August when

Ewing filed a motion to have his case separated from Mutua’s. In the motion, Ewing’s lawyers argue

Ewing was an “innocent bystander,” who got caught in the disagreements between Malkan and

Mutua.

Therefore, Ewing has asked the court to separate his case from Mutua’s “to avoid foreseeable ‘spill-

over effect’ and indelible prejudice,” against him in light of the false testimony allegations against

Mutua.

Ewing could not be reached for comment, but on Tuesday Malkan told The Spectrum Ewing’s

involvement was “marginal” and that “he wasn’t responsible for the wrongdoing.” Malkan said his

lawyers have “put papers in to dismiss [Ewing] from the lawsuit.”

“I’ve been so frustrated for the last couple of years,” Malkan said. “I couldn’t believe Mutua was still

in the dean’s office with these allegations over his head. There’s no way a dean can function until his

name is cleared.”

The motion to separate the trials highlights the significance of the perjury allegations, which stem

from testimony Mutua gave regarding a faculty vote on Malkan’s promotion to clinical professor at a

Committee on Clinical Promotion and Renewal (CCPR) meeting. Seven faculty members testified

that the vote took place. Mutua said under oath the vote did not take place, rather that it was a voteto retain Malkan as a director of the Research and Writing program.

Mutua also testified former UB President William Greiner, who was a member of the law school

faculty, spoke at the meeting. UB law faculty members testified Greiner was not at the meeting.

Malkan said that at the time of the 2006 CCPR meeting, Greiner was sick and not regularly attending

faculty meetings. Greiner died in 2009.



When Mutua was asked to produce Malkan’s promotion dossier – an official document a person up

for promotion needs to prepare – for the court, the dean said it had disappeared. He said he didn’t

know what happened to it and it was missing when he took over the dean’s office.

Malkan said Tuesday it was an “obstruction of evidence.”

“It’s unthinkable that a dean of a law school would commit perjury and subvert the process andactually produce a miscarriage of justice,” Malkan said.

The university said it does not comment on pending litigation.

The Spectrum reached out to numerous law professors and students, most of whom declined to go

on the record about the atmosphere of the law school and the allegations against Mutua.

However, The Spectrum has pieced together a paper trail that indicates discontent, which includes

the October 2010 attempt by three tenured faculty members to hold a meeting to request a vote of

no confidence in Mutua.

Former President John B. Simpson and then Provost Satish Tripathi asked the faculty to attend the

meeting that would be held on Oct. 22, according to emails obtained by The Spectrum in 2013.

Mutua declined the meeting despite receiving a request signed by three members of the faculty in

accordance with faculty bylaws.

On Oct. 25, following a faculty meeting on Oct. 22, Simpson and Tripathi sent an email to the faculty

addressing the meeting regarding Mutua.

Law faculty said they never took a no confidence vote in Mutua, but voted to put the matter on the

agenda again. It triggered a meeting with Tripathi and Simpson, who told the faculty the

administration was not interested in their concerns about the law school leadership, according to

professors in the law school.

UB policy states that deans should be reviewed every five years. Mutua was dean for six and a half

years before a review was initiated, according to emails obtained by The Spectrum.

In February 2014, UB and SUNY Distinguished Professor of Chemistry Frank Bright, who headed

Mutua’s review committee, sent an email to the law school faculty saying a “five year review” of

Mutua was beginning.

Mutua began as interim dean in late 2007 after Nils Olsen stepped down. A press release

announced his appointment as dean in May 2008. Some law school professors question the process

that led to Mutua’s appointment because he didn’t go through a full and regular search process,

according to law school faculty. Tripathi appointed him after a failed national search. But UB

Spokesman John Della Contrada said, “there was nothing out of the ordinary about the search.”

The results of Mutua’s decanal review, which was completed around May 2014, are confidential,

according to Bright.

However, Provost Zukoski sent out an email to those who participated in Mutua’s review on July 1.

The letter outlines the law school’s accomplishments under Mutua, including improving the number

of law graduates who pass the bar, improving infrastructure and increasing fundraising efforts.



The letter states that Zukoski discussed the review results with Mutua and alludes to concerns of

faculty members.

“Through the decanal review process, Law School faculty and staff have raised issues of concern to

me as provost,” Zukoski wrote. “These issues have strained relationships within the school and

created tension around leadership and unit cohesion.” The letter does not indicate if the decanal review process had an effect on Mutua’s position as dean.

Della Contrada said “input by faculty, staff, students and members of the community is a vital part” of

the decanal review process.

Malkan is suing for $1.3 million in damages and said he has essentially been blacklisted in his

profession because Mutua not only fired him, but also would not write him a letter of

recommendation.

“The university always settles these cases and no one could understand why after the first six

months, ‘Why couldn’t they just let you go?’” Malkan said. “I would have just lef t. Just give me one

semester salary like some little severance pay and a letter of recommendation, like a letter of goodstanding, and I could have found another job and I would have been out of here.”

Malkan said he views Mutua’s resignation as a relief, and said he was surprised Mutua was allowed

to remain dean with lying under oath allegations lingering.

In a university release, Zukoski praised Mutua for what he has accomplished in his time as dean.

“He has led the school through a nationally challenging time for legal education, while strengthening

the school’s programs and faculty and advancing UB’s teaching, research and engagement

missions,” Zukoski said.

Tripathi expressed his thanks to Mutua, who has been in the law school since 1996, and

appreciation for his service to the university in the same release, stating the law school is “wellpositioned to achieve even greater prominence in legal education and scholarship.”

James Milles, a law professor who teaches legal ethics at UB, said those accomplishments Zukoski

pointed out in the letter to faculty would not have happened without the hard work of the entire

faculty.

“We’ve got a solid and dedicated group of faculty and staff without whom all those accomplishments

would not have been done and they will continue to do great things in the future,” he said.

Mutua, a native of Kenya, is active in Kenyan politics and writes political columns for Kenyan news

sites. He received a doctor of juridical science degree in 1987 from Harvard Law School, he served

on the Iran tribunal hearing in 2012 and was elected vice president of the American Society ofInternational Law in 2011.

Mutua’s position as dean and the inherent credibility that comes with it has allowed him to serve on

the Erie Canal Harbor Development Corporation and Gov. Andrew Cuomo’s Moreland Commission,

which was supposed to root out political corruption, but was shut down early.



Sam Benatovich, a second-year law student who has never met the dean in person, said the

allegations Mutua is facing are troubling. He said the law school’s program focuses on integrity and

students have to take a class on ethics in the legal profession.

If the allegations prove to be true, Benatovich said, “the dean of a law school can’t flagrantly

disregard the foundation of our legal system. It sends mixed messages as an educator. It’s not justwrong, but downright repugnant to create the next generation of lawyers while flaunting your lack of

respect for the legal standards.”

email: [email protected]

This article has updated to clairfy the difference between allegations and charges.

http://www.buffalonews.com/city-region/university-at-buffalo/deep-rift-exposed-as-ub-laws-dean-

resigns-20140927

Deep rift exposed as UB Law’sdean resigns Faculty foes allege perjury, mismanagement of school

Makau Mutua. Photo by Derek Gee/Buffalo News

By Phil Fairbanks | News Staff Reporter | @PhilFairbanksBN | Google+

on September 27, 2014 - 6:20 PM

http://www.buffalonews.com/city-region/university-at-buffalo/deep-rift-exposed-as-ub-laws-dean-resigns-20140927



https://twitter.com/PhilFairbanksBN



https://plus.google.com/103126673093378711300?rel=author









Behind the scenes at one of Buffalo’s oldest and most important legal institutions, there is a

growing rift, an internal family feud fueled by allegations of perjury against its leader, a near

vote of no confidence and an internal review that paints a portrait of a deeply divided

institution.

At the center of the storm is Makau W. Mutua, a Harvard Law graduate, an internationally

known human rights activist, and the dean of the University at Buffalo Law School. Mutuasuddenly gave up that position Monday in the wake of criticism over his leadership, and he

will step down in December to return as a faculty member.

Mutua’s seven years as dean appear to have divided the law school, pitting a man known

across the world for human rights activism against many of the school’s most distinguished

faculty members.

“It’s very toxic. It’s very sad,” one faculty member said of the environment at the law school.

“We have a community that feels alienated by the administration and distanced from the

school.”

The dean’s critics, and they are numerous, include some of the school’s most highlyregarded faculty members.

They claim Mutua’s management style divided the school at a time of great economic

turmoil. Applications and enrollment at UB Law, like at most law schools across the

country, are down dramatically, and the school is going through a downsizing of both faculty

and students.

Critics say Mutua, who came from within the ranks of the faculty, arrived in the dean’s office

with a “divide and rule” philosophy that placed a priority on loyalty and penalized critics

while rewarding allies.

But many alumni and donors view his stewardship as a much-needed step forward.

In their eyes, Mutua shook up a moribund faculty, reached out to alums who felt alienated

from the school and succeeded in raising $23 million in private donations. They say the law

school’s endowment has nearly doubled since he became dean.

“I found it absolutely refreshing,” said Daniel C. Oliverio, a well-known Buffalo lawyer,

alumnus and donor, of the dean’s efforts to reconnect with alumni. “I found his outreach

and responsiveness to be extraordinary.”

Mutua would not be interviewed for this story. But in a prepared statement, he said the

allegations of perjury and his disagreements with faculty had nothing to do with his decision

to step down.

“I decided to leave because it was the right time,” he said. “A seven-year tenure is twice as

long as the typical tenure for a law dean, and I’ve accomplished what I set out to do.”

And in a statement announcing Mutua’s resignation, UB President Satish K. Tripathi said

the dean left the law school “well positioned to achieve even greater prominence in legal

education and scholarship.”

“Within a university environment, it is expected that faculty, staff and administrators will

have strong and sometimes differing opinions about academic issues,” UB said in a separate



statement to The News. “Discussion, debate and collaboration are encouraged at a

university and are an important part of academic life.”

A lack of confidence

In the halls of the law school, there is a far different view of the man many believe aspires to

high political office in his native Kenya.Several faculty members spoke to The Buffalo News on the condition they not be identified,

but others, including six of the school’s most highly regarded faculty members, talked

openly about their lack of confidence in Mutua. Some are retiring next year.

Simmering beneath the surface for years, their dissatisfaction became public when eight

filed signed statements in support of a law professor who was fired by Mutua six years ago

and subsequently sued the dean in Buffalo federal court.

The suit by Jeffrey Malkan accuses Mutua of lying under oath, not once but twice, about the

firing. The faculty members’ statements support Malkan’s account of what happened and

contradict Mutua’s side of the story.

“If there’s one thing we should be teaching our students, it’s that sense of honesty, trust and

professionalism,” said law professor Martha T. McCluskey.

Mutua has denied in court papers the allegations of perjury, but both he and the university

declined to comment on the suit while it’s pending before U.S. District Judge Richard J.

Arcara and U.S. Magistrate Judge H. Kenneth Schroeder.

In the eyes of some faculty members, Malkan’s suit is a symptom of a larger problem – the

dean’s mismanagement of the school. They claim Mutua lacks an educational vision and is

more concerned with power and control than with the school’s future.

They also claim the dean singled them out because of their perceived disloyalty and that his

actions led to a near vote of no confidence four years ago. The effort was quashed by then-President John B. Simpson.

“Things were already brewing,” said Alfred S. Konefsky, a University at Buffalo

Distinguished Professor, of the growing dissent at the school. “The senior faculty felt it was

important to go on the record.”

The vote never happened. But, a few years later, Mutua again found himself the target of a

scathing critique, this one an internal evaluation done by a group of faculty members led by

chemistry professor Frank V. Bright.

Bright said he could not comment on the review, but Provost Charles F. Zukoski, in a letter

to law school faculty at the time, acknowledged the faculty’s dissatisfaction with the dean. “These issues have strained relationships within the school and created tension around

leadership and unit cohesion,” Zukoski said.

By some accounts, the tension escalated and, in recent months, led to a private meeting

between Zukoski and six female faculty members concerned about Mutua’s treatment of

them.



“He has a very authoritative style that is arbitrary and capricious, and usually works to his

benefit,” said law professor Rebecca R. French.

French would not comment on the meeting, but others confirmed it centered on Mutua’s

relationship with female faculty members and, more specifically, a series of actions he took

against them.

More often than not, the actions they point to involve Isabel Marcus and Lynn Mather, two

other law professors. They say Mutua removed Marcus as head of the school’s international

programs while she was undergoing chemotherapy treatment for breast cancer.

“He tried to force me to resign,” said Marcus, who remains on the faculty. “I refused and he

fired me.”

Faculty members say Mather, former head of the school’s highly regarded Baldy Center for

Law & Social Policy, also was targeted by the dean. Colleagues say Mather, who has since

been named a SUNY Distinguished Service Professor, was recruited from Dartmouth

College to head the Baldy Center.

“I was totally shocked,” Mather said. “I was deeply invested in the center and had a lot ofprograms planned for the next year.”

A red flag

To hear faculty members talk, the growing unhappiness with Mutua is rooted, in part, in his

decision to fire Malkan in 2008.

It was a sign of things to come, they say, and a red flag to anyone, but especially to

untenured faculty members, who might think twice about their allegiance to the dean.

Even more important, perhaps, was what followed, namely Malkan’s wrongful-termination

suit, accusing Mutua of lying under oath about a faculty vote to promote him.

“There’s not the slightest bit of evidence that Mutua did not commit perjury,” Malkan told

The News. “He’s actually succeeded in carrying out a miscarriage of justice.”

At the heart of the suit is a 2006 meeting at which faculty members took up the question of

Malkan’s promotion from associate clinical professor to full clinical professor. He also was

director of the school’s Legal Research and Writing Program.

Faculty members who were there say the vote was close, but Malkan’s promotion was

approved. They say Simpson, who was then president, confirmed it in a letter to Malkan.

Mutua, who was named interim dean a year later, removed Malkan from his research and

writing post in 2008 and, a few months later, fired him from his clinical professor’s post as

well.

Malkan responded by filing a complaint with the Public Employee Relations Board – PERB

ruled against him – and later a civil lawsuit demanding $1.3 million in damages. Supporters

say Malkan has been unable to find work since his firing.

Mutua denies the allegations of perjury and, in court papers, claims there never was a vote

to promote Malkan.



“There was only one v ote, which was to extend him for another year as director of the

program,” Mutua said during a deposition last year.

“And you remember this clearly?” he was asked.

“I remember this very clearly,” Mutua answered.

Privately, faculty members say his recollections of the vote are, at best, off base and, at worst, dishonest.

Charles P. Ewing, former vice dean of the law school and a co-defendant in the suit, would

not comment on the perjury allegations but, as part of the court case, filed a motion to

remove himself from the suit.

In his motion, Ewing says he was often “openly and strongly critical” of Mutua and his

management of the law school. He also claims he asked Mutua to resign in order to avoid

the vote of no confidence four years ago.

“Mutua’s credibilit y is certain to be attacked at trial, and that attack will be built on the

credible testimony and notes of many distinguished law professors,” Ewing said in a signedstatement to the court.

Ewing went on to say that the perjury allegations have tainted him, as well, and that fairness

requires he be removed from the suit. Malkan has since dismissed Ewing from the suit.

Ewing would not comment on his motion but, in a brief statement to The News, said his five

years as vice dean, working alongside Mutua, proved frustrating.

“I did my best to serve as a buffer and mediator between the faculty and the dean,” he said.

“As troubled as I and most of my colleagues are about some of the things that have

happened at the law school in recent years, there’s not a single one of us who isn’t fully

committed to our students and to retaining our well-deserved reputation among lawyers,

judges and legal scholars.”

As part of his motion, Ewing included the declarations of eight other professors, most of

whom were at the 2006 meeting. Each of them supports Malkan’s and Ewing’s account of

what happened.

Seen as a savior

There was a time when Makau Mutua was viewed as a savior of sorts.

It was 2007, and Law School Dean R. Nils Olson had announced he was stepping down.

When a national search for a new dean failed, the university looked inside and found Mutua,

a respected faculty member and internationally known human rights scholar.

He became dean in early 2008 after a brief stint as interim dean and, by all accounts,

quickly made his mark on the law school.

“Makau has re-energized that faculty,” said Thomas E. Black Jr., a Dallas lawyer, alumnus

and chairman of the Dean’s Advisory Council. “I think he’s added a ton of energy to the

school.”



To hear Black talk, Mutua shook up a school that had fallen in national law school rankings,

an issue of great concern to alumni.

He credits the dean with bringing in more than 20 new faculty members and overseeing a

difficult but necessary downsizing. The hope is that a smaller law school – this year’s

incoming class of 145 is down from a high of about 250 a few years ago – will result in better

students and, therefore, higher rankings.

“Change is a difficult thing, especially to tenured faculty who have been there a long time,”

Black said.

Among Mutua’s supporters, there is a school of thought on why the senior faculty rose up

against him. They view it as a generational conflict, an old guard versus new guard type of

battle.

“Every organization has that,” said Oliverio, the Buffalo lawyer and UB Law School alum

and donor. “Show me an organization, a business, that doesn’t have that.”

Even critics acknowledge that Mutua is popular among donors. He is often described as

charming and charismatic, and supporters say he is personally responsible for the success ofthe law school’s $30 million capital campaign.

To date, he’s raised $23 million, and Oliverio says his success is rooted in a desire to reach

out to alumni with deep pockets.

He said Mutua is the first UB Law School dean in his memory to come to the offices of

Hodgson Russ, Oliverio’s law firm, and ask for the firm’s input on changes at the school. The

firm has since committed $500,000 to the law school.

Mutua’s emphasis on fundraising is no accident. With a decline in both enrollment and state

aid, it has become more and more necessary for UB to raise money privately, and Mutua has

done just that.“I think we’ve been fortunate to have Dean Mutua’s leadership and vision,” said Francis M.

Letro, a well-known Buffalo lawyer, alumnus and longtime donor.

More than anything else, Letro credits Mutua with preparing the school for the next

generation of lawyers.

The dean has invested in technology as a way to improve the school’s long-distance, global

teaching and in the aging and tired physical plant.

“I think Mutua saw that coming,” Letro said of the decline in law school enrollments. “I also

think he’s done a lot of good at the law school to position it for the challenges of a 21st-

century legal education.” A surprise to some

Mutua’s resignation surprised a lot of faculty members. They say Tripathi seemed insistent

on keeping Mutua at the helm and, as recently as last week, expressed support for him.

But six days before his resignation, Tripathi’s boss, SUNY Chancellor Nancy L. Zimpher,

received a letter from several female faculty members, detailing their complaints about

Mutua and their effort to seek help from the administration.





In October 2010, then President John B. Simpson and Tripathi dismissed the concerns of law school

faculty after they attempted to hold a vote of no confidence in Mutua. According to law school

faculty, Simpson and Tripathi informed them that they were not interested in the faculty’s concerns

about the dean. Such willful disregard of complaints that at the very least merited investigation is

indicative of an overly lenient attitude surrounding the leadership of UB’s academic departments.

Now, almost four years later – four years of faculty malcontent and complaints from students that

they’ve never even seen Mutua – UB’s law school, which is already planning to downsize, faces the

unpleasant prospect of a dean facing allegations of lying in federal court.

The allegations stem from a 2011 lawsuit filed by former clinical professor Jeffrey Malkan, who

claimed that Mutua fired him unfairly. Malkan is suing for $1.3 million in damages and insists his

unlawful firing and Mutua’s refusal to write him a letter of recommendation left him blacklisted and

unable to find work.

Mutua is alleged to have lied while under oath, after his statements contradicted testimony from

seven other UB law professors. He has also claimed to have lost materials he was required to

submit to the court, in a move that Malkan says is obstruction of evidence.

And yet, after all this – after a shaky appointment, long absences from campus, discontent from

professors and legal turmoil – six and a half years went by before even the possibility of

accountability arose.

Mutua’s five-year review wasn’t initiated until February 2014, six and a half years after his

appointment. Mutua’s review clearly wasn’t a priority to the administration, despite the multitudes of

complaints generated by his questionable behavior. This suggests a serious lack of commitment to

the development and maintenance of quality leadership at the law school.

Even when carried out in a timely manner, five-year decanal reviews are insufficient. Half a decade

passes before deans’ successes and failures are evaluated and discussed, before problems are

addressed and practices improved.

This should not be standard practice.

A lot can happen in five years – students arrive as freshmen and depart as graduates within that

timespan.

This is especially problematic for recently appointed deans, such as Mutua, who could certainly

benefit from more immediate feedback. UB’s outlined procedure for review of academic deans

recommends that a preliminary review of new deans after three years, noting “a new dean can

benefit markedly from a review during the initial years of his or her appointment.”

Somehow, Mutua flew under the radar for more than double that time. In the years that Mutua

worked for the law school without undergoing review, professors were evaluated at least six times.

UB requires that department chairs review with faculty members at least once a year, discussing

student feedback and assessing professors’ teaching. This procedure is sensible and beneficial to

instructors and students alike. Deans should face a similarly rigorous review process.









































































































3. Vice-Dean (co-defendant) Charles P. Ewing’s

Motion to Sever Trials, filed August 13, 2014, on

grounds of prejudice because of Dean Mutua’s

perjury.



UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_________________________________________

JEFFREY MALKAN,

Plaintiff,

v.

MAKAU W. MUTUA and

CHARLES P. EWING

in their individual capacities,

Defendants.

_________________________________________

MEMORANDUM OF LAWIN SUPPORT OF

CHARLES P. EWING’S

MOTION FOR SEPARATE

TRIALS

12-CV-0236(A)

PRELIMINARY STATEMENT

This Memorandum is submitted in support of Defendant Charles P. Ewing’s (“Ewing”)

Motion for Separate Trials. Plaintiff Jeffrey Malkan’s (“Malkan”) claims against Dean Makau

Mutua (“Mutua”) should be tried separately to avoid foreseeable “spill-over effect” and indelible

prejudice to Ewing, who truly is an innocent bystander to the events that led to Malkan’s § 1983

employment claim. Ewing played no role in Mutua’s decision to non-renew Malkan’s term

appointment as Clinical Professor. Ewing entered the picture later, as part of a good faith

process within the Law School to try to resolve in a collegial fashion differences among faculty

members. Instead of getting a reward for his selfless service and professionalism, his good deed

has been punished. Lest the punishment become even worse, he asks for a separate trial.

FACTS

Malkan is a former Clinical Professor at the State University of New York at Buffalo Law

School (the “Law School”). Mutua is the Dean of the Law School. Malkan was hired as Clinical

Associate Professor in 2000. (Exhibit A: Malkan Dep. 35; Exhibit B: Defendant’s Ex. 6). On

Case 1:12-cv-00236-RJA-HKS Document 59-2 Filed 08/13/14 Page 1 of 14



2

April 28, 2006, the Committee on Clinical Promotion and Renewal (“CCPR”)1 held a meeting to

discuss Malkan’s promotion to Clinical Professor. (Exhibit C: Avery Dep. 22-23). Mutua

(who was not then Dean of the Law School) attended the meeting as a tenured faculty member.

Also in attendance were Professors Susan Mangold, Dianne Avery, Errol Meidinger, Elizabeth

Mensch, Fred Konefsky, George Kannar, Tony Szczygiel, Rob Steinfeld, Rebecca French, Bert

Westbrook, Shubha Ghosh, Janet Lindgren, Marcus Dubber, Stephanie Phillips, Barry Boyer,

Jim Gardner, and Guyora Binder. (Exhibit C: Avery Dep. 74-76; Exhibit D: Plaintiff’s Exs. 1

& 17). Though she arrived late, Professor Isabel Marcus also attended the meeting. (Exhibit C:

Avery Dep. 76). Avery and Mangold took notes of the meeting. (Exhibit C: Avery Dep. 23;

Exhibit D: Plaintiff’s Ex. 17; Exhibit E: Mangold Dep. 17-18; Exhibit D: Plaintiff’s Ex. 1).

Avery testified, and her contemporaneous notes confirm:

We then had a vote on [Malkan’s] candidacy for clinical full professor for anappointment to – promotion to the position of a clinical full professor from his

position as clinical associate professor.

That vote I can see – I remember at the time the vote passed by a majority vote

and I can see from my contemporaneous notes that the vote was nine yes, seven

no and three abstentions.

(Exhibit C: Avery Dep. 28; Exhibit D: Plaintiff’s Ex. 17)

Mangold, who was then Vice Dean for Academic Affairs and chaired the meeting in the

Dean’s absence, testified: “The outcome [of the vote to promote Malkan] was that he was

appointed and, you know, to the – reappointed recommendation for reappointment to full clinical

1 Under the Faculty Bylaws, the Law School’s Committee on Clinical Promotion and Renewal (“CCPR”) has

“jurisdiction over and the power to make recommendations with respect to promotions, including the granting of an

indefinitely renewable long-term contract, renewal, dismissal, or termination of the appointment of a Faculty

Member who is on an indefinitely renewable long-term contract or on track for [one].” (Exhibit D: Plaintiff’s Ex.

8, p. 8). The CCPR is comprised of “all Faculty Members who are tenured or on an indefinitely renewable long-

term contract”; it is chaired by the Dean. (Exhibit E: Mangold Dep. 114-115; Exhibit D: Plaintiff’s Ex. 8, p. 8).




3

professor.” (Exhibit E: Mangold Dep. 17 & 68). Mangold’s contemporaneous notes reflect the

same vote count as Avery’s. (Exhibit E: Mangold Dep. 18; Exhibit D: Plaintiff’s Ex. 1).

Steinfeld testified that “there was a vote in favor of Professor Malkan’s promotion to

clinical professor.” (Exhibit F: Steinfeld Dep. 9). And French-Redwood testified: “[t]he topic

of his tenure as a clinical professor was brought up and we voted on it. . . . It was not

unanimous, as I recall, but it was a majority or a significant percentage was pro, granting

Professor Malkan [full clinical professor status].” (Exhibit G: French-Redwood Dep. 6).

To date, Mangold, Avery, Steinfeld and French – as well as three others who attended the

April 28, 2006 CCPR meeting (Shubha Ghosh, Alfred Konefsky, Lynn Mather and Isabel

Marcus) – have also attested under penalty of perjury that the CCPR voted by secret ballot at that

meeting to recommend that Jeffrey Malkan be promoted to Clinical Professor (Exhibit H:

Declarations of Dianne Avery, Rebecca French, Shubha Ghosh, Alfred Konefsky, Susan

Mangold, Isabel Marcus, Lynn Mather and Robert Steinfeld).

Mutua testified at his deposition in this matter that the CCPR did not vote on whether

Malkan should be promoted to Clinical Professor; rather he testified that the CCPR voted to keep

Malkan as Director of the Research and Writing Program for an additional year. (Exhibit I:

Mutua Dep. 36). Mutua swore that the CCPR voted to have Malkan stay on “as a caretaker of

the program while we also look for another Director and he look for another job elsewhere.”

(Exhibit I: Mutua Dep. 37).

Mutua also testified that the vote he contends was taken to retain Malkan as Director of

Research and Writing for one more year was so close that someone at the meeting questioned

whether abstentions should be counted as negative votes. (Exhibit I: Mutua Dep. 39). Then

Mutua testified that former State University of New York at Buffalo President William Greiner,




4

who was a member of the Law School faculty, spoke at the meeting and advised the CCPR on

the question of how abstentions should be counted. (Exhibit I: Mutua Dep. 39-40). Contrary to

Mutua’s testimony about Greiner’s statement is the uncontroverted fact that it would have been

impossible for Greiner to speak at the meeting because, as is abundantly clear, Greiner was not in

attendance at this CCPR meeting. (Exhibit D: Plaintiff’s Exs. 1 & 17; Exhibit H: Avery Decl.,

¶ 7).

Prior to his testimony in this action, Mutua testified under oath at the administrative

proceeding relating to Malkan’s nonrenewal before the Public Employment Relations Board

(“PERB”), “There was no vote on [the promotion] issue.” (Exhibit J: PERB Transcript, Vol. 3,

p. 291). According to Mutua, Malkan was not going to be promoted following that meeting

because the CCPR never voted on his promotion at the meeting. ( Id.) Mutua testified that there

was no subsequent meeting to vote on Malkan’s promotion. ( Id.) So, according to Mutua – and

only Mutua – Malkan was promoted to Clinical Professor without a recommendation from the

CCPR. Mutua contended, therefore, that then-Dean Nils Olsen had no authority to recommend

Malkan be promoted to Clinical Professor because he acted absent a recommendation from the

CCPR.2 ( Id.)

Mutua continues to insist that his recollection of the April 28, 2006, meeting is correct,

even after four faculty members in their depositions in this litigation have contradicted his

version of events. On December 19, 2013, he categorically maintained under oath that there was

no vote on Malkan’s promotion to Clinical Professor and that the only vote that took place was

on whether Malkan should be allowed to continue for an additional year as Director of Research

and Writing. Mutua testified: “I remember this very clearly.” (Exhibit I: Mutua Dep. 43). To

2 This seems to contradict Mutua’s theory in this litigation that he has the right, absent recommendation from the

CCPR, to non-renew Malkan’s appointment.






6

Decl., ¶ 20). “That’s not what happened,” observed Gardner. He then stated his recollection that

a vote had occurred, that the vote was valid, and that Malkan had been promoted to Clinical

Professor. (Exhibit K: Ewing Decl., ¶ 20).

Mutua, therefore, has testified twice under oath—at the PERB hearing and in his

deposition in this litigation—as to his unique version of events at the CCPR meeting on April 28,

2006. He has not produced a single witness—from the eighteen other tenured faculty members

who attended the CCPR meeting—to support his account, though he has had ample opportunity

to do so before, during, and after his testimony under oath in two separate legal proceedings.

Respectfully, we believe the reason he has been unable to provide evidence of his version of

events is that none exists, that is, no witness can or will come forward with an even vaguely

similar story.3

In March 2008, shortly after Mutua became Interim Dean of the Law School, he fired

Malkan from his position as Director of the Research and Writing Program. Subsequently, on

August 28, 2008, Mutua, then Dean of the Law School, gave Malkan a one-year notice that his

appointment as Clinical Professor would not be renewed. Following Malkan’s notice of non-

3 In the Statement of Undisputed Facts submitted in support of Mutua’s Motion for Summary Judgment (¶29, p. 9-

10, filed June 7, 2014), Mutua’s attorney concedes the discrepancy in testimony, and thereby highlights the fact that

his client maintains a version of events sharply in contrast with all other testimony on the subject:

There is sharp disagreement regarding what occurred at the meeting and what exactly the Committee

voted on. Malkan and several third party witnesses deposed in this action claim that a vote was

taken on whether the Committee should recommend to the Dean that he be promoted to full Clinical

Professor, and that the vote was in his favor. Defendant Matua [sic], on the other [hand?], recalls

that the meeting quickly devolved to a discussion of whether Malkan should continue as Director of

the Research and Writing Program, and that a vote was eventually taken on whether the Committee

should recommend that the Dean offer Malkan a terminal one year appointment, and that vote came

out in Malkan’s favor.

Only Mutua and no one else subscribes to his narrative. By stipulating this “sharp disagreement,” Mutua’s counsel

attempts to finesse the obvious and uncomfortable truth that not only is there a conflict in the testimony, but that

Mutua’s version of events is uncorroborated by either other witnesses or documents. Indeed, the notion of a “sharp

disagreement” is a conceit since Mutua is the only person with a different version of the events.




7

renewal, Ewing recommended to Malkan that he invoke the faculty grievance process, provided

under the Faculty Bylaws, as “a way to try to amicably resolve the lack of communication”

between Malkan and Mutua.” (Exhibit L: Ewing Dep. 23). On January 7, 2009, Malkan

submitted a grievance against Mutua to the Grievance Committee. (Exhibit A: Malkan Dep.

105, 117; Exhibit B: Defendants’ Ex. 30). Whereas Malkan’s claim against Mutua is based on

Mutua’s decision to non-renew his term appointment without a recommendation from the CCPR

and Mutua’s failure to bring the issue before the CCPR at all, Malkan’s claim against Ewing

arises out of Malkan’s subsequent invocation of the Law School faculty grievance process,

administered by the Grievance Committee. Ewing is a defendant in this action solely because a

faculty committee had designated him as Chair of the Grievance Committee. After receiving his

non-renewal notice, Malkan also began pursuing various remedies though his union via PERB

administrative proceedings and in the Court of Claims. The Grievance Committee, through

Ewing, promptly began investigating the grievance in accordance with the Law School’s Faculty

Bylaws. (Exhibit L: Ewing Dep. 23). Ewing had already spoken to Malkan. ( Id.) Thus, his

next step was to speak to Mutua. ( Id.) Bringing the faculty grievance process to a halt, Mutua

refused to speak with Ewing because of the other pending proceedings. Mutua told Ewing that

he could not discuss the grievance “because there is current litigation and threatened litigation by

Professor Malkan against the university, the law school, maybe even the dean.” (Exhibit L:

Ewing Dep. 23-24). The Grievance Committee’s unanimous recommendation, therefore, was

that there was nothing the Grievance Committee could do until Malkan’s other claims had been

adjudicated and Mutua was free to speak to the Grievance Committee. (Exhibit K: Ewing Decl.

¶ 10; Exhibit L: Ewing Dep. 23-26).




8

MALKAN’S PLAN TO SHOW MUTUA’S FALSE TESTIMONY

On November 11, 2011, Malkan sent a letter to Lynn Vance, an attorney in the

Governors’ Office of Employee Relations. (Exhibit M). Vance had represented the State

University of New York at Malkan’s PERB hearing. In this letter, Malkan alleged: “Makau

Mutua gave false testimony under oath pertaining to a material fact in the case, specifically, the

faculty’s approval of my reappointment to . . . the rank of full clinical professor.” In support of

his allegations, Malkan included excerpts of Mutua’s PERB testimony as well as emails he

received from former Law School professor Markus Dubber, who attended the CCPR meeting,

and former Law School Dean Nils Olsen (“Olsen”), who did not. Professor Dubber advised

Malkan that the majority of the faculty members attending the CCPR meeting voted “to grant

[Malkan] tenure as a clinical professor.” (Exhibit M). Olsen, who was Dean of the Law School

in April 2006, informed Malkan that, although he had not attended the CCPR meeting, Professor

Mangold called him shortly after the meeting ended and told him that the CCPR voted to

approve Malkan’s promotion to Clinical Professor. Olsen also advised Malkan that he had “at

least one conversation . . . about the meeting and vote with a colleague that was entirely

consistent with reappointment.” (Exhibit M).

Malkan then sent Vance and several SUNY employees, including Ewing, an email on

November 27, 2013, reiterating his evidence that Mutua testified falsely under oath. (Exhibit

N). In that email, Malkan contended that Mutua lied under oath at the PERB proceeding when

he testified that there was no vote on Malkan’s promotion to full Clinical Professor. Malkan

stated: “This lie, of course, calls into question Dean Mutua’s credibility on every other point of

his testimony . . . .” (Exhibit N).




9

On April 20, 2014, Malkan contacted State University of New York at Buffalo President

Satish Tripathi with his concerns regarding Mutua’s false testimony both before PERB and

during his deposition in this matter. (Exhibit O). In that email, Malkan applied Mutua’s

conduct to the elements of 18 U.S.C. § 1621, which is the federal perjury statute, and New York

Penal Law § 210.15, the state penal statute.

On April 22, 2014, Malkan sent another email on this same topic to Liesl Zwicklbauer

and copied Vance and several SUNY employees. (Exhibit P). Malkan focused on Zwicklbauer

based on her role as co-counsel with Vance in his PERB matter. (Exhibit P). Malkan stated in

that email that Mutua lied under oath, his lies were premeditated and caused a miscarriage of

justice. (Exhibit P).

Throughout this litigation, in blogs posted on the Internet, in letters addressed to various

University officials, and in articles published by the media, Malkan has accused Mutua of lying

under oath. At the trial, Malkan will put on a parade of tenured Law School professors who will

testify to facts that support Malkan’s contention that Mutua has lied under oath, twice.

If this case is tried against both Defendants, the strength of the evidence against Mutua

will indelibly stain Ewing because the jury will improperly impute Mutua’s bad acts to Ewing.

This foreseeable and prejudicial taint cannot be prevented by an instruction. Accordingly, Ewing

requests that Malkan’s claims against Mutua be tried separately from Malkan’s claims against

him.

THE SEPARATE TRIALS STANDARD: AVOIDING PREJUDICE

Federal Rule of Civil Procedure 42(b) states: “SEPARATE TRIALS. For convenience, to

avoid prejudice, or to expedite and economize, the court may order a separate trial of one or

more separate issues, claims, crossclaims, counterclaims, or third-party claims.” Fed. R. Civ. P.




10

42(b) (emphasis added). The decision to bifurcate a trial rests within the sound discretion of the

trial court. See, e.g., Simpson v. Pittsburgh Corning Corp., 901 F.2d 277, 283 (2d Cir. 1990).

There is no bright-line test. Rather, courts analyze the application of Rule 42(b) on a case-by-

case basis. See, e.g., Monaghan v. SZS 33 Assocs., L.P., 827 F. Supp. 233, 245 (S.D.N.Y. 1993).

Courts consider whether separate trials will (1) promote convenience; (2) expedite the

proceedings; or (3) avoid unfair prejudice. Fed. R. Civ. P. 42(b). Only one of the issues must be

met to justify bifurcation. Daniels v. Loizzo, 178 F.R.D. 46, 47 (S.D.N.Y. 1998).

Rule 21 provides that the “court may also sever any claim against a party.” Fed. R. Civ.

P. 21. Courts and parties frequently blur Rules 21 and 42 “without maintaining the proper

distinction between the two.” Keister v. Dow Chemical Co., 723 F. Supp. 117, 119 (E.D. Ark.

1989). Trial courts have broad discretion to employ either of these rules, which are determined

using the same standard. New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1082 (2d Cir.),

cert. denied, 488 U.S. 848 (1988) (citations omitted). “The distinction between these two rules is

that separate trials usually will result in one judgment, but severed claims become entirely

independent actions to be tried, and judgment entered thereon, independently.” Gonzalez v. City

of Schenectady, No. 00-CV-0824, 2001 U.S. Dist. LEXIS 14406, at *29-30 (N.D.N.Y. Sept. 17,

2001) (internal quotes and citations omitted).

Rule 20(b) provides: “Protective Measures. The court may issue orders—including an

order for separate trials—to protect a party against embarrassment, delay, expense, or other

prejudice that arises from including a person against whom the party asserts no claim and who

asserts no claim against the party.” Fed. R. Civ. P. 20(b); see also Third Degree Films v. Does

1-47 , 286 F.R.D. 188, 196 (D. Mass. 2012).




11

“Prejudice can be shown ‘where evidence as to the specific injuries suffered by plaintiffs

might influence the jury’s consideration of other issues.’” Corrigan v. Methodist Hosp., 160

F.R.D. 55, 57 (E.D. Pa. 1995) (citing Keister , 723 F. Supp. at 121). Thus, “[t]he potential that

the jury might consider damaging evidence against one party as evidence against a co-party is

grounds for separate trials.” Moore’s Federal Practice – Civil § 20.09 (citing Keister , 723 F.

Supp. at 120-122). This is called the “spill-over” effect. Id.

Malkan plans to make his case by showing that Mutua is a liar. Ewing will be associated

with Mutua. Ewing and Mutua are not only co-defendants, but are both long-term employees of

the Law School and both have held roles in the Law School’s administration. Mutua, as Dean of

the Law School, in fact appointed Ewing to two of his administrative positions – Vice Dean for

Legal Skills in 2009 and Vice Dean for Academic Affairs in 2012. If the jurors believe that

Mutua was dishonest (and it is foreseeable that they will based on the unwavering testimony of

every other witness), the jurors’ distrust will likely “spill-over” and rub off on Ewing. See, e.g.,

Deskovic v. City of Peekskill, 673 F. Supp. 2d 154, 171 (S.D.N.Y. 2009) (“there is a risk that

trying all of Plaintiff's claims in a single trial could lead to guilt by association and spillover

prejudice.”) (Internal cites and quotation marks omitted).

The risk of spill-over prejudice is particularly acute where, as here, the co-defendants

have different levels of culpability. In re Blech Sec. Litig., 94 Civ. 7696 (RWS), 2003 U.S. Dist.

LEXIS 4650, at *39) (S.D.N.Y. Mar. 27, 2003) (“When many defendants . . . have significantly

different levels of culpability, the risk of prejudice is heightened.”) (Internal quotation marks

omitted). Here, Mutua – and Mutua alone – made the decision not to renew Malkan’s

appointment as Clinical Professor. This was done absent any recommendation from the CCPR.

Mutua contends (in his Statement of Undisputed Facts, ¶22, p. 7) that the Dean was “not required




12

to seek the faculty’s recommendation to non-renew Clinical Faculty appointments,” because “the

Dean had the discretion to either accept them or reject them.” Mutua may or may not have been

free to ignore the faculty’s recommendation, but whether he was free to avoid ascertaining that

recommendation in the first instance (as part of gathering and considering the totality of the

factors that might inform his decision to terminate Malkan’s appointment as a Clinical Professor)

is at issue in Malkan’s claims against Mutua. Malkan argues these are not mere paper rights to

be disposed of as inconvenient by a law school dean.

Ewing had nothing to do with any of Mutua’s acts. Rather, Ewing has been swept up in

Malkan’s lawsuit simply because he happened to be Chair of the Grievance Committee. It was

Mutua’s refusal to cooperate with the Grievance Committee that prevented it from

recommending anything other than abeyance of Malkan’s grievance.

Malkan’s claims against Mutua and Ewing are distinct. Malkan claims Mutua violated

his rights by not having the CCPR weigh in on Mutua’s non-renewal decision. Ewing was not

part of Mutua’s non-renewal decision and, in fact, Ewing played no role in any employment

decision relating to Malkan. Thus, Ewing would not even be a witness regarding Malkan’s

claims against Mutua (or Mutua’s defenses to Malkan’s claims).

Malkan claims Ewing did not properly process his grievance. Ewing’s alleged

wrongdoing occurred well after Mutua’s decision not to renew Malkan’s term appointment. The

other members of the Grievance Committee, Professors Janet Lindgren and Isabel Marcus,

would be likely witnesses. Ewing does not need to call Mutua to prove that Mutua’s refusal to

cooperate with the Grievance Committee is what caused the Grievance Committee to

recommend that it suspend Malkan’s grievance pending the conclusion of his other litigation.




13

The distinction between Malkan’s claims against Mutua and Ewing and the lack of

substantial overlap in witnesses establishes that separate trials would not waste judicial

resources.

CONCLUSION

Just two months ago, writing for a unanimous Supreme Court, Justice Sotomayor

observed:

Sworn testimony in judicial proceedings is a quintessential example of speech as a

citizen for a simple reason: Anyone who testifies in court bears an obligation, to

the court and society at large, to tell the truth. See, e.g., 18 U. S. C. §1623

(criminalizing false statements under oath in judicial proceedings); United States

v. Mandujano, 425 U. S. 564, 576 (1976) (plurality opinion) (“Perjured testimony

is an obvious and flagrant affront to the basic concept of judicial proceedings”).

When the person testifying is a public employee, he may bear separate obligations

to his employer—for example, an obligation not to show up to court dressed in an

unprofessional manner. But any such obligations as an employee are distinct and

independent from the obligation, as a citizen, to speak the truth.

* * *

“Unlike speech in other contexts, testimony under oath has the formality and

gravity necessary to remind the witness that his or her statements will be the basis

for official governmental action, action that often affects the rights and liberties of

others. United States v. Alvarez, 567 U. S. ___, ___ (2012) (slip op., at 8–9)

(plurality opinion).”

Lane v. Franks, 134 S. Ct. 2369, 2379-2380, 573 U.S. ____ (June 19, 2014).

One would think that Justice Sotomayor’s admonition applies with particular force when

the public employee is the Dean of the only state law school in New York. False testimony

stains the legal process and the judicial system. It strips legal institutions of their integrity and

undermines their standing in the community by inhibiting their capacity to render justice. False

testimony by one co-defendant unnecessarily bears the potential to prejudice his co-defendant

and deprive him of the opportunity to fairly and truthfully offer his own defense. Defendant




14

Ewing should not be compelled to assume the risk that a reasonable jury will: (1) readily

conclude that Mutua, his co-defendant and the Dean of a Law School, has twice offered false

testimony under oath against the interests of the plaintiff in the current action; and (2) thereafter

give Ewing’s defense less weight than it deserves because of his previous close working

relationship with Mutua at the Law School.

Therefore, for the reasons set forth above, Charles P. Ewing respectfully requests that this

Court grant his Motion for Separate Trials and order that Malkan’s claims against Mutua be tried

separately.

Dated: Buffalo, New YorkAugust 13, 2014 s/ Randolph C. Oppenheimer

Randolph C. Oppenheimer, Esq.

Abigail D. Flynn-Kozara, Esq.

DAMON MOREY LLP

The Avant Building – Suite 1200200 Delaware Avenue

Buffalo, New York 14202-2150

Telephone: (716) 856-5500

Attorneys for Defendant, Charles P. Ewing

Doc #1950231.1




4. Transcript of Dean Mutua’s perjured

testimony before PERB on March 31, 2010 and

April 1, 2010, and repeated at a deposition held

under the auspices of the WDNY on December 19,

2013.
















































































































































































































5. Correspondence with ALJ Kenneth S. Carlson

of PERB, dated November 22 and November 30,

2011, attempting, unsuccessfully, to report Dean

Mutua’s perjury.





November 22, 2011

Hon Kenneth S. Carlson

Public Employment Relations Board

80 Wolf Road, Suite 500Albany, New York 12205

Re: PERB U-28826 UUP v. State of New York

(State University of New York at Buffalo)

Dear Judge Carlson,

I believe it is necessary for me to inform you that Makau Mutua committed perjury in your courtroom

on March 31 and April 1, 2010. As a consequence, I believe that I have been the victim not only of a

serious injustice, but of a crime as well.

I have already provided Ms. Vance with the information upon which I base this allegation, and I am

sharing it with you in the form of my letter to her.

I should explain that I was not in a position to respond to Dean Mutua’s perjury on the day of the trial

because he had personal knowledge about the vote taken by the P&T Committee on April 28, 2006,

while I, of course, was not present at that meeting. Subsequently, I investigated the facts on my own

d fi d h t I h d b t ld b D Ol t th ti th t th f lt h d i d d d

Documents

Letter to AAG Re Rule 11 10-18-2014