Tuesday, February 17, 2009

Where is Derrick Gillenwater's January transcript before Judge Linda Giles in Gillenwater v. Denner et al, Suffolk 05-5469?

Ever since Judge Diane Moriarty (above) tried to give Justice a fair shake in Derrick Gillenwater's criminal case that preceded his valid Legal Malpractice claim against Jeffrey Denner and Kevin Barron (Suffolk 05-5469), things have not gone fairly for him. This has been noted by the Harvard Law School Berkman Center's Citizen Media Law Project. They wrote that basic court orders were Unconstitutional because of Prior Restraint concerns as levied against Plaintiff Gillenwater for no lawful reason.

I wonder what it does for the morale over at Denner-Pellegrino to know that their boss is benefactor of this unfair system that has taken away one of their former client's basic First Amendment Rights to file pleadings and to blog about or even discuss his case publicly. They probably just don't give a damn, just keep the shareholders happy and try to keep Mr. Gillenwater beat down.

Anyway, I want to know what's going on with that transcript from a January hearing he had with Judge Linda Giles. I got an email a while back from the law students where Mr. Gillenwater had claimed she even told him he needed permission from another judge to get a transcript from her own courtroom after she allegedly made biased statements to Mr. Gillenwater. Read about that here.

Now all of that is going to get even more interesting because I just received a link to Mr. Gillenwater's MySpace music page, and his material is quite good. The title track "Da Mack is what they call me" is in fact autobiographical and speaks about this case. I understand there is going to be a set of liner notes and some other multimedia program about all of this but I do not know if I will get access to more information on any of that before the CD comes out.

I wonder, will Attorney Denner actually have the nerve to move for an Emergency Restraining Order to silence his speech on that too, like the one he got against Mr. Gillenwater in the court before Judge Lauriat, as unlawfully upheld by Judge Spurlock as noted in this post (read the transcript of the Spurlock hearing; it's an insult to contemporary sensibilities on Justice). Coincidentally Denner met with Judge Lauriat yesterday in matters related to the Clark Rockefeller/Christian Karl Gerhartsreiter post.

Judge Lauriat and Judge Spurlock and Judge Giles have all violated Derrick Gillenwater's Fundamental and First Amendment Rights, and frankly I hope he exposes all of it through his music and whatever other channels he can use.

4 comments:

opencourts said...

The suspense is killing me. We've already seen Judge Spurlock say some things that just didn't make any sense in his courtroom transcript.

But everything I've been hearing about Judge Giles transcript would make it even worse than Spurlock's far worse.

Worse enough that she could be removed for unlawful bias.

And if that happens then the case will be on its fourth (4th) judge in recent history, with absolutely no shade of accountability for any of them.

They each just screw Mr. Gillenwater, then pass him on to the next, I guess it ain't easy pimpin' but these Judges and Attorney Denner seem to have it down pat.

opencourts said...

I guess on reflection Mr. Gillenwater's only recourse would be to Petition the Court of Appeals or the High Court in Mandamus for a copy of the transcript because he has a clear legal right to it and the Court has the authority to order it.

-Boston Bob

opencourts said...

You see, GL 211 3, 4, 4A appear to grant authority for the High Court to issue the Mandamus.

However, there is an older case that is not exactly on point that says Mr. Gillenwater has to go to the lower court with a simple Motion.

But remember, Mr. Gillenwater has no right to file any Motions in the lower court, and Judge Giles still has not taken any action on the order that was sent down to her "for further action" on Mr. Gillenwater's Right to file a Motion to Compel and a Motion for Summary Judgment.

***********


326 Mass. 390, 94 N.E.2d 781

Supreme Judicial Court of Massachusetts, Hampden.
ROYAL TOOL & GAUGE CORP.
v.
CLERK OF COURTS FOR HAMPDEN COUNTY.
Argued Sept. 21, 1950.
Decided Nov. 3, 1950.

Petition by the Royal Tool & Gauge Corporation against the Clerk of the Courts for the County of Hampden, for a writ of mandamus to compel the clerk to prepare the record of petitioner's appeal in a suit in equity in Superior Court brought by it against one Gustafson and others. Petitioner appealed to the full court from a judgment dismissing its petition entered by order of Wilkins, J. The Supreme Judicial Court, Qua, C. J., held that where the evidence established that petitioner had lost all right to appeal case, petitioner could not compel clerk of court in a mandamus proceeding to prepare any appeal record therein, with or without transcript.

Affirmed.


West Headnotes

[1] Headnote Citing References KeyCite Citing References for this Headnote

Key30 Appeal and Error
Key30VII Transfer of Cause
Key30VII(C) Payment of Fees or Costs, and Bonds or Other Securities
Key30k371 k. Payment of Costs or Fees for Transcript or Return. Most Cited Cases

The cost of printing the evidence heard by a master which was not part of record on appeal in equity suit could not properly be included in the clerk's estimate of expense. G.L.(Ter.Ed.) c. 231, § 135, as amended.

[2] Headnote Citing References KeyCite Citing References for this Headnote

Key30 Appeal and Error
Key30X Record
Key30X(D) Contents, Making, and Settlement of Case or Statement of Facts
Key30k571 k. Proceedings to Compel Settlement and Signing. Most Cited Cases

Where petitioner's appeal was dismissed in trial court on failure to prosecute seasonably and Supreme Judicial Court upon petition also dismissed appeal, petitioner lost all right to appeal and could not in subsequent mandamus proceeding compel clerk of trial court to prepare an appeal record. G.L. (Ter.Ed.) c. 211, § 11, as amended by St.1933, c. 300, § 1; c. 231, § 133, as amended by St.1933, c. 300, § 2; § 135, as amended.

[3] Headnote Citing References KeyCite Citing References for this Headnote

Key30 Appeal and Error
Key30X Record
Key30X(D) Contents, Making, and Settlement of Case or Statement of Facts
Key30k571 k. Proceedings to Compel Settlement and Signing. Most Cited Cases

An appellant's remedy for failure of clerk to prepare record in a pending case in accordance with law was by a simple motion in court in which case was pending for direction to the clerk to take the proper steps and not by independent petition for a writ of mandamus.

*390 **781 Gerson Askinas, Springfield, for petitioner.

George H. Mason, Worcester, for respondent.


QUA, Chief Justice.
This is a petition for a writ of mandamus brought in this court. The petitioner appeals to the full court from a judgment dismissing its petition, entered by order of a single justice. The object of the petition is to compel the clerk to prepare the record of the petitioner's appeal in a suit in equity in the Superior Court brought by it against one Gustafson and others without printing a transcript of evidence taken before a master in that cause but never presented in the form of a transcript to the master *391 or to the judge of the Superior **782 Court, and without including the cost of printing such a transcript in his estimate of the expense under G.L. (Ter.Ed.) c. 231, § 135, as amended.

[1] Headnote Citing References Unless the judge of the Superior Court ordered the master to report the evidence heard by him, which on the face of the record in the case now before us seems highly unlikely, the evidence heard by the master was not part of the record on appeal in the equity suit, and the cost of printing it could not properly be included in the clerk's estimate of expense under the statute. Lindsay v. Swift, 230 Mass. 407, 409, 119 N.E. 787. Narragansett Amusement Co. v. Riverside Park Amusement Co. 260 Mass. 265, 282, 157 N.E. 532. Joyner v. Lenox Savings Bank, 322 Mass. 46, 57-58, 76 N.E.2d 169. Lowell Gas Co. v. Department of Public Utilities, 324 Mass. 80, 91, 84 N.E.2d 811. And it does not appear that there was compliance with Rule 90 of the Superior Court (1932), which makes provision for a report of a summary of the evidence in certain circumstances. New England Factors, Inc. v. Genstil, 322 Mass. 36, 43-44, 76 N.E.2d 151. See Minot v. Minot, 319 Mass. 253, 259-260, 66 N.E.2d 5.

[2] Headnote Citing References But even if the clerk wrongly insisted upon printing the evidence, this is now immaterial, since facts found by the single justice of this court in the present mandamus proceeding show that the petitioner, (plaintiff in the equity suit) has long since lost its appeal in that suit altogether and cannot now compel the clerk to prepare any appeal record therein, with or without the transcript. On February 3, 1949, the clerk notified the petitioner (plaintiff in the equity suit) of the amount of the clerk's estimate, which included the item for printing the transcript. Instead of paying the amount of this estimate within the period of twenty days allowed by section 135, the petitioner (then plaintiff) on February 24, which was the twenty-first day, filed (1) a motion ‘to delay payment of printing costs' and (2) a motion ‘to delete transcript.’ On March 4 it filed (3) a ‘motion to delete notice of estimate.’ On April 20 one of the defendants in the equity suit filed a motion to dismiss the petitioner's (plaintiff's) appeal. On November 21 the three motions of the petitioner (plaintiff) were denied and *392 the petitioner's (plaintiff's) appeal was dismissed for failure to prosecute it seasonably. Thereafter, by reason of the provisions of the second sentence of G.L.(Ter.Ed.) c. 231, § 133, as amended by St.1933, c. 300, § 2, the sole remedy of the petitioner was by petition to this court under G.L.(Ter.Ed.) c. 211, § 11, as appearing in St.1933, c. 300, § 1. Moskow v. Murphy, 310 Mass. 249, 251, 37 N.E.2d 486. See Hubbard v. Southbridge National Bank, 297 Mass. 17, 20, 8 N.E.2d 351. Such a petition was presented to this court and on December 12, 1949, was dismissed for reasons which this court deemed sufficient. This ended all right of the petitioner to appeal.

[3] Headnote Citing References Even if the petitioner's right of appeal had not been lost, it would seem that the petitioner's remedy for any failure of the clerk to prepare the record in a pending case in accordance with the law would have been by simple motion in the court in which the case was pending for a direction to the clerk to take the proper steps and not by an independent petition for a writ of mandamus. Cambridge Savings Bank v. Clerk of Courts for County of Hampden, 243 Mass. 424, 137 N.E. 872. Morey & Co., Inc., v. Sweeney, 287 Mass. 210, 213-214, 191 N.E. 389. Compare Thomson v. Sleeper, 168 Mass. 373, 376-377, 47 N.E. 106. Such a motion could have been accompanied, if necessary, by a motion to extend the time for paying the amount of the clerk's estimate, but it would have been necessary to procure allowance of the motion to extend before the expiration of the twenty days. See Buchannan v. Meisner, 279 Mass. 457, 460-462, 181 N.E. 742; Stanwood v. Adams Garage, Inc., 281 Mass. 452, 183 N.E. 846; Flood v. Grinnell, 286 Mass. 214, 189 N.E. 833.

Judgment affirmed.

Mass. 1950
ROYAL TOOL & GAUGE CORP. v. CLERK OF COURTS
326 Mass. 390, 94 N.E.2d 781

END OF DOCUMENT

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