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NORTH CAROLINA BEFORE THE DISCIPLINARY HEARING COMMISSION OF THE NORTH CAROLINA STATE BAR COUNTY OF WAKE 09 DHC 9 THE NORTH CAROLINA STATE BAR, Plaintiff, -vs- ELIZABETH J. WOLFENDEN, Attorney, Defendant. ------------------------------------ Raleigh, North Carolina January 29, 2010 9:00 a.m. - - - - - - - - DEPOSITION OF ELIZABETH J. WOLFENDEN - - - - - - - - Reported by: Amy L. Poythress, CVR

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A P P E A R A N C E S Appearing on Behalf of the Plaintiff: CARMEN HOYME BANNON, ESQ. Deputy Counsel The North Carolina State Bar 208 Fayetteville Street (27601) Post Office Box 25908 (27611) Raleigh, North Carolina Appearing on behalf of the Defendant: CRUMPLER FREEDMAN PARKER & WITT, by DAVID B. FREEDMAN, ESQ. DUDLEY A. WITT, ESQ. 301 N. Main Street, Suite 700 Winston-Salem, North Carolina 27101 Also Present: Becky Carroll - - - - - - - -

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T A B L E O F C O N T E N T S E X A M I N A T I O N S WITNESS EXAMINATION PAGE-LINE ELIZABETH J. WOLFENDEN By Ms. Bannon 9-6 - - - - - - - - E X H I B I T S NUMBER 1ST REFERENCE PAGE-LINE [Original exhibits retained by Ms. Bannon; exhibit copies provided to Mr. Witt at deposition; court reporter retained witness' copy of exhibits to be attached to sealed original transcript.] Exhibit No. 101 5 July 2007 Notice of 16-22 Demand from Watson to Klein Exhibit No. 102 16 August 2007 Notice of 17-7 Demand from Meier to Klein Exhibit No. 202 10 March 2008 fax from 37-2 J. Buckner to E. Wolfenden & Long Exhibit No. 205 13 March 2008 e-mail from 34-15 Wolfenden to J. Walker, attaching exchange between Wolfenden and Taibi Exhibit No. 207 14 April 2008 letter from 19-22 J. Bucker to Wolfenden Exhibit No. 208 18 April 2008 letter from 19-22 Wolfenden to J. Buckner Exhibit No. 212 2 June 2008 letter from 47-25 Wolfenden to J. Buckner Exhibit No. 213 10 June 2008 letter from 47-25 Wolfenden to J. Buckner

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T A B L E O F C O N T E N T S E X H I B I T S NUMBER 1ST REFERENCED PAGE-LINE Exhibit No. 215 24 August 2008 e-mail from 22-13 Wolfenden, as published in the Raleigh Telegram Exhibit No. 301 13 March 2008 faxed letter 34-24 from Office of District Court Judges to Wolfenden, Long & J. Walker Exhibit No. 302 7 April 2008 partial 33-8 transcript of Orange County District Court calendar call Exhibit No. 303 8 April 2008 e-mail from 46-19 Wolfenden to Long Exhibit No. 308 1 August 2008 Wolfenden 74-17 response to Letter of Notice in Grievance file 08G0634 Exhibit No. 408 29 August 2006 e-mail 106-3 exchange between Crews and Wolfenden Exhibit No. 412 Invoice for Legal Services 107-7 Exhibit No. 501 13 May 2008 e-mail from 114-14 betsy@betsyforjudge.com re: I need your support Exhibit No. 502 13 May 2008 e-mail from 115-14 betsy@betsyforjudge.com re: Attachments Exhibit No. 503 Attachment #1, with print 115-24 setting as "Document and Markups" Exhibit No. 504 Attachment #1, with print 117-25 setting as "Document"

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T A B L E O F C O N T E N T S E X H I B I T S NUMBER 1ST REFERENCED PAGE-LINE Exhibit No. 505 Attachment #2, with 118-16 print setting as "Document and Markups" Exhibit No. 602 8 October 2008 letter 120-3 from Wolfenden to Peek & Davis Exhibit No. 702 Transcript of 132-3 11 March 2009 hearing in Bohannon & Branch v. McManaway, 06 CVD 1810 & 03 CVD 2113 Exhibit No. 801 7 March 2008 e-mail 173-2 exchange between Wolfenden and McGirt Exhibit No. 802 3 June 2008 Wolfenden 166-9 complaint to Grievance Committee Exhibit No. 804 23 September 2008 letter 167-13 from State Bar to Wolfenden re: dismissal of file 08G0724 Exhibit No. 805 2 December 2008 164-5 Amended Complaint, McManaway v. LDS Family Svcs, et al, 08 CVS 1711 Exhibit No. 812 29 April 2009 Complaint, 176-7 McManaway v. Long et al, 09 CVS 686 Exhibit No. 910 Transcript 23 March 2009 204-17 hearing, Lyons v. Lyons, 07 CVD 1260 Exhibit No. 911 8 April 2009 letter 210-1 Wolfenden to J. Scarlett

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T A B L E O F C O N T E N T S E X H I B I T S NUMBER 1ST REFERENCED PAGE-LINE Exhibit No. 915 27 May 2009 198-13 Wolfenden Affidavit Exhibit No. 1002 22 June 2009 Order, 256-7 Harrington v. Wall, 09 CVD 27 Exhibit No. 1003 25 June 2009 Verified 246-1 Motion to Recuse Exhibit No. 1007 25 August 2009 Motion 258-11 to Compel Exhibit No. 1013 29 August 2008 Subpoenas, 265-25 J. Anderson & J. Buckner Exhibit No. 1014 12 September 2008 265-25 Motion to Quash Exhibit No. 2002 30 July 2008 268-1 Verified Motion to Recuse In Re: HDF, HC & AF, 07 JA 166, 167 & 168 Exhibit No. 2003 30 July 2008 Verified 268-1 Motion to Recuse, Klein v. Klein, 05 CVD 1311 Exhibit No. 2004 30 July 2008 Verified 268-1 Motion to Recuse, Klein v. Glasser, 05 CVD 2498A - - - - - - - - Quoted material is verbatim and may/may not reflect a direct quote. - - - - - - - - Proper nouns may be spelled phonetically - - - - - - - -

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S T I P U L A T I O N S It is hereby stipulated and agreed between the parties to this action, through their respective counsel of record: 1. The deposition of ELIZABETH J. WOLFENDEN, may be taken on January 29, 2010, beginning at 9:17 a.m. in the offices of The North Carolina State Bar, located at 208 Fayetteville Street, Raleigh, North Carolina 27601, before Amy L. Poythress, a Verbatim Court Reporter and Notary Public. 2. Said deposition shall be taken for the purpose of discovery or for use as evidence in the above-entitled action, or for both purposes. 3. Any objections of any party hereto as to notice of the taking of said deposition or as to the time or place thereof, or as to the competency of the person before whom the same shall be taken are deemed to have been met. 4. The North Carolina Rules of Civil Procedure shall control the taking of said deposition and the use thereof in court. 5. Objections to questions and motions to strike answers need not be made during the taking of this deposition but may be made for the first time during the progress of the trial of this case or at any

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pretrial hearing held before any disciplinary hearing panel for the purpose of ruling thereon, or at any other hearing of said case at which said deposition might be used, except that an objection as to the form of a question must be made at the time such question is asked or objection is waived as to the form of the question. 6. The original of this deposition will be sealed in an envelope and mailed first-class postage or hand-delivered to the party taking the deposition for preservation and delivery to the court if and when necessary. 7. The deponent reserves the right to examine and sign the deposition prior to filing. - - - - - - - -

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1 P R O C E E D I N G

2 Whereupon,

3 ELIZABETH J. WOLFENDEN

4 having first been duly sworn, was examined and

5 testified as follows:

6 DIRECT EXAMINATION

7 BY MS. BANNON:

8 Q We're here in the matter of The North

9 Carolina State Bar versus Elizabeth

10 Wolfenden, 09 DHC 9.

11 My name is Carmen Bannon. I'm here

12 on behalf of the State Bar. Attorneys David

13 Freedman and Dudley Witt are here on behalf

14 of defendant Elizabeth Wolfenden.

15 Ms. Wolfenden, let's just start out

16 with the usual. If you would state your name.

17 A Elizabeth J. Wolfenden.

18 Q You understand that you're answering

19 questions today under oath?

20 A I do understand.

21 Q And if you can't hear my question,

22 you should ask me to repeat it?

23 A Shall do.

24 Q And you understand that if you have

25 trouble understanding my question, you should

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1 ask me to rephrase it?

2 A I will.

3 Q Are you aware of any condition that

4 would impair your ability to hear or

5 understand me today?

6 A None that I know of.

7 Q Tell me about how you got into the

8 legal profession. Where did you go to law

9 school?

10 A UNC.

11 Q When did you attend?

12 A I began UNC Law School as a 1L in

13 1996, and I graduated -- I think ended up

14 taking a class in summer school. I didn't

15 graduate with my class. I graduated a few

16 months later in July. I needed one last

17 class.

18 Q Was that '99 or --

19 A Yes, that would have been '99.

20 Q And when were you admitted to the

21 Bar?

22 A 2000.

23 Q Since then, what kind of law have you

24 practiced?

25 A I have practiced family law

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1 predominately in Orange, Durham and Wake

2 Counties, Alamance as well. Since 2006, I

3 have been assigned counsel for the Office of

4 the Appellate Defender, and I practice -- I

5 represent indigent criminal defendants and I

6 represent indigent parents; and those

7 appeals, of course, come to me from every

8 county in the State of North Carolina.

9 And some of that appellate work I've

10 actually gone into various courtrooms and done

11 some work as well and -- let me try to get

12 the years straight -- for a few years I was

13 on the misdemeanor list in both Durham and

14 Orange County representing criminal defendants

15 in traffic and misdemeanor matters.

16 Q You said your practice had been

17 primarily family law. Is it still?

18 A No, not by any means. At this point

19 in time it's primarily appellate.

20 Q And have you worked as a solo

21 practitioner or with firms?

22 A I passed the Bar in, let's see --

23 July of 2000, I think. I think I was

24 licensed in August of 2000.

25 As soon as I became licensed, I had

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1 one job interview with Susan Lewis, the law

2 firm of Lewis and Anderson, and I was hired.

3 So I worked with Susan for two years and then

4 I decided to resign, and I did. I went

5 across town and ended up working for Lunsford

6 Long, and I worked for him for five months

7 before I resigned from that position. That's

8 when I went out on my own.

9 Q I think we can just dive in and

10 start looking at some of the Complaint and

11 the Answer here. As I said before, I just

12 want to make sure we know what facts we have

13 in dispute for hearing.

14 So on the First Claim for Relief, it

15 involved your representation of Kathryn Klein

16 and your fee agreement with her.

17 A Uh-huh (yes).

18 Q I'm looking at Paragraph 6 --

19 A Okay.

20 Q -- which has to do with Ms. Klein's

21 informed consent and the advice you gave her

22 about your fee agreement.

23 A Uh-huh (yes).

24 Q And I'm trying to understand -- your

25 answer to Paragraph 6 seems to actually be

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1 responsive to Paragraph 7. So I can't tell

2 whether Paragraph 6 is admitted or denied.

3 A Is that a question?

4 Q Yes. Is Paragraph 6 admitted or

5 denied?

6 A Is Paragraph 6 admitted or --

7 [Witness Views Document] -- I'm not quite

8 sure I'm understanding why you think the

9 answer to six and is not the admission to six.

10 Q Because the answer says that you

11 "did not advise Klein in writing of the

12 desirability of seeking the advice of

13 independent legal counsel."

14 A Uh-huh (yes).

15 Q And that is at issue here, but that

16 is at issue in the allegation in Paragraph 7.

17 So I guess my question is, before she

18 executed that deed of trust, did Ms. Klein

19 give her informed consent in a separate

20 writing that she signed to the essential

21 terms of that transaction?

22 A I do not have a separate writing

23 from Ms. Klein.

24 Q Did she give informed consent in any

25 writing to your role in the transaction

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1 whereby you acquired that deed of trust?

2 A If I can just explain how this came

3 about. Is that okay?

4 Q Sure.

5 A During the time that I had worked

6 for Susan Lewis, Susan had -- I don't want to

7 say frequently, but from time to time had

8 taken a promissory note secured by a deed of

9 trust in various cases. So I certainly was

10 aware that the concept was available.

11 And so after I went out on my own, I

12 want to say probably in -- it could have been

13 actually the year that I did this, which I

14 think was 2006. We have a local Family Bar

15 in Orange County and we were all sitting

16 around -- we meet once a month for lunch,

17 talking about how difficult it was in Orange

18 County to represent women who had no marital

19 assets, no way of paying for their legal fees

20 because the domestic cases unfortunately in

21 Orange County have a tendency to drag out,

22 like Ms. Klein's, for years and years.

23 So the kind of -- our leader of the

24 Orange County Family Bar, Donna Davis, asked

25 myself and another attorney, Andrea Morales

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1 Winters, to investigate this whole concept of

2 doing this, and to report back kind of in a

3 little informal continuing legal education

4 class.

5 So we divided up the roles, who was

6 going to do what. And Andrea decided that

7 she was going to investigate the professional

8 rules and report back to the little group

9 what the requirements were. And my job was

10 to confer with two local real estate

11 attorneys to discuss the paperwork that needs

12 to be done, et cetera.

13 So we came back and we gave our

14 speech and there was some discussion about

15 doing this, and I conveyed the information

16 that I had gotten, Andrea conveyed her

17 information, and there was no discussion about

18 the need for advising our clients who have no

19 money -- I mean, that is the reason why we

20 were doing this, is that they have no money.

21 And so they have no money to retain attorneys.

22 So anyway, she did her part, I did

23 mine; there was no discussion about the need

24 to tell -- it's usually women -- that when

25 they come to us and say, "I don't have a

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1 penny for my legal fees," and that we're

2 proposing to them some sort of alternative

3 that we knew was permitted under the

4 professional rules, there was no discussion at

5 that point in time that, "Oh, and by the way,

6 you have to send these women who have no

7 money whatsoever to another attorney to get

8 some sort of informed consent in writing."

9 So that's why I did not do it, and I

10 did not do it, and I admit that I did not do

11 it.

12 Q All right. I'm looking at -- next

13 I'm looking at Paragraphs 8 and 9, and I

14 understand that they are denied for lack of

15 sufficient information. I just want to see

16 if some of the documents that we have are --

17 provide enough information for you to respond

18 to these.

19 A Uh-huh (yes).

20 Q Paragraph 8 is talking about a Notice

21 of Demand. If you'll look at Exhibit 101.

22 A Uh-huh (yes).

23 Q Does this appear to be a Notice of

24 Demand from the substitute trustee to Ms.

25 Klein?

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1 A That is correct. I mean, it appears

2 to be that. I never saw this before it was

3 sent, but --

4 Q Have you seen it since then?

5 A No, I have not. This is the first

6 time I've ever seen this.

7 Q And if you look at Exhibit 102, does

8 this appear to be a Notice of Demand from

9 Daniel Meier to Ms. Klein?

10 A Yes.

11 Q And it's dated August 2007?

12 A Yes.

13 Q Have you seen this document before?

14 A I never saw it when Dan sent it. I

15 saw it later when -- I'm trying to remember

16 when I saw it. If it was before or after the

17 Bar filed the formal complaint against me.

18 Yeah, I think I saw this when Tony

19 Taibi, Anthony Taibi, who was one of William

20 Klein's attorneys, filed a lawsuit against

21 Kathy and myself, which he then ended up

22 dismissing. And at the time he filed the

23 lawsuit I went to Dan to clarify some of the

24 allegations in the lawsuit.

25 And I think in the lawsuit Anthony

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1 Taibi had mentioned this letter. And I asked

2 Dan to send me a copy. Or I asked Dan for

3 the affidavit. I know that Dan has provided

4 an affidavit, and maybe when he gave me the

5 affidavit, for the first time I saw the

6 letter.

7 Q Do Exhibits 101 and 102 provide you

8 the sufficient information to admit those two

9 paragraphs we were just talking about in the

10 complaint?

11 MR. WITT: Which two paragraphs?

12 A Right. Which two paragraphs?

13 Q I'm sorry, yeah. Paragraph 8 and

14 Paragraph 9.

15 A Okay. Hold on. [Witness Views

16 Document] I think the answer is yes, but let

17 me just double check. [Witness Views

18 Document] Yes.

19 Q Am I correct that the foreclosure

20 petition that was instituted in 2007 was

21 dismissed?

22 A Yes. Oh, you know what? I mean,

23 yeah. Yes. The reason I'm hesitating is

24 because I don't really remember how that

25 happened. Or who did that.

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1 Q Okay. But it was dismissed.

2 A Yeah, obviously, it was.

3 Q And did you at any time later

4 reinstitute foreclosure proceedings against

5 Ms. Klein on that deed of trust?

6 A I have not yet.

7 Q How were you paid for your

8 representation of Ms. Klein?

9 A She did not pay me.

10 Q Is that deed of trust still of record

11 in Orange County?

12 A Yes, absolutely.

13 Q I'm done with the First Claim.

14 Moving on to the Second Claim, Paragraph 15

15 discusses a letter dated April 18th, 2008,

16 that you wrote to Judge Buckner.

17 A Uh-huh (yes).

18 Q And I just want to make sure, your

19 response refers to letters and states that

20 they speak for themselves. I want to make

21 sure we're referring to the same letters.

22 So if you would look at Exhibit 207

23 and 208 and tell me whether those are the

24 letters you're referring to in your answer.

25 A [Witness Views Document] I'm a little

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1 confused. This is an April 14th letter, and

2 where is this referenced under the Second

3 Claim for Relief? You mean my April 18th

4 letter?

5 Q In your answer. It says, "It is

6 admitted that the defendant wrote a letter

7 dated April 18th" --

8 A Yeah, I've got it.

9 Q -- "in response to a letter received

10 from Judge Buckner dated April 14th." So I

11 want to make sure that I understand which two

12 letters you're referring to in your answer.

13 A I assume that is it. I don't

14 remember receiving two letters from him that

15 day so, yeah.

16 Q In Paragraph 17 of the complaint it is

17 alleged that you "repeated the allegation of

18 improper ex parte communications by the Chief

19 District Court Judge in several different

20 public formats." You've admitted that; I was

21 just wondering which public formats you recall

22 having repeated that allegation in.

23 A I recall having repeated that most

24 recently to the Court of Appeals in the brief

25 that I filed on behalf of my client Emily

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1 McManaway, and that was the case that was

2 heard on oral arguments on Wednesday.

3 In that brief I brought to the Court

4 of Appeals' attention that Judge Buckner had

5 appeared to have made an attempt to prevent

6 the brief from going forward -- or prevent

7 the appeal of going forward or, at the very

8 least, prevent the Court of Appeals from

9 being able to review his misconduct.

10 And the way that he did that was

11 that after I had perfected the appeal and had

12 filed and served the Record on Appeal on the

13 appellees and the Court of Appeals, opposing

14 counsel Leigh Peek filed a document in Orange

15 County District Court asking that 80 pages

16 from the record be removed.

17 And without giving me any notice

18 whatsoever, Judge Buckner held an ex parte

19 hearing with Leigh Peek and granted her

20 request.

21 So that would be the most recent time

22 that -- what I ended up doing was just filing

23 a notice of appeal from that order that he

24 entered, and the appeal obviously moved

25 forward and then culminated on Wednesday in

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1 the oral arguments. But that is the most

2 recent public occasion or that I brought to

3 someone's attention that he does engage in ex

4 parte communications.

5 I know another occasion was during

6 the time that I was running for judge. I

7 believe in the letter that I had sent to the

8 Raleigh Telegram that there was also an

9 allegation in there that he engaged in ex

10 parte communications in the Klein case.

11 Q Is that letter that you just

12 mentioned, is that Exhibit 215?

13 A [Witness Views Document] Yeah, that

14 is. But let me take a moment to see if I do

15 in fact say that he engaged in ex parte

16 communications. [Witness Views Document]

17 I actually don't see that, I mean,

18 in here. I certainly do accuse him of a

19 pattern of persistent misconduct, but I could

20 take some time and read it more carefully,

21 but I don't see the phrase "ex parte" in here.

22 Q When you say, "My client has alleged

23 that Judge Buckner engaged in cronyism and

24 illegal out-of-court communications with

25 opposing counsel" --

23

1 A Oh. I would say that fits the bill.

2 Q What basis did your client have for

3 making that allegation?

4 A The basis that my client had for

5 making that allegation was that we had a

6 court hearing in that case and that -- this

7 would have been the Klein matter, I believe,

8 and during the three years that I had

9 represented Ms. Klein I had attempted to get

10 a court hearing. I think in the file, if I'm

11 not mistaken, there's either 23 or 27 notices

12 of hearing. And at every hearing Lunsford

13 had stood up and given some excuse why the

14 case could not be heard.

15 I was finally, after three or four

16 years, we were able to get into court and we

17 had a hearing, it wasn't that long, and I was

18 there with my legal assistant, and actually my

19 daughter, at the time.

20 And Judge Buckner gave some

21 indication of how he was going to rule. And

22 when we were walking out of the courthouse I

23 could tell by looking at Lunsford's face that

24 he was very distressed because it did not

25 appear that the ruling was going to go his

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1 way.

2 So we were all just standing there

3 and he said, in front of everybody, "Where

4 did Judge Buckner go?" And the bailiff said,

5 "He went upstairs to his office."

6 And Lunsford went up to Judge

7 Buckner's office, and two days later Judge

8 Buckner issued a ruling that was completely

9 contradictory to how he had said that he was

10 going to rule in the courtroom.

11 Q In what way was the order as

12 announced in court not -- how was that not

13 going Lunsford way?

14 A I can't even remember, it's been so

15 long and I've had a gazillion cases since this

16 one, but -- I'd have to go back and talk to

17 my -- you know, look through my notes.

18 But I knew when we walked out of

19 there that, you know, I remember that -- you

20 know, we were high-fiving because we finally

21 thought we were making some headway in

22 Kathy's case, and then I was quite certain as

23 soon as Lunsford went upstairs -- Lunsford

24 has a bit of a history of communicating with

25 judges outside of the courtroom.

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1 When I was running against Judge

2 Coleman, Judge Coleman at one of his campaign

3 speeches talks about a case -- and this was

4 in public -- that he had had two attorneys,

5 Lunsford was one, I think Eddie Greene was

6 the other -- and he told the story how after

7 he ruled against Lunsford, Lunsford called him

8 that night at his house to discuss the ruling

9 with him.

10 So that's business as usual in

11 Orange County. I don't even really think

12 they know what they're doing, and I don't

13 think they view it as ex parte because it

14 happens all the time.

15 Q Would you contend it's improper for an

16 attorney to discuss a case with a judge after

17 a ruling has been issued?

18 A I would never do that.

19 Q Well, that wasn't my question. Do you

20 contend that it's improper --

21 A Yes.

22 Q -- ex parte communication?

23 A Yes.

24 Q What is your authority for that?

25 A I think it's never proper to discuss

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1 any case before or after a ruling if opposing

2 counsel is not present.

3 Q Can you cite to any rule that

4 provides that?

5 A No. Just seems ethical to me.

6 Q So going back to the Klein case, you

7 say that Lunsford Long appeared unhappy and

8 then he went upstairs.

9 A Uh-huh (yes).

10 Q Is there any other factual basis for

11 alleging that there was improper ex parte

12 communication between Mr. Long and Judge

13 Buckner?

14 A On this particular case, no. I

15 think that I've heard from other attorneys

16 that they are aware of other occasions when

17 Judge Buckner has engaged in ex parte

18 communications. I know one attorney told me

19 that he had been caught doing it.

20 Q Who was that other attorney?

21 A Her name is Donna Bennick, and Donna

22 told me that she had spoken to an attorney

23 who I believe works for UNC, and that in the

24 middle of the case -- I don't know if someone

25 had walked into chambers or what have you,

27

1 but they found Judge Buckner with opposing

2 counsel in that case discussing the case ex

3 parte.

4 And I was told that the attorney --

5 according to Donna -- was originally going to

6 go to the Judicial Standards Commission, but

7 that instead he ended up writing a letter to

8 Judge Buckner just telling him he was aware

9 of it and, you know, I'm sure asking him not

10 to do it.

11 Q How do you spell Donna's last name?

12 A B-e-n-n-i-c-k.

13 Q You don't have any firsthand

14 knowledge of that case?

15 A I do not.

16 Q Have any other attorneys indicated to

17 you that there's reason to believe Judge

18 Buckner engages in ex parte communications?

19 A I think it's common knowledge in

20 Orange County that he engages an ex parte

21 communications. He also in another case that

22 I had attempted to with me, in the courtroom,

23 but I just walked away.

24 Q What case was that? What happened?

25 A That was a case I had with Beth

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1 Posner on the other side. Beth is the

2 attorney for one of the UNC clinics.

3 I was representing a gentleman who

4 had a 50B brought against him. We had a

5 hearing in Chatham County. Judge Buckner

6 ended up ruling in my client's favor. He

7 probably should not have. He did not follow

8 the law. Beth knew he didn't follow the law.

9 I know he didn't follow the law. Beth filed

10 a Rule 60 motion.

11 I was in court in another courtroom

12 a week or so later and he saw me in the

13 courtroom and tried to come up and discuss

14 the Rule 60 motion with me, and I felt it was

15 highly inappropriate and I walked away.

16 Q What was your client's name in that

17 case?

18 A Stauffer is the last name,

19 S-t-a-u-f-f-e-r -- hold on. I'll have it for

20 you by the end -- it's not coming to me right

21 now.

22 Q That's okay if we don't have it.

23 A Jerry. Jerry Stauffer.

24 Q While we have Exhibit 215 in front

25 of us, I was looking --

29

1 A Oh, is this the letter?

2 Q Yes. At the bottom of Page 2, the

3 paragraph where it says, "Instead of

4 assigning an outside judge to hear my

5 client's claims of judicial misconduct, Judge

6 Buckner brought in another local judge who

7 dismissed all of my client's motions. Once my

8 client's motions alleging judicial misconduct

9 were dismissed, Judge Buckner stepped back

10 into the case."

11 A Uh-huh (yes).

12 Q Which case are we talking about there?

13 A This was the Chandler matter where

14 Judge Buckner lied in the courtroom. He told

15 my client that -- I was not there, so I think

16 that's important for me to note. I found

17 that out later. He told my client -- she

18 came in late with her previous counsel, that

19 because her attorney was late -- it was a

20 non-secure custody hearing in a 7B action,

21 that because her attorney was late he was not

22 going to hear the case. He was not going to

23 hear the case that day.

24 The reason it was a mistruth or it

25 was false, his statement, was that he had

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1 heard the case. He had heard the case

2 minutes before she walked into the courtroom,

3 and he actually entered an order. And the

4 attorney didn't know until about -- I'd have

5 to look back at my notes, but probably a

6 month later.

7 In 7B actions you have 30 days to

8 enter all the court orders. So 30 days later

9 she found out that Judge Buckner actually had

10 held the hearing, and that he had entered an

11 order, and that was not what he had told her.

12 And there were a number of attorneys present.

13 Q This is an instance where the

14 attorney came into the courtroom late,

15 correct?

16 A Yeah. Bobbie Baker.

17 Q And Judge Buckner -- and she started

18 indicating why she was late?

19 A That's correct.

20 Q And Judge Buckner said I'm not

21 hearing it?

22 A That's correct. And he had heard it

23 and he entered an order, and then they tried

24 to cover it up later by saying that -- I

25 can't remember how they tried to cover it up,

31

1 but it wasn't a very good cover-up because

2 whatever they said had really happened

3 obviously had not happened because it was not

4 in the court order.

5 Q So this is the Chandler case.

6 A Correct.

7 Q I'm trying to get some specifics on

8 what is in the paragraph I read from Exhibit

9 215. So Judge Buckner brought in another

10 local judge.

11 A Yeah.

12 Q So which judge was that?

13 A Judge Anderson.

14 Q And he dismissed -- what was the

15 nature of those motions?

16 A Oh, a Rule 59 motion to set aside

17 one of Judge Buckner's orders, pretty much

18 very similar to what was in front of the

19 Court of Appeals on Wednesday, asking Judge

20 Buckner to set aside orders that he enters

21 after he disregards litigants' due process

22 rights. So it was a Rule 59, a Rule 60,

23 probably a motion to recuse. I don't know

24 what else.

25 Q Those were dismissed. Did you appeal

32

1 from the dismissal of those motions?

2 A The case was ultimately appealed. I

3 ended up withdrawing. I had to. I really

4 had no choice. At some point I could not

5 effectively represent my client -- oh, I

6 know. I had to withdraw after Judge Anderson

7 brought the criminal contempt charge against

8 me. I felt that at that point the best thing

9 for me to do would be to withdraw. It was a

10 7B case, court-appointed counsel. She went

11 on with another court-appointed attorney and

12 the case was ultimately appealed to the Court

13 of Appeals and it was reversed.

14 Q Let's talk about the Third Claim for

15 Relief now.

16 A Uh-huh (yes).

17 Q The first allegation in that claim

18 has to do with your making a representation

19 that the Director of the Administrative Office

20 of the Courts had expressed an opinion about

21 the timing of the hearing of the Klein case.

22 A Not the timing.

23 Q Well, that the case of Klein "should

24 be heard within the month." Let's start with

25 that.

33

1 A Uh-huh (yes).

2 Q Do you admit or deny that you made

3 such a representation at the calendar call?

4 A I admit that I misspoke. I admit

5 that at calendar call -- I'm trying to

6 remember because it's been a while since I

7 read the transcript.

8 Q Do you want to look at Exhibit 302?

9 A That would be helpful. Thank you.

10 [Witness Views Document] Yes. I'm looking

11 at about two-thirds down the page where I

12 say, "Okay, I think there is some concern

13 coming down from the AOC judge, from Judge

14 Walker that this case should be heard this

15 month by a visiting judge." Obviously I made

16 that statement.

17 Q I understand that there was no

18 letter faxed to you from Judge Walker, is

19 that correct?

20 A What happened was, I faxed -- I

21 e-mailed to Judge Walker a letter and

22 explained to him everything that had gone on

23 in the case; that it had been impossible for

24 us to get a court hearing; that it had just

25 been impossible for us to make any headway

34

1 with Judge Buckner and Lunsford Long.

2 I e-mailed the letter to him, to his

3 assistant I want to say around 10:00 in the

4 morning.

5 If I'm not mistaken, that same day

6 around 2:00 I think in the afternoon, I

7 received a communication in my office that

8 had Judge Walker's name on it, and that

9 communication said that that case was going

10 back on the April calendar. So --

11 Q If I may --

12 A Yeah.

13 Q -- just so we're on the same page --

14 A Go right ahead.

15 Q -- do you want to look at Exhibit

16 205 and see if that is the e-mail to Judge

17 Walker that you were just talking about?

18 A Uh-huh (yes). [Witness Views

19 Document]

20 MR. WITT: Do you mean 305?

21 MS. BANNON: No, I mean 205.

22 I'm going back the other way.

23 A [Witness Views Document] Yes.

24 Q And then if you look at Exhibit 301,

25 is that the document you said you received in

35

1 your office after you had sent that e-mail

2 which is Exhibit 205?

3 A Yeah. Let me just see if the time

4 -- wait, can you do me a favor? I just want

5 to see if I'm right when I say it happened

6 the same day. [Witness Views Documents]

7 Okay. This was March 13th. What date was

8 that?

9 Right. Exactly -- yes. Yes, I

10 remember this coming in. My paralegal -- I

11 didn't take a long look at it, I will be

12 honest, but my paralegal said, "We got

13 something from the courthouse. Yay!" you

14 know, "It was good you sent the e-mail," was

15 our thinking, "We are going to get some

16 relief for our client."

17 I remember seeing Ralph Walker's name

18 at the bottom, of course was thrilled that he

19 had acted so promptly in response to my

20 e-mail, and was very excited that we were

21 going back into court in April to get,

22 finally, a court date for Ms. Klein.

23 Q What about this letter made you think

24 that Judge Walker had taken prompt action?

25 A There would have been absolutely no

36

1 reason for Mindy Harris to put Judge Walker's

2 name on this letter unless it was in response

3 to a communication from Judge Walker.

4 Q Hadn't you already had discussions

5 about getting a visiting judge to hear this

6 case?

7 A That I can't remember.

8 Q If you had such discussions before

9 March 13th --

10 A Well, I think, if I'm not mistaken,

11 didn't we just look at a letter dated March

12 14th, and if you will take your attention to

13 that letter, that letter was from Judge

14 Buckner to me, and that I believe was the

15 first time getting a visiting judge was

16 referenced, and that would have been after my

17 e-mail to Judge Walker.

18 Q Well, I'm not sure which letter you

19 are talking about.

20 A Well, we can -- I might be wrong. I

21 thought it was April 14th. Maybe it was,

22 maybe I had the month wrong. You had just

23 showed it to me.

24 I wrote a letter to him on the 18th

25 and I think it was in response to a letter

37

1 Buckner wrote me on the 14th.

2 Q Let me refer you to Exhibit 202,

3 which is a fax from Judge Buckner to you and

4 Lunsford Long.

5 A Okay. This is an instruction to Mr.

6 Long to draw up the order and this was

7 actually, Carmen -- remember when I said that

8 the judge had led us to believe he was going

9 to rule one way and then Lunsford went

10 upstairs and talked to him and that he then

11 issued an opinion that was completely

12 contradictory, and you had said "What was

13 that?" and I said I couldn't exactly

14 remember. This was it.

15 Q Well, in item three of that fax from

16 Judge Buckner, doesn't it say, "All judges in

17 15B recused. AOC to be asked to provide

18 judge for all subsequent substantive matters"?

19 A Yeah, it does.

20 Q So does that indicate to you that

21 there was already -- the issue had already

22 arisen of obtaining a visiting judge to hear

23 Klein v. Klein?

24 A I mean, certainly he's saying the AOC,

25 so -- I will tell you, though, I'm not in the

38

1 inside, I don't know, but I would be very

2 surprised to find out that when visiting

3 judges are called into Orange County, which

4 they are on a regular basis, that Judge

5 Buckner is calling Judge Walker.

6 Correct me if I'm wrong; I don't

7 think that's how visiting judges are ordered

8 in any county in this state.

9 Q Is the Administrative Office of the

10 Courts, to your knowledge, the agency that

11 would provide a visiting judge upon request?

12 A Oh, I think they are, but I just

13 don't think you go to the Executive Director

14 of the AOC to do that. I would think that

15 would make the Executive Director a very busy

16 person, like very busy.

17 Q If you would flip back to Exhibit

18 301 and look at the second page.

19 A Uh-huh (yes).

20 Q What about the content of that

21 letter led you to believe that Judge Walker

22 wanted the Klein case to be heard within the

23 month?

24 A Well, we have monthly calendar calls

25 in Orange County. It's the only county I

39

1 know that has a system like this. And so if

2 you only can pick -- if your case goes on the

3 April calendar, you only have in front --

4 when we go to court, then, on April 7th, the

5 clerk and Judge Buckner only have in front of

6 them the April calendar. That's it.

7 It's very, very rare that at an April

8 calendar call you could say, "I don't think

9 we can hear this in April, push it out to

10 May, give us a date."

11 I'm not saying that never happens.

12 It kind of depends on Mindy and, you know, if

13 she's looked ahead.

14 But usually calendar call in Orange

15 County is just for that month. So when I saw

16 this letter, that would, just from my own

17 experience in calendar call, and the fact

18 that Mindy, you know, is involved in this,

19 that that is telling me that there was

20 definitely some direction given that the case

21 was to be heard in April.

22 Q Just because it was placed on the

23 calendar.

24 A Oh, yeah, because that's how it

25 works. I mean, it wouldn't have been any

40

1 other time.

2 Q And what about this letter led you to

3 conclude that Judge Walker -- I'm sorry, how

4 is it stated -- should be -- that the Klein

5 case "should be presided over by a visiting

6 judge"?

7 A Should be presided --

8 Q That Judge Walker had expressed an

9 opinion that the Klein case should be

10 presided over by a visiting judge. What

11 about that letter led you to believe that?

12 A I don't see anything in this letter,

13 but can you show me -- I'm really sorry,

14 where was the transcript? I want to --

15 Q It's at 302.

16 A Yeah, let's just look back. I want

17 to see -- and where did I say that, Carmen?

18 Okay. That it "should be heard this month by

19 a visiting judge."

20 Yeah, I don't know -- I don't know

21 where that would have come from apart from

22 the fact that I knew that there had been a

23 communication from the AOC, and just as you

24 had said, the AOC is the agency that would

25 normally schedule a visiting judge, and I

41

1 believe I think in my e-mail to Judge Walker

2 I had asked for a visiting judge.

3 Q When you say there had been a

4 communication from AOC, the only evidence of

5 that you have is the fact that there was a

6 communication to the AOC, is that correct?

7 A That is correct. That is a

8 presumption on my part. I presumed after

9 having sent my fax four hours earlier asking

10 Becky to make sure that she brought it to

11 Judge Walker's attention, and she assured me

12 that she would bring it to his immediate

13 attention, and that four hours later I

14 received something that has been carbon

15 copied to Judge Walker, that was definitely a

16 presumption on my part.

17 I did want to believe and did

18 believe that someone was going to come in and

19 help my client get some sort of relief after

20 nothing had happened in her case for three

21 years.

22 Q Did you receive a response to your

23 e-mail that you sent to Judge Walker?

24 A No, not signed by him. No. I mean,

25 Becky might have sent me back -- I'd have to

42

1 check my e-mail if she sent me something back

2 saying it's been received or what have you,

3 but I don't remember that specifically.

4 I do remember specifically, no, that

5 he did not communicate back with me, but I

6 didn't necessarily expect him to. I just

7 wanted action.

8 Q Is there anything about the letter

9 in Exhibit 301 that made you think it was

10 authored by Judge Walker?

11 A No, the only issue, as I explained I

12 think, was that when we go to calendar call

13 we may have -- oh, we could have anywhere

14 from two to six to eight cases on the

15 calendar, and it's not standard procedure, at

16 least for me, and I don't think it is -- I

17 can only speak for me, but we don't take all

18 of our files to calendar call.

19 And like I said, my paralegal had

20 shown me this, I knew I was excited about, I

21 was excited for Kathy.

22 I didn't have the file with me and I

23 didn't have this letter in front of me. So

24 when it -- first of all, the calendar code

25 was a bit of a debacle because if Mindy had

43

1 written this, Mindy would have brought this to

2 Judge Buckner's attention. I don't think

3 Mindy writes anything unless Judge Buckner

4 tells her to write it. So Judge Buckner knew

5 about this.

6 But when we got to calendar call,

7 Judge Buckner was not on the bench, Judge

8 Scarlett was. So I thought it was, you know

9 -- anyway, whatever.

10 When the issue came up, Lunsford again

11 started making excuses why, you know, the

12 case could not be heard. I remember that

13 there had been some communication that Judge

14 Walker had been involved in some manner, I

15 believed, again I presumed, that it was in

16 response to my call for help, and that's why

17 I said that I believe that there was some

18 message coming out of the AOC that the case

19 was to be heard in April.

20 And as you can see from the rest of

21 the transcript, after three years of not

22 getting court hearings, Lunsford just

23 started backpedaling again and wouldn't commit.

24 Q In response to Paragraph 21 in the

25 complaint, you indicated you didn't have

44

1 sufficient information to answer whether or

2 not Judge Walker had expressed an opinion

3 about the Klein case.

4 A Right.

5 Q Aside from the content of Exhibit

6 301, which we've I think overanalyzed by this

7 point, do you have any other reason to

8 believe that he expressed any opinion about

9 the Klein case?

10 A I would say just the fact that, you

11 know, Mindy put his name at the bottom. I

12 mean, it may be this story now, but, you

13 know, she put the name at the bottom because

14 they were looking for a visiting judge. I

15 mean, I really don't know what they will be

16 saying in that regard. But I felt that he --

17 I don't know for sure. That's why I said I

18 don't have knowledge, but I was hoping and

19 wanted to believe that after he saw my e-mail

20 he called Judge Buckner and at least spoke to

21 Judge Buckner -- well, possibly called Judge

22 Buckner, who then told Mindy, "Write the

23 letter, put it back on the April calendar,

24 and let's carbon copy Judge Walker in on it

25 to show Judge Walker that we're doing what

45

1 we're supposed to be doing."

2 I mean, if there is another letter

3 that maybe Judge Buckner wrote to Judge

4 Walker and he's saying, "Judge Walker, we

5 need a visiting judge," I'd love to see that.

6 Q So that scenario that you just

7 described, though, is something that you're

8 speculating may have happened.

9 A Yes, that's correct. That's why I

10 said I have no -- I don't have enough

11 knowledge to admit or deny.

12 Q I'm not sure -- along those same

13 lines, there was a similar response to

14 Paragraph 23, "AOC Director had not written a

15 letter to you and/or opposing counsel."

16 A Yes.

17 Q Did you receive a letter directly

18 from Judge Walker?

19 A No. I think I already answered that

20 question, Carmen. I said he did not

21 communicate with me directly.

22 Q Do you have any reason to believe

23 that opposing counsel received a letter from

24 Judge Walker?

25 A I can't answer that. That's why I

46

1 answered it the way I do. He might have sent

2 Lunsford a letter. I have no idea.

3 Q I guess my question was, you don't

4 have any affirmative reason to believe that

5 he did send a letter to Lunsford?

6 A This answer, I'm sticking with that

7 answer. I mean, I think that answer

8 correctly answers the allegation and that is

9 my answer here today.

10 Q If we could look at Exhibit 303.

11 Paragraph 25 in the complaint references an

12 e-mail that you wrote to opposing counsel.

13 A Uh-huh (yes).

14 Q And your response says that you

15 admit writing the e-mail and the terms of it

16 speak for itself. Is Exhibit 303 the e-mail

17 that you referred to in your answer at

18 Paragraph 25?

19 A [Witness Views Document] Yes, that

20 is the e-mail.

21 Q And this is the day after calendar

22 call that you wrote this e-mail, right?

23 A Correct.

24 Q At that point, what was your basis

25 for saying in the e-mail, "Judge Walker

47

1 assumed this matter would be taken care of

2 yesterday at calendar call"?

3 A The same basis that I had the day of

4 calendar call, that I believed that he did

5 make some response to my e-mail by contacting

6 Judge Buckner, and that the fact that -- I

7 mean, I've asked Judge Buckner for scheduling

8 assistance in the past three years dozens of

9 times, and he has ignored every single one.

10 So, the fact that I actually sought outside

11 assistance and appeared to receive assistance

12 within four hours led me to believe that

13 Judge Walker had involved himself in the

14 issue and wanted the case to be heard in

15 April. Because I can assure you that if it

16 had just been me and if I had not contacted

17 Judge Walker, that case would not have gone

18 back on the April calendar call. There was

19 no way.

20 Q You mentioned scheduling assistance.

21 Can we look back at Exhibits 212 and 213 and

22 tell me if these are examples of what you're

23 referring to when you say you asked Judge

24 Buckner for scheduling assistance?

25 A [Witness Views Documents] Okay.

48

1 And what was the other?

2 Q 212 and 213.

3 A [Witness Views Document] This would

4 be two of many examples.

5 Q You described earlier that Orange

6 County calendar -- monthly calendar call --

7 A Uh-huh (yes).

8 Q -- why would you attempt to schedule

9 your cases by letter to the Chief District

10 Court Judge instead of just by noticing them

11 for a calendar.

12 A Well, that's not uncommon at all.

13 It's one way of getting a preemptory setting.

14 And the calendar call is definitely

15 used when you have two attorneys who cannot

16 agree on a date, but it is not unusual by any

17 means for the attorneys to get together on

18 their own. That frequently will happen prior

19 to calendar call, so when the case is called,

20 someone just stands up and says, "We've

21 already made the agreement." Or there could

22 be any -- oh, a score of reasons why you

23 would try to schedule directly with Judge

24 Buckner.

25 If I'm not mistaken, in Orange

49

1 County, we have very few local rules of

2 court, which is part of the reason why the

3 courtroom -- or the Civil District Court is as

4 dysfunctional as it is. Because there are so

5 few rules of court.

6 But if I'm not mistaken, in the few

7 rules that there are, it does address going

8 to the Chief District Court Judge for

9 scheduling assistance, which is what I've

10 always done, but to no avail.

11 Q In this case, had you and Lunsford

12 Long come to any agreement on court dates? I

13 mean, was that why you were sending this

14 letter?

15 A I'd have to take a minute -- well,

16 one of the issues in the Klein case -- well,

17 you see this is 2008. I had been

18 representing her since 2005. Lunsford, over

19 the course of the three years, would never

20 agree to a court hearing. For me, it became

21 even more complicated, the scheduling,

22 because my client, Kathy lives in Texas. And

23 so, I mean, you can imagine if I had flown

24 her in to every court hearing. We had court

25 hearings where I would finally get a date and

50

1 then I think I gave one example, Carmen, that

2 I think you are familiar with where an hour

3 before the hearing Mindy called us to tell us

4 that Judge Buckner had canceled his entire

5 court calendar.

6 So I was trying to always firm up

7 the court dates as best I could in advance.

8 I needed to notify Kathy. Kathy had very

9 little money. Kathy had to make -- you know,

10 she was either driving 12 hours to a court

11 hearing or trying to pull the money together

12 to fly in, and I was always very hesitant to

13 have -- she couldn't afford to do that if

14 Judge Buckner was cancelling out at the last

15 minute. So I think in her case, having an

16 out of town client, it's not unusual at all

17 to be attempting to calendar your cases this

18 way.

19 Q Could you have gone to the June

20 calendar call and said -- you know, put the

21 case on that calendar and said, "I will be

22 available on June 18, 19, 20 and 25, and we

23 need to set it for one of those days"?

24 A Oh, I had been doing that for three

25 years. Never worked. Lunsford didn't want

51

1 to have the case heard, and if Lunsford

2 doesn't want to have the case heard, Judge

3 Buckner is not going to hear it.

4 Q I guess I'm trying to understand how

5 -- why one would do this by letter to the

6 District Court, the Chief Judge instead of

7 calendar call in this kind of situation where

8 you didn't have an agreement on a date.

9 A Well, I think I just explained that

10 if you have an attorney on the other side who

11 is not going to cooperate with you, the rules

12 require -- I believe the rules require us to

13 go to the Chief District Court Judge to

14 attempt to calendar our cases. And that's

15 what I have done in numerous cases, whether

16 or not -- in some of the cases Judge Buckner,

17 like in this one, was the presiding judge.

18 In others, he was not, but I've still gone.

19 Q You said you think --

20 A Attorneys do it. I do know that. I

21 mean, lots. Mindy is kind of Judge Buckner's

22 gatekeeper and I think Mindy's been there

23 since Peggy Riley resigned after the

24 sexual-harassment lawsuit. And if Judge

25 Buckner likes you, Mindy likes you and you'll

52

1 get some assistance with calendaring your

2 cases.

3 If Judge Buckner doesn't like you,

4 if you're not playing Judge Buckner's game,

5 then Mindy's not going to be very helpful

6 either.

7 So, back to what you asked. It's

8 not unusual at all for attorneys to

9 constantly be calling Mindy to try to

10 schedule their cases in advance of calendar

11 call.

12 Q Did you say you thought there was a

13 local rule that provided for something along

14 those lines?

15 A Yeah, and let me explain why,

16 Carmen. If you will remember, when the

17 criminal contempt charge was brought against

18 me by Judge Anderson, a big part of that,

19 Judge Anderson was very upset that I did not

20 go to Judge Buckner to resolve a calendaring

21 issue.

22 And I don't have -- maybe you have

23 in this stack of documents, the show-cause

24 order, but he specifically says that I

25 violated -- and I don't know if he cites the

53

1 local rule, but he talks about me violating

2 the rules of court, that I did not seek

3 assistance from Judge Buckner.

4 Well, that's a primary example of when

5 another time I sought assistance from Judge

6 Buckner. Judge Anderson knows that is the

7 protocol or he wouldn't have -- the problem

8 was Judge Buckner never told Judge Anderson

9 that I did follow the protocol. Judge

10 Buckner never told Judge Anderson that no

11 matter how many times I followed the protocol

12 it's going to be ignored. Because I don't

13 play Judge Buckner's game.

14 Q What game is that?

15 A That is the game that you ignore

16 that Judge Buckner is a sex addict; that you

17 ignore that he cancels court hearings at the

18 last moment; that you ignore that he will lie

19 in the courtroom; that you ignore that he

20 does not follow the law; that you ignore that

21 he engages in ex parte communications; that

22 you choose not to appeal the cases, because

23 if you do and you try to get his opinions

24 reviewed, like I did in the McManaway case,

25 that he will do everything in his power to

54

1 make sure that you are blackballed, and that

2 you cannot practice law in Orange County

3 District Court. Because they don't want

4 people in there blowing the whistle.

5 Q I have to follow up.

6 A Please do.

7 Q What is the evidence of Judge

8 Buckner's sex addiction that must be ignored?

9 A Well, it is common knowledge that

10 Judge Buckner has had sexual relations with

11 numerous female attorneys in Orange County.

12 If you right now were to Google Judge

13 Buckner's name, the first thing that is going

14 to come up on Google is a post that was

15 posted on a website in January where a civil

16 litigant is complaining because Karen Davidson

17 represented his wife and he had a number of

18 unfavorable rulings against him despite what

19 the evidence showed; and it wasn't until

20 after the case was over when he was up at the

21 courthouse one of the courthouse staff, I

22 would assume it was one of the clerks, shared

23 with him that everybody knew that Judge

24 Buckner had had sex with Karen Davidson.

25 And that is true, everybody does

55

1 know. And that after that point in time that

2 they were engaging in sexual relations, at no

3 point in time did Judge Buckner recuse

4 himself from Karen's cases.

5 Not only that, Karen is the attorney

6 advocate for the Orange County Guardian ad

7 litem program, which is a very nice plum

8 position, I'm sure financially lucrative, and

9 she also happens to work for Epting and

10 Hackney, which is Judge Buckner's former law

11 firm.

12 In addition to Judge Buckner not

13 recusing himself and hearing Karen Davidson's

14 cases for years, at no time has Karen taken

15 the ethical position that she will not put

16 cases in front of Judge Buckner.

17 In addition to that, it is also common

18 knowledge that he had sexual relations with

19 Mindy Harris, his judicial assistant; Lisa

20 Reynolds, another attorney who tried to get a

21 judgeship; as did Karen Davidson; as well as

22 Audrey Page, who my legal assistant was her

23 roommate and knew that she was having a

24 sexual relationship with Judge Buckner, and

25 Audrey later got a job at the courthouse.

56

1 Q Sounds like what you've just

2 described is talk around the courthouse, is

3 that correct?

4 A Orange County is not a very big

5 county, and Hillsborough is a very small town.

6 And I think there are plenty of people there

7 who knew Judge Buckner and Lunsford Long

8 during their partying days. I wasn't there,

9 so I've not been privy to that.

10 It's gossip. I mean, I think that's

11 true. I don't think anybody sitting in this

12 room, or probably ever going to be in a room,

13 can say that they were in the room when Judge

14 Buckner is engaging in sexual activity.

15 But I think that the gossip is

16 pervasive enough, enough people know enough

17 people -- grammatically I think that was

18 correct -- enough people know what's going on

19 in the courtroom.

20 I think that there are male lawyers,

21 certainly Lunsford Long is one of them, who

22 is privy to the addiction, what knows what is

23 going on in the courthouse, who knows what

24 motivates Judge Buckner. And if you know

25 what his issue is, and you hide that issue,

57

1 then you end up benefiting from that.

2 Lunsford has benefited for years.

3 Lunsford has made hundreds and thousands of

4 dollars, I'm sure, keeping Judge Buckner's

5 secrets secret.

6 Q How do you mean he's made hundreds of

7 thousands of dollars keeping the Judge's

8 secrets?

9 A Well, I worked for Lunsford for five

10 months, and it only took me five months to

11 figure out how he runs his practice. And the

12 way he runs his practice is he'll take

13 absolutely every case that comes to his door;

14 whether or not he can handle it, he takes it.

15 If they have money, he takes it.

16 He is way overloaded. All day long

17 the phone is ringing, people just want to

18 know why he's not paying any attention to the

19 case. He rarely responds to discovery. He

20 rarely follows the Rules of Civil Procedure.

21 And then he'll do exactly what he

22 did to me in the Klein case. Did not produce

23 a single piece of discovery for three years;

24 said the case could not be heard.

25 And then if some attorney is

58

1 fortunate enough to get a court hearing

2 because they go into court and they're like a

3 Susan Lewis and they just have a complete

4 hissy fit in front of Judge Buckner and

5 demand a court hearing, then he'll put the

6 case in front of Judge Buckner or some other

7 judge who he feels that he has some sort of

8 influence over, and he'll go into court and,

9 just like he did in the Klein case, I almost

10 got a ruling that was favorable, but I have

11 every reason to believe, because I know how

12 Lunsford operates, he marched right upstairs

13 and told Judge Buckner "Rule against her,"

14 and Judge Buckner did.

15 And that's the way things are run in

16 Orange County District Court.

17 Q I'm trying to understand how this

18 information which you've just characterized

19 as gossip --

20 A Uh-huh (yes).

21 Q -- how that has any bearing on Judge

22 Buckner's rulings in the courtroom.

23 A Judge Buckner wants more than

24 anything, after Peggy Riley's lawsuit, what he

25 wants is to be re-elected. And so what Judge

59

1 Buckner will do is, in my opinion, he will

2 very rarely follow the law, but he will rule

3 in favor of usually the attorney -- there's

4 kind of an inner sanctum in Orange County. I

5 mean, I was just -- in my opinion, the man is

6 very, very mentally ill. And you can ignore

7 that and then you will not win any cases; or

8 you can ignore what he does in the courtroom

9 and play along.

10 So, in other words, you could tell

11 your client before you're getting ready go to

12 into court -- like maybe I would tell Kathy

13 Klein, "Kathy, the law says we're going to

14 win this. This is what the law is. This is

15 what your expectation should be. Maybe

16 you're not going to win this amount, but the

17 law is on your side."

18 And so you go into court and then

19 Judge Buckner will make a ruling that will be

20 the exact opposite. He won't follow the law.

21 So then you have to go back and explain to

22 your client why -- not only why they just

23 lost, but why the judge didn't follow the law.

24 There is a core group of attorneys

25 in Orange County who don't have a problem

60

1 with that, who will go along with the fact

2 that Judge Buckner didn't follow the law

3 because they want to be able to continue

4 taking cases in front of Judge Buckner. They

5 want to continue to have a law practice.

6 Q You said that the judge rarely

7 follows the law. If a judge issues a ruling

8 that contains an error of law, wouldn't you

9 agree that the appropriate remedy is appeal?

10 A You know, I'm an appellate lawyer, so

11 I'm all about appealing. But here's the

12 bottom line. Any given day, go into Orange

13 County District Court and look at the

14 litigants in the courtroom, and I can assure

15 you that on any given day 99.9 percent of the

16 civil litigants in there cannot even come

17 close to affording a $10,000 appeal to the

18 Court of Appeals. And Judge Buckner knows

19 that.

20 If you look at the cases that are

21 being appealed out of Orange County, it's

22 fascinating. The cases that he's involved

23 with, they're normally 7B appeals. And why

24 is everybody appealing those cases?

25 Because there is court-appointed

61

1 counsel, and the indigent litigants are

2 getting counsel provided to them from the

3 Office of the Appellate Defender.

4 And if you look at the track record

5 in those cases, it's amazing. It's not

6 usually the Court of Appeals saying things

7 like he didn't follow the law -- although you

8 have a slew of those cases, what you have is

9 the Court of Appeals saying, just what

10 happened to my oral arguments on Wednesday,

11 is this is a judge who doesn't have court

12 hearings, who doesn't even give -- who does

13 not uphold the litigant's constitutional

14 rights to due process.

15 There are sham hearings, just like

16 in Tammy Chandler's case where he says, "Your

17 attorney was late, Ms. Chandler, I'm not

18 going to hear this."

19 Oh, he heard it. No evidence

20 whatsoever. Someone handed up a report,

21 which the Court of Appeals has repeatedly

22 said and just issued an opinion this month

23 where they have said that in a 7B case you

24 have to put on some sort of oral evidence.

25 Q Are you saying that at your oral

62

1 argument this week the Court of Appeals made

2 -- or a judge on the Court of Appeals made

3 some comment to the effect that these were

4 sham hearings?

5 A No. That was not -- no. It's going

6 to be interesting. I'm very excited and, to

7 be honest, I'm really looking forward to

8 reading the rulings. You can never tell,

9 but, again, just like hearing something

10 that's going on in the Supreme Court, you can

11 sort of gauge where the judges are going by

12 the questioning. And I felt that I could

13 read somewhat into -- they weren't

14 questioning me as much as they were

15 questioning opposing counsel, Leigh Peek.

16 But I think they made it very clear that when

17 a child is removed from a mom that there has

18 to be a hearing, and the judges were very

19 aware that there was no hearing. And if I'm

20 not mistaken, they did ask Leigh Peek if in

21 fact she did not admit that there had been no

22 court hearing and there should have been one.

23 So whereas I don't know what my

24 client won on Wednesday, I don't know the

25 extent of the win, I would be very, very

63

1 surprised if the Court of Appeals does not

2 rule -- does not reverse the denial of my

3 Rule 60 motion saying that Judge Buckner had

4 abused his discretion in entering a permanent

5 child custody order when there was no

6 evidence presented; he was not in the

7 courtroom; he was not in the courthouse;

8 Mindy Harris signed the order.

9 And I guess that about covers it.

10 Q I need to go back to a question I

11 asked earlier because I think we kind of got

12 off on a tangent about --

13 A We did.

14 Q -- about following the law. And my

15 question was, what is the relevance of this

16 gossip about the Chief Judge's personal life?

17 What is the relevance of that to his rulings

18 in the courtroom?

19 A Right. Yeah, and I did get off and

20 I know I was getting off on a tangent.

21 The relevance is, it's not just --

22 it's not the gossip. I mean, of course,

23 gossip is never relevant. The relevance is

24 you have a mentally ill person on the bench.

25 Just as if you wouldn't want to have an

64

1 alcoholic on the bench or any addict on the

2 bench, you don't want to have a sex addict on

3 the bench. Because he is a sex addict, what

4 happens is, you can take advantage of it.

5 When he's not doing what he should

6 be, when he's not doing his duties, when he's

7 outside the courthouse doing God knows what,

8 when he's canceling things at the last

9 minute, or in any other way that that

10 addiction -- or when you're in front of him

11 and Karen Davidson is on the other side, and

12 you know that he has no business if he had a

13 sexual relationship with her, and you're

14 sitting there -- like getting back to the

15 Chandler case. I mean, again, everybody

16 knows Judge Buckner had sex with Karen

17 Davidson. So now she's the attorney advocate

18 in my case representing the guardian ad litem.

19 I go and file in the Court of

20 Appeals for some petitions for writs, at this

21 point I can't even remember what they were,

22 and Karen Davidson files an affidavit. And

23 in that affidavit, in my opinion, she lies.

24 She lies to cover up Judge Buckner.

25 So, is the gossip relevant? No.

65

1 But the fact that he's a sex addict and he's

2 on the bench and he's -- his behavior is

3 flat-out bizarre.

4 I mean, Carmen, don't take it from

5 me. He has temper tantrums, screaming

6 tantrums, cancels court hearings at the last

7 minute.

8 Unless you're there, I cannot explain

9 to you how dysfunctional it is. But when

10 you're there, you know.

11 No one is following any rules. He's,

12 you know -- if I'm there and Lunsford is

13 opposing counsel and the law says my client

14 should win, Lunsford is going to win every

15 single time.

16 If I am there and Leigh Peek is on

17 the other side, Leigh is going to win, Donna

18 is going to win. Because they all cover up

19 and they hide for him.

20 When he calls Donna Davis and says,

21 "I'm canceling a court hearing," and she has

22 someone coming in from out of town, Donna

23 just calls her client up and says, "Oh, I'm

24 really sorry. You've got to eat the $500

25 airplane ticket."

66

1 When he called me and said he was

2 canceling his entire afternoon calendar in

3 Kathy Klein's case, I got in the car and

4 drove up to the courthouse to see if he had

5 in fact canceled the entire afternoon docket.

6 He had not.

7 He had cancelled Kathy's case I'm

8 presuming because Lunsford called him on the

9 phone and said "I don't want to get heard"

10 for the, you know, 25th time.

11 But I went up to every attorney

12 there, "Did you get a call? Did he cancel?

13 Are you getting heard?"

14 "Oh, we're getting heard. We're

15 getting heard."

16 Q You've said a variety of things

17 about Judge Buckner in a variety of contexts.

18 I've not previously heard the phrase "sex

19 addict." Where are you getting that

20 characterization from?

21 A Well, if you go back and look at the

22 allegations in Peggy Riley's complaint, and I

23 think for me it hit home -- I mean, the

24 allegations are serious. And I actually read

25 the original complaint she made with the EOC.

67

1 I think what might have happened was

2 her attorneys told her to tone it down a bit.

3 But if you look at the original complaint

4 that she had filed with the EOC prior to

5 filing the actual sexual-harassment lawsuit,

6 it can only be characterized as disgusting.

7 This is a man who clearly needs

8 psychological help. And, if, in fact, he

9 didn't get it -- number one, that's a huge

10 problem after the sexual-harassment was

11 brought, or at any time while that case was

12 proceeding in federal court.

13 The reason why I believe he's a sex

14 addict is, if you're not a sex addict,

15 Carmen, and someone brings a lawsuit like

16 that and it's proceeding through the federal

17 courts for four years, at least at the end of

18 it when the case was settled because you've

19 just lost in the Fourth Circuit, then -- you

20 look at me quizzically.

21 Q There was never a judgment on that

22 case.

23 A That's right. The case was settled

24 after the Fourth Circuit -- it went up on

25 appeal and the Fourth Circuit ruled that --

68

1 it denied Judge Buckner's attorney's motion.

2 They were asking the Court to find that she

3 should not be able to proceed on her

4 intentional infliction of emotional distress

5 claim.

6 And if I'm not mistaken, the Fourth

7 Circuit said -- they denied that. They said

8 yes, absolutely, that she could.

9 And at that point a trial date was

10 set and they were moving forward to trial and

11 the case was settled. Which, I mean, you

12 know, it settled.

13 Okay. So back to what I was saying.

14 If he wasn't a sex addict and you've gone

15 through that for four years, you don't

16 continue to engage in sexual relations with

17 attorneys; but even after that, he did. I

18 know that even that he had the affair with

19 Audrey Page, my legal assistant's roommate.

20 I don't think he can stop. But I'm

21 not a psychologist.

22 Q Are you saying that because he at

23 one time is rumored to have had a

24 relationship with Ms. Davidson that he is

25 biased in her favor?

69

1 A I would say that, again, if you go

2 Google him and you bring up the article -- or

3 the posting by the gentleman, and you look at

4 what it means to be the gentleman who found

5 out after the case was over and you look -- I

6 mean, it's not really about me, is it? Isn't

7 it about the public?

8 Q Well, I'm interested in --

9 A How would you feel if it was your

10 case and --

11 MR. WITT: You don't get to --

12 A I'm sorry. I don't get to -- okay,

13 let me say, I think the average Joe on the

14 street does not want to find out after the

15 case is over, win or lose, that the judge was

16 having sex with the opposing counsel. It's

17 not appropriate.

18 Q That wasn't really my question. My

19 question is, do you believe --

20 A Yeah.

21 Q -- that because a judge is rumored

22 to have, at one time, had a relationship with

23 an attorney, that that means that judge is

24 biased and should not preside over those

25 cases?

70

1 A If it was one rumor -- I mean,

2 clearly, we can discuss rumors all day.

3 These are pervasive rumors that everybody in

4 Hillsborough knows, that people have known for

5 years. And in his case, yeah, I believe that

6 he should not be hearing the cases of the

7 female attorneys who he had sex with, yeah.

8 I believe that is completely unethical.

9 Q Did you file a motion to recuse the

10 judge in the Chandler case?

11 A Yes.

12 Q Did you include that among your

13 bases for recusal?

14 A I did not.

15 Q Why not?

16 A Well, there's only so many battles

17 you can fight. And so I knew that he had

18 lied because my client told me that he had,

19 and I had that order in front of me. And I

20 felt that -- I mean, I didn't -- but I would

21 be filing motions to recuse -- I mean, you

22 have to understand, Carmen, that I'm here

23 today. The message that is being sent, in my

24 opinion, by the Bar bringing the complaint

25 against me, that's a very clear message.

71

1 You're not going to see a whole bunch of

2 grievances coming out.

3 People should be -- I mean, I think a

4 grievance should be filed against Karen. I

5 think people should be going back to the

6 Judicial Standards Commission.

7 But you all have sent the message:

8 this is what happens when you blow the whistle

9 on what's going on in Orange County. They

10 will take you down and the Bar will help them.

11 So who is going to come forward?

12 I mean, I took an oath, and that

13 means something to me. I took an oath to

14 protect my client's rights. And you cannot

15 do it in Orange County. You have to play the

16 game.

17 If your clients are getting screwed

18 right and left, you have to shut up if you

19 want to continue to practice there and make

20 money. Because otherwise, I mean, I could

21 practice at the end, but every time I went

22 into court, no matter what I did, Judge -- I

23 could go in, "The sky is blue," and the sky

24 would be blue; "No, it's raining. Denied."

25 So what ultimately happened? I

72

1 ended up taking everything to the Court of

2 Appeals. Exorbitantly expensive.

3 What happened when I did that? He

4 tried to stop the appeals. I've had cases

5 where he refused to enter an order because he

6 didn't want me to appeal it.

7 Q Did you have that same problem with

8 Judge Scarlett?

9 A In the end, yes. Yes. Judge

10 Scarlett is a very interesting judge.

11 For a while I was on the campaign

12 trail. Judge Coleman I think once or twice

13 spoke. And I think they figured out that

14 that wasn't a good way to go. So they pulled

15 Judge Coleman off and sent out Judge Scarlett

16 as the Orange County District Court

17 representative.

18 I had a couple of opportunities to

19 speak with her publicly, and even though I've

20 always personally believed that Orange County

21 District Court is corrupt and pretty much

22 rotten to the core, I didn't express that in

23 my campaign speeches, by any means. I would

24 talk a lot to the public about how change was

25 needed in Orange County. And I had -- I was

73

1 fortunate because I've always had -- actually,

2 the largest part of my practice has always

3 been Durham County, and because I practiced

4 in Durham, Wake, Alamance, and in other

5 counties where they've had family courts and

6 rules, it's been easy for me too compare.

7 If you're always in Orange County

8 District Courts, you can kind of forget

9 what's happening out in the rest of the State

10 of North Carolina; that the law is being

11 followed; that there are rules of court; that

12 people are producing discovery; that the

13 judges are making every attempt to follow the

14 law.

15 So when I was going out and speaking

16 at a couple of events where she was, I could

17 tell that she was very, very distressed by

18 what I was telling the public. And it was I

19 believe at that point where Judge Buckner

20 stopped hearing I think a few of my cases and

21 then instead he put on Judge Scarlett. And

22 then she just -- I mean, then the

23 blackballing became, you know -- just really

24 kicked into gear.

25 And then everything I tried to do

74

1 was just completely stymied. And then she

2 just steamrolled. I mean, it was one -- one

3 case after the other.

4 One of my clients actually broke down

5 and wept in the courtroom. I mean, she was

6 just doing things that were absolutely

7 completely outrageous. But they wanted me

8 out. I mean, the best way to shut me up and

9 to stop blowing the whistle on them is to get

10 me out so I can't see what they do.

11 Because if you're in the courtroom,

12 you will see what's going on every single day.

13 Q We're going to talk about some of

14 the cases with Judge Scarlett later on. I

15 want to return to this third claim.

16 A Uh-huh (yes).

17 Q Looking at Exhibit 308, which I

18 believe is your response to a letter of

19 notice from the Bar, is that right?

20 A Yes.

21 Q In this letter you say that you

22 contacted Superior Court Judge Carl Fox to

23 discuss with him the animosity that was

24 directed towards you since you filed for

25 office.

75

1 A Uh-huh (yes).

2 Q And you also say in here that you

3 asked Judge Fox what you should do in order

4 to protect yourself and your law license?

5 A Uh-huh (yes).

6 Q And you say that he suggested that

7 you file motions to recuse in all of your

8 cases, requesting that visiting judges be

9 assigned to hear all of your cases.

10 A Yes. Yes.

11 Q Are you certain that that is what

12 Judge Fox recommended?

13 A I am absolutely certain that is what

14 he recommended.

15 Q Is there any doubt in your mind that

16 he said to you, you should move to recuse all

17 the District Court judges in this district?

18 A Are you just repeating what you just

19 asked me a second time?

20 Q I just want to make sure that you're

21 absolutely sure.

22 A Yeah, yeah. I am sure. I know that

23 after this came out, that I had contacted

24 him, a couple of interesting things happened.

25 He called me and told me that he was

76

1 really, really upset that I had mentioned his

2 name. And I think that he was upset because

3 I think that he did not want -- he had his

4 own falling out of course with Judge Buckner

5 when he was chosen for -- to -- I'm trying to

6 remember which seat he got. Not Wade

7 Barber's, but whatever.

8 Judge Buckner wanted the judicial

9 seat that Carl Fox now has. And Judge Fox

10 and Judge Buckner go way, way back. Again,

11 there was a little, from what I've heard,

12 kind of a little frat-boy partying clan that

13 was made up of Lunsford Long, Judge Buckner

14 and Judge Fox. I think they did some

15 partying together.

16 And they had a falling out after

17 Carl was appointed to the seat that Judge

18 Buckner wanted. But at the same time, these

19 are guys who have a long history with each

20 other.

21 And it is true, what he said; he may

22 change his story, but that is exactly true,

23 what he said. And he also did tell me that

24 two judges were campaigning publicly against

25 me, and he didn't tell me which two, but I

77

1 definitely got the sense from talking to him

2 that Judge Buckner was one of them.

3 But, you know, everybody's trying to

4 hold onto their piece of the pie, and I

5 understand that. And I think that he -- I

6 appreciated the fact that, you know, I felt

7 that he was honest with me on the phone. But

8 his name then came up, I think it was when I

9 went to the Court of Appeals in the Chandler

10 case in one of my petitions for my writs. I

11 think that's when I -- I never said his name.

12 I tried to protect him, but, you know, it's

13 kind of ridiculous. You've got two Superior

14 Court judges, it's him and Judge Baddour. So

15 there was only so much protection I could

16 give him.

17 Oh, I know what happened. After I

18 wrote my petitions for writs to the Court of

19 Appeals and I named him as a Superior Court

20 judge, they called him -- meaning "they,"

21 that would have been Judge Buckner, Karen

22 Davidson, Carol Holcomb, and I'm sure they

23 called him to try to kind of like prove that

24 I was lying or what have you. And that's

25 when he called me and said he didn't

78

1 appreciate me using his name. And I said, "I

2 didn't use your name and the only thing I

3 said was the truth, so I don't think there's

4 anything there that you need to be concerned

5 about. I repeated exactly what you told me."

6 And, in fact, after he told me to do

7 this and that didn't work, I called Paul

8 Ross, who I have spoken to on the phone quite

9 a few times and said, "Paul, Carl told me to

10 file motions to get all the judges off. Who

11 hears the motions?" And Paul said, "You've

12 got to ask for a visiting judge to come in to

13 hear those motions."

14 I mean, it was like a Catch-22. We

15 were just going round and round and round.

16 So that's when, after I filed all the motions

17 to recuse, because Judge Fox told me to, then

18 I went to Paul and said, "I've got all these

19 motions, Paul, but I don't know who is going

20 to hear them."

21 And so he said, "Well, you need to

22 do another round and you need to ask for

23 visiting judges to hear all of those motions."

24 And so then based on his advice, I

25 did that. But it didn't matter because they

79

1 didn't bring any visiting judges in, and

2 every motion to recuse that I was able to get

3 heard on was either dismissed or denied, and

4 the one that was denied that I very much

5 wanted to appeal to the Court of Appeals,

6 Judge Buckner refused to enter an order; and,

7 in fact, it became almost comical.

8 I asked him -- I prepared an order

9 and said, "Please, just sign it, just sign it

10 so I can appeal it;" refused to sign it, and

11 then I went to Samantha Cabe and said,

12 "Samantha, ask him" -- opposing counsel.

13 And Samantha actually testified

14 against me at the criminal contempt hearing,

15 but that's neither here nor there. She's

16 still a colleague. I would assume she was

17 just doing what she felt she had to do.

18 But I asked her to ask Judge Buckner

19 if she could prepare the order. And I have

20 an e-mail or something, a fax, and she said,

21 "I'll be more than happy to prepare the

22 order, let me know."

23 Well, of course, he never let her know

24 because he doesn't want the order entered

25 because he knew I was going to appeal it.

80

1 Q What case was that?

2 A That was the Chandler case.

3 Q You mentioned that it was your

4 understanding that Carl Fox and Lunsford Long

5 and Joe Buckner are all buddies.

6 A Yeah.

7 Q That's just from what you've heard,

8 correct?

9 A Well, it's from what I've heard, but

10 of course you've got to remember, I'm working

11 in a district where I started practicing in

12 2000, but I mean, you've got attorneys like

13 Barry Winston, Sam Coleman, Judge Coleman.

14 These guys have been around for like 30

15 years. So, yeah, it's gossip, I would

16 imagine. But at some point people were

17 actually there partying with them, or, you

18 know, it's just everybody in any county would

19 know who was friends with whom, who had law

20 firms, you know, who were partners together,

21 and things like that. Crazy antics.

22 Q I'm trying to figure out why, if you

23 were seeking advice about what you perceived

24 to be animosity from Judge Buckner and

25 Lunsford Long, then why you would approach

81

1 someone who you believed to be their buddy

2 about that issue.

3 A Carl?

4 Q Yes.

5 A Oh, Carl. Well, that's a good

6 question. You kind of run out of people.

7 There are some people that I do trust that I

8 feel that do have integrity in Orange County.

9 Jimmy Woodall is one, a man of the highest

10 integrity, which is why I went to him and had

11 a long talk to him about Judge Buckner's

12 behavior.

13 Another judge -- another person,

14 interestingly enough, even though he brought

15 the criminal contempt charge against me, was

16 Judge Anderson. I don't think he ever would

17 have done it if he knew -- I might be wrong,

18 but Judge Buckner never told him that I wrote

19 the letter. He had no idea that letter had

20 been written.

21 And Carl. I mean, Carl's got a

22 history and there's funny gossip about Carl,

23 but I think that he is -- I've seen him in

24 court and I think he is very much trying to

25 follow the law and do a good job.

82

1 It's the same reason why I went to

2 Jimmy and told Jimmy, "Please go talk to

3 Carl." Because Carl, I think, because he

4 does have a history with Judge Buckner, and

5 he now is in a position of power, he's one of

6 the few people that can go to Judge Buckner

7 and say, "Get help", or "Stop doing what

8 you're doing," or "Guess what? You really

9 shouldn't run for judge again."

10 And Lunsford couldn't do that because

11 Lunsford is too busy making, like I said, too

12 busy making money off all the little benefits

13 he's getting. Of course, that's no longer

14 the case, but -- because Carl has now kind of

15 -- is outside and up above. I went to Jimmy

16 and I said, "Tell Carl." I specifically

17 said, "Go to Carl and see if Carl will talk

18 to Judge Buckner."

19 Now I can't know for sure, Carmen,

20 but I'm quite sure that Carl spoke to Judge

21 Buckner. That would just be the nature of

22 their relationship. They go way back. It

23 would be so surprised -- and the reason why I

24 point that out is because when I was in court

25 on May 11th --

83

1 Q Let's wait. Let's get --

2 A Okay.

3 Q We'll get there.

4 A Yeah, yeah. Okay. Did I even

5 answer your question?

6 Q You did. I just have one follow-up.

7 You said earlier something along the lines of

8 that "Judge Fox may change his story,

9 everyone's trying to hold onto their piece of

10 the pie." What do you mean by that?

11 A Yeah. What do I mean by that.

12 Well, let me give you an example. May I?

13 Q Of course.

14 A I'm know we're going all over, but

15 let me give you an example.

16 I had a client -- no, I had a

17 neighbor and she called me one day and she

18 said, her words, "What the hell is going on

19 in Orange County District Court?"

20 And I said "What do you mean?"

21 I'm trying to remember her first

22 name. Her last name is Beckwith, and her son

23 was Scott Beckwith.

24 And she said, "Well, my son Scott

25 got in trouble and he's just been assigned

84

1 counsel."

2 And I said, "Really? Okay. I got

3 that. He's getting, you know, a public

4 defender --"

5 "No, we didn't get a public

6 defender. They said there was a conflict.

7 He's been assigned an attorney. His name is

8 Don Dickerson."

9 And I said, "Okay. Yeah, Don. I

10 know Don really well. Don is a good

11 attorney. He'll do good for your son."

12 And she said, "Well, I don't think

13 so."

14 And I said, "Well, what do you mean?"

15 And she said, "Well, Don just called

16 me and told me that even though we have

17 court-appointed counsel and, you know, my son

18 is not going to have to pay for

19 representation" -- down the line he might if

20 he's found guilty -- "Don told me that if I

21 send him a check for $500, Don is going to

22 get a better deal for my son." She said,

23 "What's that all about?"

24 And I said, "Gee, that just sounds

25 wrong."

85

1 So I called James Williams, the Public

2 Defender, and I said, "James, this just

3 sounds wrong. You've got to look into this."

4 And so I think James told me, "Why

5 don't you call Don," and I did.

6 And I said, "Don, Ms. Beckwith tells

7 me that this is what you've offered her," and

8 Don got very defensive and tried to explain

9 to me that that wasn't what had happened.

10 But I felt that it was what had happened.

11 So I called James back up and I

12 said, "James, you know, I don't think it

13 would be too hard to investigate this. If

14 Don is taking cases from the Public

15 Defender's Office and the state is paying him

16 but he's double-dipping and he's going to all

17 of these clients and he's saying, 'I can get

18 you a better deal,' then," I said, "it leads

19 me to believe that he's got some deal going

20 with one of the judges up there. I really

21 think you need to look into that. And it

22 wouldn't be hard to look into it."

23 They keep a sheet of when the

24 attorneys are appointed, so all you would

25 need to do would be to trace back and to look

86

1 and see if Don was glomming [phonetic] all of

2 his cases together, which is easy to do when

3 you're doing criminal defense work, and try

4 to get everything on one day, and to see what

5 Judge he was making sure that his cases were

6 in front of, and then just to take a look at

7 the rulings; or to take some time to call up

8 some of the other people who had been

9 appointed. Right? James would have those

10 phone numbers. I would think they are in the

11 system, and say, "Hey, by any chance did Don

12 offer you -- did you give Don extra money

13 over and beyond? Did he promise you that he

14 would get you a better deal in court if you

15 gave more money?"

16 So James and I talked about it. I

17 said, "Gee, James, I just don't think this is

18 going to be hard to investigate. You need to

19 look into this. I think he's ripping off the

20 state."

21 Didn't hear anything back from James,

22 didn't hear anything back from James.

23 About six months later we were

24 talking about something else and I said,

25 "Hey, did you ever investigate that?"

87

1 "Oh, no, no, no, I never had time to

2 do that."

3 Okay, that's one example of holding

4 onto your piece of the pie. If James had

5 done that, if James had investigated or even

6 had started investigating -- they're all

7 elected officials -- James takes the chance

8 of what would happen to him during the next

9 election cycle, what they did to me. If you

10 do not play the game, if you do not put the

11 blinders on and pretend all of this is not

12 happening, they come after you.

13 That's what I mean by holding onto

14 the piece of pie.

15 Does James want to be reelected?

16 Does James have kids, like a child like me,

17 to put through college? He probably does.

18 Would he like to continue paying his

19 mortgage, like I would? He probably does.

20 So he played the game. He turned

21 the other way.

22 Q Can you identify any judges in

23 Orange County who you believe don't play the

24 game you just described?

25 A Yes. I believe that Judge Anderson

88

1 is a brilliant judge of the highest integrity.

2 I believe that is why he constantly wants to

3 get out of Orange County District Court.

4 I think anybody who has any bit of

5 integrity would feel like a fish out of water

6 in Orange County District Court. And I would

7 imagine that the only thing that saves Judge

8 Anderson on a daily basis is that when he's

9 in his courtroom, you have a certain amount

10 of autonomy, and he follows the law to the

11 best of his ability.

12 I can't speak highly enough of him.

13 I have a tremendous amount of respect for him.

14 I feel sorry for him. I know he

15 wants to get out. He's constantly trying to

16 be a Superior Court judge. He is very short

17 tempered. I don't hold it against him. I

18 think I probably would be too if I was trying

19 to be honest and -- I've been short tempered,

20 and I think I have integrity and I've been

21 trying to maneuver in a courthouse where

22 there are no rules. No rules. Anything goes.

23 So, Judge Anderson.

24 Judge Vernon I can't speak to

25 because I've not been in front of her at all.

89

1 I would like to believe that she is a good

2 person, that she's trying to follow the law.

3 I've heard some good things about her.

4 Judge Scarlett has -- is driven I

5 think by some of her own, you know, some

6 impersonal issues that are going to present

7 challenges for her.

8 Let's see, who else is currently --

9 Lunsford, I have no confidence whatsoever in.

10 He was the sleaziest of attorneys. I can't

11 imagine that he's going to be any different

12 as a judge.

13 Who else is on the bench Scarlett.

14 I'm just drawing a blank. Vernon -- whatever.

15 Judge Coleman got off. I think he

16 was a nice guy. I think he tried.

17 MR. WITT: Remember she had an

18 11:00 --

19 MS. BANNON: Yeah.

20 MR. WITT: Can we just take our

21 break?

22 MS. BANNON: This would be a

23 good time.

24 WITNESS: Yeah, let's take our

25 break.

90

1 [Recess - 11:00 a.m. to 11:14 a.m.]

2 Q I still looking at Exhibit 308, which

3 is one of your responses to the Bar. This is

4 not really a document-related question.

5 You mention in here that you made

6 contact with Mel Wright at the Chief Justices

7 Commission on Professionalism.

8 A Uh-huh (yes).

9 Q Was Mel able to mediate this issue or

10 any other issues between you and other

11 lawyers or judges in Orange County?

12 A No. I had worked with Mel in the

13 past on a separate issue that was successful,

14 but we did not mediate in any of these issues.

15 Q Did you get a response from him when

16 you forwarded Mr. Taibi's e-mail?

17 A Yes, I did.

18 Q Did he offer to try to mediate

19 between the two of you?

20 A He just encouraged me -- I had gone

21 to Mel early on and asked him if we could

22 initiate a professional support initiative at

23 the local level in Orange County. So Mel

24 knew from a very long time going back that I

25 was concerned about the corruption.

91

1 And so Mel did work with me and we

2 did get a local professionalism support

3 initiative voted on by the Bar.

4 He did respond in this case and he told

5 me -- I still have his e-mail, and if I'm not

6 mistaken, kind of paraphrasing his quote, he

7 said, "Betsy, try your best to take the

8 higher ground."

9 Q When you say you contacted Mel early

10 on, when did you contact him about setting up

11 a PSI in Orange County?

12 A I'd have to go back and look at my

13 notes. I want to say maybe as early as 2005

14 because I remember after I spoke with him I

15 went and addressed one of our 15B Bar

16 meetings that we have once a year at the

17 Fearrington Club -- Fearrington Inn. And I

18 want to believe that was in 2005 or 2006.

19 But, again, I can go back and look at my

20 notes. And I gave a small talk and said that

21 I thought it was very much needed.

22 It was also around the time when John

23 McCormick got into trouble. And to me it was

24 a real indication that there was misconduct

25 occurring in the district but that people

92

1 were hesitant to talk about it, which is why

2 things kind of culminated in a situation

3 where you have an attorney really harming

4 clients after, you know, running off with a

5 whole bunch of money. And I think that a lot

6 of people definitely knew that things were

7 not right with John, but no one came forward.

8 Q I think I'm ready to look at the

9 Fourth Claim now which involves the client

10 who was at that time Joanna Edwards.

11 A Correct.

12 Q I've referred to her in the

13 complaint as Joanna Crews because that's what

14 she goes by now --

15 A Sure.

16 Q -- so I'll just refer to her as

17 Crews. And this claim has to do in part with

18 her execution of a promissory note and deed

19 of trust, similar to the Klein matter.

20 A Yeah.

21 Q In your response to Paragraph 31 of

22 the Complaint, you say, "It is admitted that

23 Crews executed a promissory note in the

24 amount of $20,000 as a retainer for legal

25 services." What do you mean by "retainer"?

93

1 A She had no money to put down as a

2 retainer, so instead of asking her for cash I

3 asked her to give me a promissory note

4 secured by the deed of trust and that we

5 would then work off that -- it's hard to call

6 it a retainer because it's money that's not

7 there at that point in time except for the

8 security interest. But that instead of

9 taking the cash retainer I would take an

10 interest in one of their pieces of real

11 property.

12 Q The reason I'm trying to clarify it

13 is I think a lot of lawyers use the word

14 "retainer" when they really mean some other

15 specific type of fee. It sounds to me like

16 you're describing an advance fee. Is that

17 correct?

18 A I know in North Carolina of very few

19 attorneys anymore -- I may be wrong -- who

20 actually take what used to be called a true

21 retainer.

22 Q Right.

23 A Yeah. So when I say "retainer," I'm

24 not talking about that because that no one

25 takes those anymore. I'm just talking about

94

1 the money that you take in advance and then

2 you work against that. So whatever you guys

3 call that is what I'm talking about.

4 Q Okay. So if you had received actual

5 money from her, would it have been deposited

6 in your trust account and then billed against?

7 A Correct.

8 Q I also see that in your answer to

9 Paragraph 31 it says "Any remaining

10 allegations contained in Paragraph 31 are

11 denied." I just couldn't figure out -- it

12 seemed to me like you had restated the

13 paragraph, so I just need to know is there

14 something at issue here that we need to take

15 up at the hearing, or not? I was just a

16 little bit confused.

17 A I want to say that the part that

18 maybe we had some concerns about, or I did

19 anyway, was the phrase "In exchange for

20 Wolfenden's legal services." I didn't want

21 anybody to believe that there was an

22 understanding between me and Joanna -- and

23 I'll call her Joanna -- that her -- it was

24 not a flat rate. Let me put it that way.

25 Clearly was not a flat rate. And so "In

95

1 exchange for Wolfenden's legal services,"

2 maybe there was an implication en toto. I

3 did not want that implication.

4 Q Fair enough. On Paragraphs 32 and

5 33, I essentially had the same questions that

6 I had about the arrangement with Ms. Klein,

7 which is I understand you admit that you did

8 not advise Ms. Crews about the desirability of

9 seeking the advice of independent legal

10 counsel, et cetera. Is it also accurate to

11 say that before Ms. Crews executed the deed

12 of trust she did not give informed consent in

13 a signed writing as to the terms of the

14 transaction whereby you would acquire that

15 deed of trust?

16 A That is correct. I would like to

17 add that as was the case with Kathy Klein, I

18 was dealing with not two real estate agents

19 but two real estate brokers [sic]. So I felt

20 confident that they understood the

21 instruments, but it is admitted and true that

22 they did not -- there was no additional

23 writing over and beyond the documents that

24 they signed, which was the promissory note.

25 And I think that's all you sign. I don't

96

1 think they signed the deed of trust, but I

2 can't remember.

3 Q If we could turn now to Paragraph 36

4 which says that you "did not notify Crews

5 when her legal fees exceeded $20,000." This

6 is a similar thing. I'm just trying to

7 understand whether we have a factual dispute

8 on that paragraph or not. Is it perhaps a

9 wording issue?

10 A Well, it could be. I mean --

11 Q At the time?

12 A What does "immediately" mean? At

13 the time that it went to $20,100, was she

14 notified at that point? No, she was not.

15 I'm looking at my answer. "She

16 informed Crews that her legal fees exceeded"

17 -- yeah. So you see when she was notified.

18 She had gone $4,000 over, and at that point

19 in time she was notified

20 Q So it is accurate to say that at the

21 time your invoice exceeded $20,000, on that

22 day or that week, Ms. Crews was not notified?

23 A Yeah, and that would be standard.

24 None of my clients would know where they are

25 unless I actually -- I mean, you have to

97

1 imagine, if I'm sitting in front of my

2 billing software, which I do not do on a

3 daily basis. I can't tell you day-to-day

4 where each client is because -- no one looks

5 at running tallies. So that is correct.

6 Q Did Ms. Crews expressed to you at

7 the outset of the representation that one of

8 her primary goals was to maintain the marital

9 residence?

10 A She expressed to me -- yeah, I think

11 that's a fair assessment. They had numerous

12 pieces of real property and she was most

13 interested in maintaining the marital

14 residence on the condition that it could be

15 refinanced. She knew in advance there was no

16 way that -- let me -- I want to speak

17 accurately.

18 When you are a spouse and you want

19 the -- no, I remember what it was. I

20 remember what it was.

21 When you are a spouse and you want

22 the residence -- you want it, you've got kids

23 or what have you -- there's a couple of ways

24 of getting it, but usually the only way you

25 can get it is see if you can refinance. And

98

1 she had very bad credit.

2 So that's absolutely correct that she

3 did want to maintain the marital residence,

4 but it was on the condition that her husband

5 continued to pay the mortgage.

6 In other words, that the mortgage

7 would continue to remain in his name. So

8 that was what she was looking for, and that

9 was exactly what her husband refused to do.

10 Which most spouses would.

11 Q And I apologize. I may have missed

12 this. Did you say whether Ms. Crews and her

13 husband owned any other property?

14 A They did. They had quite a bit.

15 The estate was quite extensive. Yeah, they

16 did.

17 Q Was there a reason that the deed of

18 trust securing your fee was on the marital

19 residence as opposed to some other property?

20 A Yeah, there absolutely was. You can

21 only clearly put a deed of trust on something

22 where you know you have enough equity to

23 cover it. The remaining properties that they

24 owned were valuable. One, I think as it

25 turned out, was hugely valuable. But -- if I

99

1 may briefly tell you the problems with --

2 Q Yes.

3 A There were two lots that were each

4 -- or maybe it was four lots across the

5 street from the commercial building that was

6 really valuable. And those were each

7 purchased for about $20,000, if I'm not

8 mistaken. $20,000, $25,000. The ultimate

9 goal was to use them for parking for the

10 commercial building on Rosemary Street.

11 There was some sort of ordinance

12 issue with the Town of Chapel Hill that put

13 the value, the future value of those

14 properties in question. There was not enough

15 equity there on any one of the individual

16 four lots for me to put a $20,000 deed of

17 trust. So those were out.

18 After that, the other piece of

19 property that they owned that had the most

20 value in the estate was the commercial

21 building. There was a marital interest in

22 there that was substantial, and Judge

23 Anderson was our judge and he recognized that

24 on numerous occasions. But the problem was,

25 is that Mr. Edwards owned that piece of

100

1 property before they got married and he never

2 deeded it to her. So I couldn't put the note

3 -- and we talked about it, you know, at

4 length.

5 And I said, we're going to do this,

6 and she was desperate for -- well, I don't

7 want to say desperate, but I know that she

8 had seen numerous other attorneys and -- so

9 we had a long talk about how we were going to

10 do this and we decided that it had to go on

11 the marital residence. There was no other

12 place for it to go.

13 Q How did you arrive at the $20,000

14 figure?

15 A What I have found in my own

16 experience being a family law attorney is that

17 in -- ultimately in illegal fees in a

18 somewhat -- maybe not complicated but in a

19 case involving equitable distribution, it is

20 not unusual for each spouse to spend about 5

21 percent in legal fees on the total value of

22 the marital estate.

23 So if you think about it, if you

24 have a million dollar marital estate, and

25 you've looking at $100,000 in legal fees to

101

1 get that divided up -- are we talking spousal

2 support, child -- that's another issue.

3 So then you look at an average, that

4 each spouse will be paying about $50,000.

5 And if I'm not mistaken in this case the

6 value of the marital estate, the commercial

7 building was at the time I think $600,000 --

8 I'm sure now what happened was they ended up

9 putting up buildings on either side. I'm

10 sure now it's worth way more than that. But

11 that's how I arrived at that number.

12 Q As an estimate of --

13 A Yeah. Oh, definitely as an

14 estimate. And, of course, you have to tell

15 your clients that you don't know what

16 opposing counsel is going to do. And when I

17 began representing her, Lunsford Long was

18 opposing counsel.

19 Q Was Lunsford already in the case

20 when you --

21 A Yes, he was. He represented Mr.

22 Edwards.

23 Q And the Klein case had been pending

24 for some time?

25 A And he represented Mr. Klein.

102

1 Q Did you anticipate that Ms. Crews'

2 case would take longer because Lunsford was

3 involved?

4 A I anticipated that it would cost

5 more because Lunsford was involved. Possibly

6 take longer. We had a different judge, so I

7 had more hope in Joanna's case that there

8 would be a just result and that the law would

9 be followed.

10 Q Did you factor that increased cost

11 into the amount of the promissory note that

12 she issued to you?

13 A No.

14 Q Ms. Crews indicated to you that she

15 really didn't have money to pay her fees,

16 right? That's why you made this arrangement?

17 A Correct. Laura Irwin was her former

18 counsel, and she had written checks to Laura

19 and bounced them. And after she bounced the

20 second check, Laura fired her.

21 Q When you were explaining your fee

22 agreement to Ms. Crews, what did you tell her

23 would happen when the amount of your fees

24 exceeded the amount under the note?

25 A I can't remember.

103

1 Q Have you had this arrangement with

2 other clients?

3 A No. Kathy and Joanna, that's all.

4 The only two I've ever done it with.

5 Q Do you remember what you told Kathy

6 would happen after her fees exceeded the

7 amount the note?

8 A No, I didn't. What probably -- what

9 I probably told them is that I would hang in

10 there with them until the end and that they

11 would pay me ultimately out of the final

12 settlement.

13 Now, I think that from my own

14 experience that's what lots of family law

15 attorneys do. We get stuck in the case and

16 then you've got your time commitment. You

17 can either fire the client, discharge the

18 client, or you just kind of -- you know, you

19 hang in there until the end.

20 Q Well, it's alleged in the complaint,

21 and you admitted --

22 A Uh-huh (yes).

23 Q -- that in August of 2006 you told

24 Ms. Crews that if you -- if she wanted you to

25 represent her further she would need to pay

104

1 an additional retainer of $2,000.

2 A Uh-huh (yes).

3 Q First of all, what do you mean by

4 additional retainer?

5 A What do I mean by additional

6 retainer. That she -- well, probably at that

7 point it would have been more fair to have

8 said -- I'm trying to think in August -- when

9 did I tell her that she had gone over the 20?

10 Q I believe it was roughly

11 simultaneously with that.

12 A Yeah, yeah, it's kind of hard to

13 know with the timing, but what -- basically

14 what happened with Joanna is, she had really

15 unrealistic expectations of how the case would

16 be resolved, and she was absolutely adamant

17 that her husband would continue to pay the

18 mortgage, and I knew Judge Anderson was not

19 going to order her husband to continue paying

20 that mortgage.

21 And so what happens is, what Judge

22 Anderson was going to order was that the

23 house was going to be sold. So at that point

24 in time I know and my paralegal knew that --

25 it was -- she was just very, very difficult

105

1 to deal with. And I saw the case dragging on

2 for a very long period of time because of her.

3 And so whereas I just got done

4 saying that my normal protocol is to try to

5 hang in there, I knew with her there would

6 never be an end. So I did want her to pay

7 the $2,000 because we had gone over the 20.

8 I wanted her to, you know -- and if that

9 resulted in her discharging me, I mean,

10 there's so much going on in your average

11 family law case where you're not only

12 dealing, you know, with all the opposing

13 counsel and the opposing party, but you've

14 got your client and their own emotional

15 issues that you are trying to deal with. And

16 I just knew I think by that point in time --

17 I mean, I wasn't trying to, you know, "pay

18 me" and I'm penalizing you; but it was kind

19 of like when they -- the downside of this is

20 when they don't pay you, in a sense it

21 becomes funny money. So, "Oh, we'll just

22 litigate and litigate and I'll never settle

23 'til the cows come home" because they haven't

24 paid you.

25 Q And Ms. Crews did not pay you that

106

1 additional $2,000 --

2 A No, no, she did not.

3 Q If you would just look at Exhibit

4 408, and I hate the way e-mails print out

5 because you have to start at the back and

6 work your way to the front.

7 A Let me start the bottom. [Witness

8 Views Document].

9 Q So is this e-mail on August 29th from

10 you to Joanna --

11 A Yes, yes, it is. Yes.

12 Q This is where you told her that she

13 would need to pay $2,000 --

14 A Yes.

15 Q -- and pay every month --

16 A Yes.

17 Q And was that a condition for you

18 continuing to represent her?

19 A I think at that point, yes, it was

20 because I realize that her emotional issues

21 were such that if she wasn't going to pay me

22 I was beginning to realize -- I think I'm a

23 pretty good attorney, but even this one I

24 didn't think I could settle.

25 I mean, we were in court a full

107

1 afternoon with Judge Anderson staring at her.

2 At one point he just put his head down on the

3 desk because everybody I think was getting

4 very frustrated. And, yeah, I was basically

5 telling her, "You need to start putting some

6 money up."

7 Q If you would look at Exhibit 412, I

8 just want to confirm that this is your

9 invoice for your services for Ms. Crews.

10 A Yes, it appears to be, unless

11 someone has falsified it, which I doubt.

12 Q I just wanted to confirm that

13 because I believe that my office got it from

14 the fee dispute file.

15 A Yeah. Uh-huh (yes). That's fine.

16 Q Then I'm looking at Paragraph 40 of

17 the complaint and your answer.

18 A Uh-huh (yes).

19 Q This is about the item in your

20 invoice for a day in court at which you

21 withdrew from your representation.

22 A Correct.

23 Q And in your answer you said that

24 there were other matters concerning the case

25 addressed by the court on that day. Can you

108

1 tell me what those matters were?

2 A Sure. And in fact, if we had a

3 transcript, which we can probably order, that

4 would give us a really good indication of

5 what happened on that day.

6 I did not feel good about

7 withdrawing from Joanna's case. Opposing

8 counsel, who was different by that time, I

9 sensed that he was going to try to take

10 advantage of her.

11 So we were on that morning for me to

12 withdraw, I'm trying to remember if there was

13 anything else, and at the call of the case I

14 think I stood up, and Judge Anderson knew

15 because he had been at every hearing, and he

16 knew what I was dealing with. I must have

17 said that I was there to withdraw, and

18 probably said something to the effect that it

19 was a difficult situation or something like

20 that. I think I was giving him a little

21 signal like, "I've got to get out, but I'm

22 trying to figure out the best way to do this."

23 So what Judge Anderson -- there was

24 another attorney in the courtroom, I can't

25 remember her name, she's from Durham, but he

109

1 asked me to go in the back room with the

2 other attorney -- I don't think Joanna was

3 there -- yeah, he asked me to go in the back

4 room with the other attorney and to talk to

5 her for a while to explain to her the

6 dynamics of the case and what was going on.

7 And then he asked the other attorney to go

8 talk to Joanna. He wanted a little

9 friend-of-the-court situation to just get a

10 sense. I know he had seen me put in a

11 tremendous amount of work in the case, and I

12 think he was just trying to figure out what

13 was going on.

14 So we were in court for a couple of

15 hours and we had that, and then she reported

16 back to the court. But then after that, even

17 when he allowed me to withdraw -- and she

18 stood up in court and she said she felt

19 because -- I don't know if she said Joanna's

20 emotional issues, but she did say something

21 to that effect, that there was just not going

22 to be a meeting of the minds anymore between

23 Joanna and I.

24 But then even after that I felt

25 obligated to stay on in court because

110

1 opposing counsel had put something on the

2 calendar and he tried to proceed forward on

3 child custody.

4 And then as a friend of the court I

5 told Judge Anderson that I didn't want to

6 leave her unrepresented. So I stood next to

7 her. I continued to represent her. And the

8 other attorney tried to proceed forward and I

9 argued that that was not appropriate. I

10 think there had been a notice issue.

11 And so it was just not "Here's my

12 motion to withdraw." There was a last effort

13 using Judge Anderson to see if Joanna and I

14 could -- you know, that there was a way that

15 I could represent her going forward.

16 I had concerns about her emotional

17 issues but, you know, I guess he wanted to

18 see if another attorney did as well. And she

19 did after she listened to her.

20 Q Now, before that hearing hadn't Ms.

21 Crews sent you an e-mail saying don't

22 represent me at the hearing?

23 A Yes, I believe she had said

24 something like that. It was a kind of -- how

25 do you want to say it? Kind of -- I don't

111

1 want to put her like in a -- I think she was

2 being proud. I think that was apparent at

3 the hearing. She was kind of keeping a stiff

4 upper lip, but I was really, really concerned.

5 And then -- you know, it's not

6 reflected on this invoice, but I also have I

7 think the invoices because I was looking at

8 them not too long ago, but even after this

9 was over I continued -- it was not ex parte,

10 I know that, I would be very careful -- but

11 to communicate with Judge Anderson about the

12 case because even after this was over I spent

13 not 100 hours, that would be an exaggeration,

14 50 hours pursuing the attorney's fee award.

15 He had given me -- awarded her some

16 attorney's fees, and if I got those, it

17 reduced what she owed me.

18 I mean, I could have walked away

19 from those easily. But I felt that it was

20 right; Judge Anderson had awarded them.

21 He awarded them incorrectly, that was

22 the deal. It was so confusing. And so we

23 all went around -- we got the clerks involved

24 and it just went around and around and

25 around. And, I mean, maybe four or five

112

1 months later, but after tons and tons of

2 work, I got the attorney's fee entered

3 properly, working with Judge Anderson and

4 paid by Mr. Edwards.

5 Q I think I have another question

6 about Exhibit 408. On Page 2, did you say in

7 this e-mail, "I will do no further work on

8 your case until I hear back from you"?

9 A Oh, I'm sorry. Page 2.

10 Q Page 2 of Exhibit 408.

11 A [Witness Views Documents] Okay, page

12 2. [Witness Views Documents] Okay. Well,

13 it looks like I did. What's the date of

14 this? August 29th? Okay.

15 Q Based on your invoice, is it correct

16 to assume that you did, in fact, do work

17 after that point?

18 A Well, let's take a look and see what

19 work I did. [Witness Views Documents]

20 MR. WITT: Have you got that

21 date?

22 MS. BANNON: It's Exhibit 412,

23 and I was looking at the end of the

24 invoice.

25 A So August 29th. Do you want me to

113

1 start explaining? Like speaking with J.

2 Morris? Anything here?

3 Q Sure.

4 A Sure. J. Morris. That was

5 important. He was -- he had something to do

6 with one of the pieces of the real estate.

7 Well, here it says I'm beginning to prepare

8 the order, and that's the order I said. J.

9 Morris, I think I was just returning his

10 phone call. And it was really important and

11 it something to do with one of the pieces of

12 real estate and I can't remember which one.

13 And then it looks to me like we're

14 pretty much at the end.

15 Q And the order you were finalizing,

16 what order was that?

17 A There was quite a few, and I don't

18 really know.

19 Q It says on here, "Prepare notice of

20 hearing for motion to compel." Were you

21 noticing a future hearing?

22 A Where are you, Carmen, I'm sorry?

23 Q September 7th.

24 A September 7th. "Prepare notice of

25 hearing for motion to compel and transmit to

114

1 clerk of court and opposing party." I want

2 to believe that what is possible, but please,

3 I don't know, it may have been the order that

4 he entered that day was for the attorney's

5 fees, may have been, and that the order to

6 compel would then have been -- I mean a

7 motion to compel -- motion to compel? No,

8 that would have been a motion for contempt.

9 It's not discovery. I'd have to go back and

10 look in the file and see.

11 Q That's okay. Let's look the Fifth

12 Claim.

13 A Sure.

14 Q I just want to confirm that Exhibit

15 501 is the e-mail that's at issue in the

16 Fifth Claim.

17 A Yes. Again, unless I -- oh, this is

18 not me. Whoa, whoa, whoa.

19 MR. WITT: Look at the date.

20 Q Obviously it was forwarded to me.

21 A Yes, this was written -- I see it

22 says at the bottom "Paid for by" -- yeah,

23 yeah. Uh-huh (yes).

24 MR. WITT: And again, her

25 question is, that's the e-mail we're

115

1 talking about -- the Fifth Claim --

2 WITNESS: Oh. Oh. I'm so

3 sorry. Okay. Hold on.

4 A [Witness Views Document] Sent an

5 e-mail to numerous persons -- yeah. Yes, it

6 is the same e-mail. Yeah.

7 Q In your answer to Paragraph 46 you

8 admit that you attached what you have

9 provided to the State Bar.

10 A Uh-huh (yes).

11 Q Did you also attach what the State

12 Bar had sent to you?

13 A I do not believe I did.

14 Q If you'll look at Exhibit 502,

15 there's no body to that e-mail, but the

16 "Subject" line of the e-mail is "Attachments,"

17 plural.

18 A Uh-huh (yes).

19 Q Is it your recollection that there

20 was more than one attachment?

21 A My recollection is that there were two

22 attachments. My recollection is that there

23 were two attachments.

24 Q If you look at Exhibit 503, and the

25 first page isn't of much help, but if you

116

1 look at Pages 2 and 3, do those appear to be

2 documents from the State Bar to you?

3 A Yes.

4 Q And have they been redacted?

5 A Oh, yes, yes, I misspoke. This is

6 what I sent. Is it? I'd have to go back and

7 look on my computer.

8 Q Maybe you can do that after the

9 deposition in order for us to confirm --

10 A Sure, clarify what were in those

11 attachments. Absolutely.

12 Q That may be all I needed to ask.

13 A Okay.

14 Q Let me just look quickly. Well,

15 actually on Pages 4 and 5 of Exhibit 503 --

16 A And I can see here, Carmen, that you

17 have alleged that there was a letter from the

18 State Bar, and I admit that. So I don't

19 think I need to --

20 Q On Paragraph 46?

21 A Yes.

22 MR. WITT: We'll just double

23 check.

24 A Yes. I'll double check, but, yeah,

25 I had forgotten what the attachments were.

117

1 Q Now, Paragraph 47 alleges that there

2 were disparaging statements about one client's

3 financial situation and emotional health. I

4 can't really tell whether that's admitted or

5 denied. And I'm looking on Pages 4 and 5.

6 MR. WITT: Exhibit 503?

7 MS. BANNON: Yes.

8 A Right.

9 Q And specifically I guess I'm looking

10 at Paragraph 3 where it says, "Her first

11 attorney stopped representing her after Ms.

12 C. paid using bad checks," and then in

13 Paragraph 6, "I stopped representing Ms. C.

14 after it became clear to me and my paralegal

15 that her emotional problems prevented us from

16 negotiating a settlement."

17 A Uh-huh (yes). Is there another --

18 Q If you keep going to --

19 A Yeah, yeah, I just want to -- I'm

20 trying to go down memory lane here. What

21 else do you have was attached to that e-mail?

22 Q The way I understand it is that

23 Exhibits 503 --

24 A Okay.

25 Q -- and 504 are the same except they

118

1 vary depending on the print settings for PDF

2 documents. So if you take Attachment 1 and

3 your print settings are --

4 A No, forget that, but let me just ask

5 you a question. In your understanding, what

6 are the two attachments that were attached to

7 that e-mail? You're saying --

8 Q Well, it depends on how you print

9 them.

10 A No, I'm not getting into the

11 redacting part. I'm just saying the

12 documents that made up Attachment 1 versus 2.

13 Q Okay. My understanding is that

14 Exhibit 504 is one attachment --

15 A Okay, very good.

16 Q And Exhibit 505 is another attachment.

17 A No, that's a repeat.

18 MR. WITT: Just for purposes of

19 the record, just so that I

20 understand it, it is -- because it

21 sounds to me like there's confusion

22 between the question, answer, and

23 everybody as far as what the

24 attachments are? Is that fair to

25 say?

119

1 WITNESS: I need to confirm what

2 those attachments were.

3 MR. WITT: That were attached to

4 Exhibit 502 and 503.

5 WITNESS: I need to confirm

6 that, yeah.

7 MR. WITT: Because I don't think

8 anybody really knows -- seems like

9 everybody is kind of talking over

10 each other and not really

11 understanding what the question is or

12 what the attachment -- I think she

13 wanted your impression of what was,

14 and I think she doesn't have a good

15 enough understanding of hers.

16 MS. BANNON: If we can just make

17 some inquiry after this and figure

18 that out because that would certainly

19 be a boring and tedious line of

20 inquiry for the panel.

21 WITNESS: That's fine.

22 Q I think we can get into the Sixth

23 Claim here. In your response -- I'm sorry,

24 your answer to Paragraph 55, you reference an

25 October 8th, 2008 letter. I just want to

120

1 confirm that Exhibit 602 is the letter that

2 you referenced in your answer.

3 A [Witness Views Document] Yes.

4 Q And this was a settlement letter that

5 you sent to opposing counsel in the McManaway

6 case?

7 A Yes. Judge Anderson told us to

8 settle, so I sent the letter.

9 Q Can you explain to me what the

10 difference is between the two proposed

11 settlement options in this letter?

12 A Sure. One involves custody, which is

13 recognized in the State of North Carolina.

14 The other involved the proposition that we

15 would do an open adoption, and open adoptions

16 are not recognized in the State of North

17 Carolina. So I knew that we were going to

18 have to do that in some other state. I

19 didn't know what state.

20 I believe Nevada would have been one

21 option. Florida is another option. We could

22 have looked around the country, but we had to

23 find a state that recognizes and enforces

24 open adoptions.

25 And because I knew that the custody

121

1 undertaking would be relatively inexpensive

2 in terms of the legal fees associated, I gave

3 one figure for that. But because I knew that

4 Emily was going to have to pay more legal

5 fees to do something out of state, I gave a

6 settlement offer for that.

7 Q I notice in response to the

8 allegations in the complaint you've denied the

9 way that these two options are characterized

10 in the complaint, I gather. And if you could

11 explain why, that would be helpful.

12 A Sure. Well, Emily is clearly not

13 consenting to the adoption of her son for

14 $20,000. Emily is suing Donna Davis and Leigh

15 Peek and the Mormon Church for effectively

16 kidnapping her child from the State of Nevada

17 and bringing the child here and putting the

18 child in the home of a Mormon couple who are

19 strangers to the child. And Emily is suing

20 those parties for $7 million.

21 And that appeal was also heard by

22 the same panel on Wednesday that heard her

23 allegation that Judge Buckner had improperly

24 entered a court order.

25 So to the extent that your allegation

122

1 is that Emily is -- the difference, the

2 $20,000 difference there, is because she's

3 selling her consent. That would be

4 completely untrue.

5 Q I'm looking specifically at

6 Paragraphs 56 and 57 which are simply an

7 effort to characterize what is set forth in

8 your letter at Exhibit 602. So if you could

9 tell me in what way the allegation in

10 Paragraph 56 does not reflecting what is

11 proposed under Option A in your letter, that

12 would be helpful.

13 A It's the words "in exchange," Carmen.

14 In allegation 57, that she "would consent to

15 the opposing parties' adoption of her son, in

16 exchange for $75,000 payment."

17 The deal was that she would not

18 bring her $7 million lawsuit against them, and

19 the differential between the two offers was

20 because Donna and Leigh certainly weren't

21 going to pay her legal fees, so I had to put

22 enough money in there -- someone would have

23 to pay the legal fees. And so that's the

24 differential.

25 But I knew we couldn't do it -- I

123

1 mean, you probably know that entering a

2 custody order is a far different matter than

3 doing the paperwork in a different state so

4 that an open adoption would be legal and

5 enforceable down the road.

6 Q So am I correct in that it's the "in

7 exchange for" piece --

8 A Sure. Sure. Actually, what happened

9 was that I had confronted Donna and Leigh and

10 had told them that they had violated the

11 adoption statutes and had actually committed a

12 misdemeanor by allowing the Branches to pay

13 for the Bohannons' legal expenses. And I

14 told Donna that I believe in her conference

15 room at her office. And as soon as that

16 registered in their minds, that they were

17 possibly going to be found liable for that,

18 they flipped the story and went to the Bar

19 and said that we were trying to sell the

20 child.

21 The reality is, Carmen, their clients

22 were trying to buy the child.

23 Q Did you report to the State Bar that

24 you believed that --

25 A I absolutely have reported this to

124

1 the State Bar, as has Emily McManaway.

2 Q The specific issue of the payment --

3 A Absolutely. I said that Leigh Peek

4 had committed a Class 1 misdemeanor, yeah.

5 Q Paragraph 58 alleges that the only

6 substantive difference between the two

7 settlement options was that one provided for

8 legal and physical custody, while the other

9 provided for adoption. And that is denied.

10 So can you tell me what the other substantive

11 differences are between the settlement

12 options you proposed in this letter?

13 A The legal fee is the issue. It just

14 didn't address that someone was going to have

15 to --

16 Q Where in this letter do you mention

17 payment of legal fees?

18 A I don't, but I would not unless I

19 was asking Donna or Leigh to pay for the

20 legal fees. If I was expecting them to, I

21 certainly would have inserted that. But at

22 this point in time -- I mean, that was not

23 even on the table. If I had counsel on the

24 other side that we had not accused of

25 kidnapping the child and I had already

125

1 informed them that Emily was going to bring a

2 lawsuit against them, I mean, it would have

3 been ludicrous for me to say, "Oh, and by the

4 way, would your clients --" I mean, you have

5 to remember where we are in this case. I've

6 already filed a Rule 11 motion for sections

7 against Donna Davis in Surry County District

8 Court, and I've asked the court to sanction

9 her to pay $50,000 for filing an illegal

10 adoption petition.

11 We didn't get there because Donna got

12 extremely nervous and backed out and dismissed

13 the petition. But what I did get out of that

14 was that her clients did end up paying Emily

15 McManaway's legal fees in that portion. So I

16 knew there was no question that they were

17 going to do that again. So I didn't even

18 address it.

19 Q You knew there was no question that

20 who was going to do what again? I'm sorry?

21 A That they would volunteer to pay her

22 legal fees.

23 Q The parties or the lawyers?

24 A The parties.

25 Q Did I understand correctly that you

126

1 allege that Attorneys Peek and Davis

2 participated in a kidnapping?

3 A Participated in the kidnapping.

4 Donna Davis absolutely not. Until the Court

5 of Appeals rules on the oral arguments that

6 were heard on Wednesday, I'm not exactly sure

7 how that's going to be phrased.

8 What I believe the Court of Appeals

9 is going to rule is that Leigh Peek used an

10 invalid court order, that Leigh Peek

11 instructed her clients to use an invalid

12 court order that she prepared to remove the

13 child from the state of Nevada, and that they

14 used phoney court order again in Orange

15 County to obtain UCC JEA jurisdiction.

16 I certainly did receive that

17 indication because the court, the panel asked

18 Leigh finally if she would admit that the

19 court order was invalid, and she did admit

20 that it was.

21 Q When you say "phony," you don't mean

22 that the order was forged, do you?

23 A I don't. No. I should be more

24 clear with my -- Leigh never filed a

25 complaint. She drew up a document -- well,

127

1 it's not forged, but it's about as -- kind of

2 phony -- she drew up a document, she called

3 it a court order. There was never a civil

4 action initiated. She took it to a judge

5 when none of the parties was present, had the

6 judge sign it, knew all along that was not a

7 valid court order, and then used it for the

8 next two years in various legal proceedings,

9 always maintaining in all the pleadings that

10 it was a valid court order. It was not.

11 But, again, I don't -- until the

12 Court of Appeals rules on those two appeals,

13 it's hard to say.

14 Q So what was in it for Ms. Peek to do

15 that?

16 A She's a Mormon. I don't know if

17 you've read the briefs or know much about the

18 lawsuit. She's a Mormon and it's a big deal

19 in the Mormon Church to take kids out of -- I

20 mean, let me put it this way. This is not

21 the first time the Mormon Church has been

22 accused of doing something like this. You

23 can find other stories on the Internet, but

24 Mormons believe that if you take kids that

25 are non-Mormon and you adopt them by Mormon

128

1 families, then there is a ceremony in the

2 temple and it's is called sealing the children

3 -- sealing, s-e-a-l-i-n-g, and they seal the

4 children to their adoptive parents and that

5 means that in the afterlife these kids, even

6 though they might be black, hispanic or

7 whatever, my client's child, a non-practicing

8 Mormon child, that child will be a Mormon for

9 all eternity.

10 Q So you believe Ms. Peek engaged in

11 this alleged misconduct in order to recruit

12 more Mormons?

13 A No, I believe that Leigh did it

14 because the people that she was helping are

15 members of her church and -- I mean, I don't

16 know exactly her motivation. I think

17 partially part of it was, you know, religious.

18 Do I believe that she engaged in

19 misconduct? Oh, yeah. Do I think the panel

20 thought she engaged in misconduct? Yeah.

21 Q You mentioned that the difference in

22 the figures stated in these settlement

23 options has to do with the costs of obtaining

24 an open adoption in another jurisdiction?

25 A Uh-huh (yes).

129

1 Q Did you mention that in this letter?

2 A No, but Donna is a family law

3 specialist, and when we were in chambers with

4 Judge Anderson and we were talking about the

5 case and Judge Anderson was encouraging us to

6 try to find some settlement, at that point in

7 time in chambers the open adoption was

8 discussed.

9 Let me just remember, because I know

10 the date that -- yeah. This came after we

11 had the chambers conference with Judge

12 Anderson, and in that conference I told him

13 that, you know, the only thing my client

14 would ever, ever be willing to contemplate was

15 an open adoption. And we discussed -- you

16 know, Donna knows this. She's a family law

17 specialist. Everybody knows it; you can't do

18 open adoptions in North Carolina.

19 Q And you said in your answer to

20 Paragraph 59 that in the second settlement

21 option that you proposed the amount for

22 attorney's fees and expenses was increased by

23 $20,000 to defray the estimate costs of

24 attorney fees for obtaining an open adoption?

25 A Uh-huh (yes).

130

1 Q Why would you estimate those costs?

2 A Okay. Well, let's see. Who is

3 paying those costs? I'm not allowed to ask

4 questions, so I'll ask myself a rhetorical

5 question. Who is paying these costs? Not my

6 client, right? Someone on the other side.

7 Okay.

8 So a bunch of people on the other

9 side who really, really are mad at my client,

10 so I'm not going to them at the end and say,

11 "Oh, by the way, here's the bill for

12 $24,372," blah, blah, blah. Because we

13 didn't have that kind of a relationship. So

14 all I could do was estimate and get the money

15 up front and, you know, hope that it covered

16 it.

17 Q Would it have been possible for your

18 client to have a contract with the opposing

19 parties that simply said the opposing party

20 would pay all legal fees associated with

21 making this happen?

22 A Yeah, and they never would have

23 agreed to it. I was just trying to just do

24 what Judge Anderson had told us to do, try to

25 find a settlement.

131

1 Q Is it your position that these

2 estimated costs of doing the out-of-state

3 process were fees that are authorized by

4 statute in connection with adoptions?

5 A Oh, absolutely. Absolutely. In

6 fact, I think before -- right about the time

7 I did this, before, I spoke to Janet Mason

8 over at the School of Government and we

9 discussed it, not getting so much into the

10 fees, but just the whole concept of -- I call

11 her a lot in my cases. I find her to be a

12 very valuable resource. Well, not a lot, but

13 I use her. I mean, some people never use the

14 School of Government. I'm a big fan of using

15 them.

16 And we discussed whether or not we

17 could do open adoption and the whole thing.

18 Well, I knew you couldn't do it; we discussed

19 the enforceability of, like, if you did it

20 out of state and things like that.

21 Q Okay. Let's move on to Claim Seven.

22 A Uh-huh (yes).

23 Q And there are very few exhibits

24 associated with this. I just want to confirm

25 that -- I'm sorry, I don't have the

132

1 attachments to your answer with me, but that

2 702 is the transcript that --

3 A Yes, that appears to be.

4 MR. WITT: Appears to be in a

5 different format.

6 WITNESS: Oh, well that's

7 interesting. Oh, we probably need

8 to do a little line by line -- they

9 ordered it from Dennis, but I ordered

10 it because it just went up in the

11 Record on Appeal from -- that's my

12 court reporter. This is their court

13 reporter.

14 MR. WITT: We have two separate

15 transcripts, obviously.

16 MS. BANNON: This -- March 11th?

17 MR. WITT: Of the same thing,

18 yeah. Two court reporters in there?

19 WITNESS: Yes, yes. This is the

20 exact -- well, I don't know if it's

21 the exact same.

22 MR. WITT: The court reporter

23 that is attached to our original

24 answer, Exhibit A, is the one from

25 Margaret M. Powell.

133

1 WITNESS: Yes.

2 MR. WITT: And the one that is

3 Exhibit 702 is Dennis R. Coley, Jr.

4 So what I think that I'll suggest is

5 rather than going line item by line

6 item, why don't we first look

7 through it sometime other than in

8 the deposition and see whether there

9 are any differences and we can work

10 out -- I'm pretty certain we'll

11 figure out a way to work out the

12 transcript.

13 MS. BANNON: I agree.

14 Q I just want to make sure I

15 understand, when you say "your court

16 reporter," was she transcribing off the same

17 recording?

18 A No, I'm sure not. I order it -- we

19 have so many problems with recordings coming

20 out of Orange County. It's scandalous. So I

21 would have gone to the clerk and gotten it on

22 CD, hopefully the whole thing. That case

23 just went up on appeal. This is the case

24 that the panel just heard. So that was the

25 one I had access to.

134

1 Then what happened was, one of the

2 judges or whoever filed this grievance,

3 whatever, they got another CD from the clerk

4 and took that to Dennis. So we're not

5 working off the same thing, and it's not

6 unusual that there are differences. Someone

7 might have a better recording, better

8 equipment. So I agree with Dudley that we

9 need to take some time to compare.

10 Q That's fine.

11 MR. WITT: And by the Dennis

12 one, you're referring to Exhibit 702,

13 Dennis Coley.

14 WITNESS: To theirs, yes.

15 Q I just want it be clear. Because

16 we're in District Court, there is just a

17 recording, right?

18 A There is one piece of machinery

19 recording from which millions of CDs can be

20 made, yeah.

21 Q Okay. We have covered quite a bit

22 of this this morning, but I would like to ask

23 about -- well, in the exhibit book, we can

24 just work off of this so we will be looking

25 at the same thing --

135

1 A Uh-huh (yes).

2 Q On page 6 of Exhibit 702 --

3 MR. WITT: The only other thing

4 I think I just want to have the

5 record reflect, if that exhibit ends

6 up being different than this exhibit,

7 I think we'll have to work through

8 which one is the correct exhibit, as

9 far as the language of that.

10 MS. BANNON: That's fine.

11 MR. WITT: But with that being

12 said, go ahead and we'll work off

13 the one in 702.

14 MS. BANNON: Okay.

15 Q I'm looking --

16 A So we're working off of theirs for

17 now.

18 MR. WITT: Right.

19 A And what page are you on, Carmen?

20 Q Six.

21 A And is it six, by these little hand

22 numbers?

23 Q Yes.

24 A Yes.

25 Q At Lines 14 through 19, you're

136

1 making some comments to the Court, including

2 saying, "I did tell Jimmy Woodall that the

3 word on the street was that Your Honor was

4 unfortunately using illicit drugs."

5 A Yes.

6 Q What was your factual basis for

7 making that statement?

8 A I went to a CLE and I was having

9 lunch and one of the attorneys there, Allison

10 Grine, and I -- we were at a group at a

11 table, a bunch of us, and they were asking --

12 the campaign still going on. I think they

13 were asking how the campaign was going. And

14 I probably, you know, started telling them

15 about that -- how all the grievances were

16 being filed, they were all coming after me,

17 they didn't want the corruption exposed, and

18 the topic of Judge Buckner's behavior came

19 up. And I think Allison and I certainly, and

20 I can't remember if the other attorneys were

21 talking about his erratic behavior in the

22 courtroom, his outbursts, his just

23 out-of-control behavior. And Allison turned

24 to me and said -- well, I knew Allison had

25 practiced in front of him as a public

137

1 defender in Chatham County for a number of

2 years. And she turned to me and said that

3 the word -- I don't think she used that

4 vernacular, "the word on the street;" but it

5 was common knowledge is the man is doing drugs.

6 Q And what is Allison's last name?

7 A Grine. G-r-i-n-e.

8 Q So you had recently been told --

9 A Yes.

10 Q -- that word on the street was that

11 the judge --

12 A Yes.

13 Q Did you have any other basis for

14 making that statement?

15 A Yes, his behavior. He behaves --

16 again, maybe this is -- I'm not a

17 psychologist, but I don't know if he has all

18 addictive behavior or just the sexual

19 addiction, but he behaves as if he has some

20 sort of substance abuse behavior.

21 Again, Carmen, just go talk to

22 people in Hillsborough and they will tell you.

23 It's kind of like where everybody gets used

24 to the family spoiled brat so nobody talks

25 about the brat in the corner.

138

1 Well, that's -- explosive temper in

2 the courtroom. There will be days when he

3 will start lecturing someone and the lecture

4 will just go on and on and on. There's other

5 days when he'll come into the courtroom and

6 make no contact with anybody. I mean, his

7 behavior is most bizarre.

8 So I would say based on my personal

9 experience, seeing him explode, temper

10 tantrums, and hearing from Allison -- and not

11 only that, when I went to Jimmy, to be

12 honest, I had quite a litany of things that I

13 discussed with him.

14 Q Would you agree that some people

15 have temper flareups even though they don't

16 use drugs?

17 A I think that is entirely possible.

18 I don't know the extent of his mental illness,

19 but I do know that he is severely mentally

20 disturbed and it manifests itself in a

21 variety of different ways.

22 Q I think you said earlier that Judge

23 Anderson has a bit of a temper, correct?

24 A There is a temper, a short fuse; and

25 there is explosive, explosive, erratic,

139

1 out-of-control behavior. And there is a huge

2 difference. And Judge Buckner has one and

3 Judge Anderson as the other.

4 Q And I think we, earlier today, had

5 sufficient conversation about your factual

6 basis for what you said in Lines 19 through

7 23, unless there is something else you wish

8 to add about what your factual basis was for

9 making that statement.

10 A I have nothing to add.

11 Q What motions were before the court

12 this day, March 11th, 2009?

13 A I had a -- Eddie had motion to stay

14 proceedings because one notice of appeal had

15 already been filed. I had a response to

16 Eddie's motion. I had a motion for

17 attorney's fees. I had a motion to continue,

18 and a motion to recuse. I think a second

19 motion to recuse. I think I had filed two in

20 Emily's case.

21 Q To which of those motions were your

22 comments on Pages 14 -- I'm sorry, Lines 14

23 through 23 --

24 A That would definitely be the motion to

25 recuse.

140

1 Q Relevant to that motion?

2 A Yes.

3 Q Were those allegations that you're

4 stating there in open court contained in your

5 motion to recuse?

6 A I can't remember. No, I don't think

7 so. I don't think so. I think I prefaced

8 this by saying that I was not -- my intent

9 was not to embarrass him, my intent was to

10 protect my client from him.

11 Q Do you believe that you had already

12 alleged sufficient basis in your written

13 motion to recuse the judge?

14 A I'd have to go back and look at that

15 motion.

16 Q Did you have any reason to believe

17 you would have filed a motion to recuse the

18 judge that didn't contain sufficient facts to

19 justify that motion?

20 A Oh, I would like to believe that

21 I've never done that.

22 Q Then why didn't you just argue what

23 you had alleged in your written motion?

24 A I can't really answer that. I don't

25 know. Probably, as I had mentioned earlier,

141

1 that it's very difficult when you're trying

2 to represent your clients in such a severely,

3 severely dysfunctional setting.

4 Q Looking at Page 4 of Exhibit 702 at

5 Lines 8 through 11, I notice you say that you

6 had not received a proper notice of hearing.

7 A Correct.

8 Q Nor had he complied with the local

9 rules when he put his motion on the calendar.

10 A That's correct, he didn't.

11 Q Which local rules are you referring

12 to?

13 A The local rule that says that past

14 the -- you're not -- okay, you've got the

15 whole concept of the monthly calendar call.

16 After I believe it is the 14th,

17 let's say about the middle of the month, you

18 are not allowed to calendar anything for the

19 next month's calendar call. Do you know what

20 I mean? There's a cutoff date. Obviously

21 that makes sense because they are printing

22 and you can't be the day before trying to --

23 okay, so we have a cutoff date.

24 And Eddie didn't meet the cutoff date.

25 Probably because Eddie doesn't do a lot in

142

1 Orange County. He does some, but -- and, in

2 fact -- yeah, yeah.

3 Q So are you saying you weren't aware

4 that Mr. Greene had put this case on the

5 calendar call in March?

6 A He put it on late and -- oh, yeah,

7 now it's coming back to me. No, he didn't

8 put it on. He didn't it on.

9 Donna Davis stood up when the case

10 was called on another matter, and in fact I

11 have the transcript, which is more reason for

12 me to believe that he engaged in ex parte

13 communications with Donna. I wasn't at that

14 calendar call. I missed it. That was the

15 snow makeup day one. And when he called the

16 case, Donna stood up -- maybe she was

17 withdrawing, and then she said, "Oh, judge,

18 yeah, yeah, and you remember that other

19 matter." And there's no way he would have

20 known what she was talking about. Just no

21 way, unless she had told him. And what she

22 was referring to was Eddie Greene's motion

23 which had not been properly calendared. So

24 if I'm not mistaken, calendar call was the

25 4th, and what Judge Buckner did was gave them

143

1 a hearing seven days later. And then no one

2 contacted me. They didn't tell me about the

3 hearing.

4 What normally will happen, if you'll

5 listen to calendar calls, is Judge Buckner

6 will say, "And, Eddie, you've got to call

7 Betsy. I'm giving you this date, but you've

8 got to call Betsy." But no one did. Because

9 they -- I would presume they were really

10 hoping I did not show up at that hearing.

11 Q But you did.

12 A I did.

13 Q How did you find out that this

14 hearing was taking place?

15 A I believe -- trying to remember how

16 I found out. I think it was through the

17 clerk. What happened was, I called the

18 morning of the new court date and was going

19 to ask the clerk about the makeup day, and

20 she told me, "Oh, it's today." And I said,

21 "Wow. Wow. Nobody told me."

22 And that had really surprised me that

23 Judge Buckner hadn't contacted me because I

24 had written him another letter asking him for

25 scheduling assistance and I wanted to get

144

1 heard, in fact I think it was on these

2 motions, after calendar call. And he

3 contacted some attorneys directly, I was

4 told, but he didn't contact me and he didn't

5 direct Eddie to tell me. And I think I found

6 out through the clerk. But it was improperly

7 calendared from beginning to end.

8 Q You mention on Page 4 of this

9 transcript that you wanted to have your own

10 court reporter here.

11 A Yeah.

12 Q Why was that?

13 A Because we -- let me think. Why was

14 that? I knew the case was going up on

15 appeal. And we've had disastrous things go

16 wrong with the recordings coming out of

17 District Court. We have wonderful clerks, I

18 think they do their best. But lots of

19 mess-ups. And so it's not unusual for

20 attorneys, when you know your case is going

21 up on appeal, and I had already filed my

22 notice of appeal, to bring in a court

23 reporter to ensure that you're getting a

24 clean crisp transcript.

25 Q Did you end up doing that at any of

145

1 your hearings?

2 A I'm trying to remember. I can't

3 tell you. I don't remember. I've had a lot

4 of hearings over the years.

5 Q I guess I mean from --

6 A Oh, did you mean just in McManaway?

7 Q In 2009, let's say.

8 A I can't speak to that.

9 Q Also on that Page 4, you say -- this

10 is at Line 22, "I feel I've taken every step

11 to protect Your Honor as well as my client."

12 What steps are you referring to that you took

13 to protect the judge?

14 A What steps? I think what I'm trying

15 to say here is that -- oh, I know exactly

16 what I was trying to say.

17 I had gone to Jimmy Woodall on May

18 30th, 2008.

19 Q Well, I want to talk about that, but

20 that might take a little while, so I don't

21 know if we want to wait, stop here or keep

22 going until 1:00?

23 A Let me just finish this up and then

24 we'll -- it's not going to take long.

25 I had gone to Jimmy Woodall in May

146

1 of 2008. Whatever Judge Buckner said here --

2 okay. I went to Jimmy. From that moment on

3 Jimmy told -- spoke to Carl. I believe that

4 Carl spoke to Judge Buckner. I may be wrong.

5 Knowing their former relationship, I was

6 hoping that Carl had spoken to Judge Buckner.

7 From that moment forward, Judge

8 Buckner just started completely violating my

9 client's due process rights, and things just

10 really, really took a bad turn.

11 So I don't know really what I'm

12 trying to say there. Probably what I'm

13 trying to say is that I was surprised that I

14 didn't, you know, confront him sooner.

15 I don't know. I mean, here -- do

16 you see in the one e-mail we have a judge who

17 has recused himself from every single one of

18 my cases. I then go to Jimmy Woodall and

19 tell him, "Jimmy, he's out of control, he's

20 unfit, he's got to come off the bench." And

21 then he turns around and what does he do? He

22 gets back on all my cases. And every one of

23 my clients just -- I mean, I have no choice.

24 It gets to the point where I can't

25 represent anybody anymore in Orange County,

147

1 and that was the intended effect, and that

2 was the effect.

3 Q Didn't Judge Buckner explain during

4 this hearing why he -- maybe not during this

5 hearing, during a hearing --

6 A No, he does. He says that -- yeah,

7 he does. And I have to be perfectly honest,

8 I don't believe him. I'll tell you why I

9 don't believe him. He says that Carl never

10 told him about the conversation with Jimmy.

11 Q Wait, wait. My question was, did

12 Judge Buckner explain why he recused himself

13 from the cases and then reassigned him --

14 commenced hearing them?

15 A Yes.

16 Q And what was that explanation?

17 A His explanation was that after I had,

18 in the Klein matter, gone to the Judicial

19 Standards Commission and had filed a

20 complaint, that once the Judicial Standards

21 Commission issued the letter saying that they

22 believed that the concerns that I had could

23 be addressed on appeal, he said he felt at

24 that point in time he could get back on my

25 cases.

148

1 But what he didn't address was the

2 whole conversation I had with Jimmy, and the

3 fact that I believe he was publicly

4 campaigning against me throughout the

5 judicial campaign.

6 Q Is it your position that any judge

7 who supported your opponent in that campaign

8 had a conflict in all of your cases?

9 A No, it is not my position.

10 Q Then in what way was that relevant

11 to your belief that Judge Buckner should be

12 recused from your cases?

13 A The impression that I got from

14 talking to Carl was not just that he was

15 campaigning against me, but that he was

16 saying, really -- that he was making some

17 improper statements. That was the sense that

18 I got from Carl.

19 Q What kind of improper statements?

20 A I can't -- I can't really. There was

21 nothing -- it was just the sense that I got

22 from speaking to Carl, that Carl sounded --

23 his tone of voice, he sounded disgusted. Not

24 with me, but with what was going on. I got

25 the feeling that Carl knew that I think

149

1 there's something in the judicial code that

2 does not allow judges to campaign publicly

3 for or against other, I think, and that he

4 felt that there was some of that going on.

5 Q Did Judge Fox say to you, "Judge

6 Buckner has said the following"?

7 A No. He said, "Betsy, until this

8 election is over, you've got to file motions

9 to recuse all the judges." That's what he

10 told me; that's what I did.

11 Q Did Judge Fox --

12 A Let me just interject why. I told

13 Judge Fox, I said, "He's going to try to put

14 me in jail, Judge Fox. I know it, because of

15 the criminal contempt charge."

16 I said, "I think he's going to try to put me

17 in jail," and he said, "I don't doubt that."

18 And when he said that, I knew that

19 if that in fact was true that Judge Buckner

20 had no business hearing my cases.

21 Q You mentioned his tone of voice, but

22 did he actually say anything about Judge

23 Buckner's compliance with the judicial canons?

24 A No. He just said that he didn't

25 doubt that Judge Buckner wanted to see me go

150

1 to jail and that I should recuse all the

2 judges.

3 MS. BANNON: Let's take a break.

4 [Lunch Recess - 12:35 p.m. to 1:35

5 p.m.]

6 Q When we left off we were talking

7 about the March 11th hearing in the McManaway

8 case. And specifically about the conversation

9 that you had with Jim Woodall on May 30th,

10 2008. And Jim Woodall is the District

11 Attorney in Orange County?

12 A Uh-huh (yes).

13 Q And why did you approach him?

14 A Because I feel that he is a man of

15 very high integrity and someone who could be

16 trusted.

17 Q Were you seeking advice from Mr.

18 Woodall?

19 A No, I was hoping that he would

20 contact Judge Fox, and he said that he would,

21 and he did. And I was hoping that Carl Fox

22 would contact Judge Buckner, and I was hoping

23 that Judge Buckner would seek help.

24 Q Was the substance of your

25 conversation with Mr. Woodall similar to the

151

1 substance of your conversation with Judge Fox?

2 A No, I don't think so. I think with

3 Judge Fox I was discussing more with him that

4 I thought Judge Buckner was trying to have me

5 jailed during the election, but that was not

6 the nature of my conversation with Jimmy.

7 Q Before you spoke with Mr. Woodall,

8 had you already conveyed to Carl Fox your

9 concerns about Judge Buckner's personal life?

10 A I don't think I got into that with

11 Judge Fox. It didn't come up. It wasn't

12 appropriate to the issue that we were

13 discussing.

14 Q What made you think that Judge

15 Buckner knew you had talked to Mr. Woodall

16 about Judge Buckner?

17 A Rephrase that, Carmen, because I

18 think you misspoke.

19 Q What made you think that Judge

20 Buckner was aware of the conversation you had

21 with Jim Woodall about Judge Buckner?

22 A I thought it was highly likely that,

23 knowing the personal relationship between

24 Judge Fox and Judge Buckner and how far back

25 that relationship went, that it was highly

152

1 likely that Judge Fox would talk to Judge

2 Buckner.

3 Q And so when you say -- this is on

4 Page 5 of that Exhibit 702 -- "It is my

5 understanding that you became aware of that

6 conversation through Judge Fox --"

7 A Where are you?

8 Q Line 3. Page 5 of Exhibit 702.

9 A Yes.

10 Q That statement was based on your

11 presumption?

12 A That statement was based on my

13 presumption, but also when we were in court

14 on November 24th, 2008, it was in the

15 McManaway matter. And that wasn't -- I'm

16 sure you've already gotten some sense, both

17 of those cases have gone up on appeal. And

18 that was kind of contentious for a lot of

19 reasons because there were allegations not

20 only that the attorneys had engaged in

21 misconduct, but there was an allegation that

22 Judge Buckner had engaged in misconduct. So

23 there was a lot of stuff on the table. And

24 we had the morning part of the hearing and

25 Judge Buckner then told us he wanted to take

153

1 a break, and that he was going to go take a

2 break and go meet with Judge Fox. Carl. I

3 don't know if that's on the transcript, but

4 that's what he said.

5 And I think it's highly unlikely

6 that he would have met with Carl and that

7 Carl at some point -- I mean, I know at least

8 on that occasion I know they had a meeting

9 unless he was making that up. He said he was

10 going to meet with Carl. And I just find it

11 hard to believe that he's in the middle of a

12 hearing where my client is making allegations

13 that he has engaged in this pattern of

14 misconduct and that he goes and has a meeting

15 with Carl, and at that meeting Carl does not

16 say, "Oh, by the way, do you know what Betsy

17 told Jimmy Woodall?"

18 Q So this is your assumption about what

19 happened?

20 A This is an assumption.

21 Q And that was as of November 2008 you

22 believed that Judge Buckner was aware that

23 you had spoken to Jim Woodall about him?

24 A Yeah. I mean, I would presume that

25 he was aware. So we've got May 30th when I

154

1 went to Jimmy; now we're in November. I

2 would presume that Judge Fox would have

3 spoken to him before November, but if not I

4 would certainly presume that he would have

5 mentioned something to him in November.

6 Q Just after the portion of the

7 transcript that we just looked at, you say,

8 "After you became aware of that conversation,

9 even though you had recused yourself from all

10 of my cases, Your Honor, on March 14th, 2008,

11 you then reassigned yourself to all my cases

12 after that."

13 Was it your belief that Judge

14 Buckner had reassigned himself to your cases

15 because he learned that you spoke to Jim

16 Woodall about him?

17 A Yes. And I think it was twofold. I

18 think that was part of it, but the other

19 reason was that when we were in the McManaway

20 case, and we were in chambers with Judge

21 Anderson, Judge Anderson told us that a

22 visiting judge would be assigned to that

23 case. And I looked at Donna and I looked at

24 Leigh and I saw their faces and I could tell

25 that they were really unhappy about that.

155

1 And we were talking about the

2 different judges who could come in and hear

3 that, and I wasn't quite as well versed with

4 the names as they were, and I sensed right

5 there that they were never going to agree to

6 have a visiting judge come in and hear that.

7 So what I believe happened is that

8 Donna, who has a very, very close personal

9 relationship with Judge Buckner, went to him

10 ex parte and said, "You've got to get back in

11 this case."

12 Whether or not that happened, I

13 don't know. I think it happened and he did

14 get back in the case. He sent us an e-mail

15 and said he was stepping back into the cases

16 that he had previously recused himself from.

17 So at that point that was McManaway

18 and Klein.

19 Q Do you have any evidence other than

20 your assumption that that ex parte

21 communication took place?

22 A No. Just that.

23 Q When did Judge Buckner resume hearing

24 your cases?

25 A I have the e-mail.

156

1 Q Just roughly.

2 A Oh, I can't even -- I can't

3 remember. It was sometime after we had the

4 chambers conference with Judge Anderson in

5 June. It was just, if I'm not mistaken, it

6 was the next month, I think. July.

7 Q Safe to say it was the summer of

8 2008?

9 A Yeah, I think so.

10 Q And you believed at that point that

11 he knew about this conversation you had with

12 Jim Woodall?

13 A I did.

14 Q Why did you not raise the issue of

15 your conversation with Jim Woodall in your

16 motions to recuse Judge Buckner after he

17 resumed hearing your cases?

18 A I think -- wait. Why did I not

19 raise that specific -- like in a motion to

20 recuse?

21 Q Uh-huh (yes).

22 A I think you had asked that earlier,

23 and you had asked me about this comment about

24 me protecting him. So let me go back and

25 address that.

157

1 If I wanted -- that's my hometown.

2 And I feel like I have a right to practice

3 law in my hometown. But, again, you can only

4 do that if you're willing to play the games

5 up in Hillsborough. So I think any comments

6 that I made, if I didn't put out there in a

7 motion about his sexual addiction and the

8 rumor that he was doing drugs, it was because

9 I knew that that would be the end of my legal

10 career in Orange County.

11 The level of retaliation when you

12 don't play the game up there is very swift

13 and very severe. And they will not let you

14 practice, and that is exactly what has

15 happened to me. And it's a pattern, and I'm

16 sure this is not the only time it's happened

17 to an attorney who has blown the whistle on

18 some sort of corruption.

19 They start with the motions for

20 contempt, and then they sanction you, and

21 then they force you to take everything up on

22 appeal, and it just gets more and more

23 expensive until you don't have a practice left.

24 And if you don't believe me, Carmen,

25 you can look on the Internet because there's

158

1 plenty of stories out there, and my story is

2 not different from any other attorney who

3 exposed or attempted to expose the corruption

4 in her town's courthouse.

5 It's me against a whole bunch of

6 people who are making their livelihoods from

7 it. It's about money and that's why. It all

8 comes down to money. They're all making

9 money.

10 Q Did I understand you to say that the

11 reason you did not include the rumor about

12 the judge's drug use in a motion to recuse

13 was because you feared retaliation?

14 A When I went into court that day, I

15 don't necessarily -- this was not necessarily

16 planned. This was most likely me after ten

17 years of fighting for my clients, trying to

18 get justice. Definitely, without a doubt, a

19 moment of frustration. So it wasn't planned,

20 it just came out. And it was probably

21 because I really just couldn't take it

22 anymore. It's not about me ultimately; it's

23 always been about my clients.

24 Q What I was trying to ask is, you

25 said you did not include an allegation about

159

1 the rumors of drug use in your written motion

2 because you feared retaliation. Is that

3 correct that that's what you said?

4 A I feared something. I mean, they

5 were already retali- -- I don't know really

6 even what adjectives to use at that point.

7 When you have so much stuff coming at you

8 from every direction, there is definitely

9 fear. What the fear was, I probably -- I

10 don't know. I mean, this is a guy who has a

11 lot of power. There comes a point where you

12 worry about lots of things. You worry about

13 your physical safety. You worry about your

14 livelihood.

15 Q Let me ask this another way. But

16 for your concern about the potential

17 retaliation, would you have included the

18 rumors about his drug use in a written motion

19 to the Court?

20 A I think not because -- well, I want

21 to talk about the fact that it was said in

22 open court. The setting was, if I had put it

23 in a document, or if I'd put it in a court

24 file, arguably the whole world could have

25 seen that. It would have been a document of

160

1 public record.

2 I think the only reason why I said

3 what I did in open court was because there

4 was almost no one in the courtroom. If I

5 remember correctly, it was Clerk Sarah and

6 the bailiff and Judge Buckner; it was me and

7 Eddie Greene, maybe Leigh Peek. I mean,

8 maybe there were two people -- it was the

9 only case on, it was not a full court setting

10 by any means, and it was in the new

11 courthouse and nobody even knew how to get up

12 to the courtroom. And I don't think there

13 were more than seven people in that courtroom.

14 And if I had to make a choice of --

15 I mean, I'm not out after him personally. Do

16 I think he's too sick to be on the bench?

17 Yes, I do. I hope he get help. This is not

18 a personal thing, and I guess maybe that's

19 what I was trying to explain to him, which

20 is, "Judge Buckner, I don't have a personal

21 vendetta against you. You just really, really

22 need help."

23 I felt that the best way to do that

24 was in this kind of closed-in sitting to

25 convey the information that way as to putting

161

1 it actually in a document in the court file.

2 But I already in other motions to

3 recuse -- I mean, what else can you say? A

4 Rule 59 motion, he lied in the courtroom. He

5 said this and said he hadn't entered an

6 order, but he did. At some point you run out

7 of words. What else can you say?

8 Q Do you think you could have included

9 the rumor about his drug use in a written

10 motion and complied with your obligations

11 under Rule 11?

12 A Without a doubt. Because let's back

13 up and talk about what these words

14 specifically are. I don't accuse him of

15 using drugs. What I say to him in the

16 courtroom is that I believe that he's aware

17 that I went to Jimmy and talked to him about

18 what the rumor on the street was. So at no

19 point in time have I accused him of -- yes,

20 if I'm going to put in motion and I would

21 say, "On March 30th, I went to Jimmy Woodall

22 and I told Jimmy that I'd spoken to other

23 attorneys -- i.e., Allison Grine -- and she

24 believed, with her other cronies who went to

25 court every day, public defenders and watched

162

1 him on the bench, that he was taking some

2 sort of drugs."

3 A Rule 11, yeah, because I'm just

4 repeating what I told Jimmy.

5 Q And how would your relaying that

6 gossip to Jimmy Woodall be relevant to the

7 matters before the Court?

8 A If Judge Buckner was aware that I

9 had gone to Jimmy Woodall and told him that

10 he was not fit to be on the bench, if Carl

11 had called him up and said, "Joe, Betsy did

12 this, right or wrong, but she told Jimmy that

13 word is that you're using drugs. She told

14 Jimmy about your numerous affairs. She told

15 Jimmy that you break -- violate the judicial

16 code often. She told Jimmy" -- whatever. I

17 think there are plenty of judges who, having

18 already recused themself from every single

19 one of my cases, Carmen, all he needed to do

20 was stay off my cases.

21 He never -- there's an order

22 recusing himself from all of my cases. There

23 is a letter. He never signed an order

24 putting himself back on my cases. He just

25 sent an e-mail. I don't know any other judge

163

1 who would have done that. And I can't for

2 the life of me imagine what his motivation

3 would have been.

4 Q When you started talking about this,

5 Judge Buckner actually said I had no

6 knowledge of your conversation with Jim

7 Woodall, isn't that right?

8 A He did say that.

9 Q So at that point what was your

10 purpose in telling him about the conversation

11 you had?

12 A For him to get off my cases, so that

13 my clients had a chance. I mean, if I take a

14 whole series of cases up to the Court of

15 Appeals and they are all reversed, that would

16 give me some indication that the law was not

17 being followed in the trial court. I mean,

18 that is, after all, what's happening in an

19 appeal.

20 Q Let's take a look at the Eighth

21 Claim. And this claim first discusses the

22 complaint filed in McManaway v. LDS Family

23 Services?

24 A Uh-huh (yes).

25 Q I'm looking at Paragraph 68 of the

164

1 complaint, and I see it is denied --

2 A Uh-huh (yes).

3 Q -- and I'm trying to understand why.

4 If you want to look at Exhibit 805 --

5 A [Witness Views Document] I'm trying

6 to remember why we did that.

7 WITNESS: Do you, Dudley --

8 A I don't remember unless the dates

9 are wrong or --

10 Q Let's walk through it a bit. The

11 first sentence is in November 2008, you filed

12 a complaint in McManaway v. LDS Family

13 Services.

14 A Yeah.

15 Q The first sentence in Exhibit 805

16 says that you were amending a complaint filed

17 on November 24th, 2008?

18 A Uh-huh (yes).

19 Q And that does appear to be in this

20 -- the court action that is referenced in

21 Paragraph 68, correct?

22 A Yes.

23 Q So does that sentence --

24 A Yeah. I think we might have made a

25 mistake on this one.

165

1 Q Okay.

2 A Although one of them didn't have the

3 name of the lawsuit correct. But I guess

4 it's not this one. I may have to think about

5 that, but that one looks pretty cut and dried

6 and I'm not sure why we denied it.

7 Q I just wanted to make sure I didn't

8 have a date wrong or something. I believe

9 that because the file stamp is so illegible I

10 relied on the certificate of service date.

11 A Well, you know what? That could

12 have been it. [Witness Views Documents]

13 Certificate of service. I mean, that's silly,

14 but I don't -- something -- I think it might

15 have been filed on the 5th.

16 MR. WITT: Can I just have a

17 second?

18 MS. BANNON: Sure.

19 [Witness and Counsel confer.]

20 MR. WITT: She'll admit that

21 allegation.

22 A Yeah.

23 Q Okay. Good. And the amended

24 complaint you've filed included allegations of

25 misconduct by attorney Donna Davis, correct?

166

1 A Correct.

2 Q And you had previously filed a

3 grievance with the State Bar against Ms. Davis?

4 A Yes, having nothing to do with this.

5 There is currently a grievance before the

6 State Bar having to do with Donna's conduct

7 in the McManaway case and that was filed by

8 me and by my client Emily McManaway.

9 Q And if I can refer you to Exhibit

10 802, does this appear to be a submission to

11 the Grievance Committee by you in reference

12 to Donna Davis?

13 A Yes.

14 Q And is that dated June 4th, 2008?

15 A Yes.

16 Q If you look on Page 2, the third

17 paragraph, does that indicate that you are

18 attaching the Rule 11 Motion for Sanctions

19 that you filed against Davis in Surry County?

20 A Yes.

21 Q And does it also indicate that you

22 are attaching a motion that you filed in the

23 Orange County case alleging improper behavior

24 by Davis?

25 A Yes. Yes, you're right.

167

1 Q And are these attached documents that

2 you refer to in reference to the McManaway

3 case?

4 A Yes, they are.

5 Q And so does it appear that you made

6 allegations against Davis relating to the

7 McManaway case?

8 A Yes, and actually, if I'm not

9 mistaken, the response I got from the Bar was

10 that my complaint was dismissed because the

11 Bar didn't have enough information.

12 What exhibit is that, Carmen?

13 Q Exhibit 804.

14 A Okay.

15 Q And does it in fact say that the

16 conclusion was that "the available information

17 did not show that the attorney's conduct --"

18 A Uh-huh (yes).

19 Q -- that her conduct "violated the

20 Rules of Professional Conduct"?

21 A Correct.

22 Q And the date on that letter?

23 A September 23rd.

24 Q That was before you filed the amended

25 complaint in which we are here -- McManaway

168

1 v. LDS.

2 A Well, that was before I filed any

3 complaint. September 23rd. I didn't file

4 the original complaint until November.

5 Q Were the allegations against -- let

6 me start over.

7 Were the allegations in your

8 complaint or your amended complaint different

9 with respect to Davis than the allegations you

10 submitted to the Grievance Committee?

11 A Take me back to that last exhibit.

12 MR. FREEDMAN: Exhibit 804.

13 A Oh, yeah, they were different. They

14 were very different, and I'll tell you why.

15 Yeah, I don't need to see the

16 exhibit.

17 Yes, Carmen, they were very different

18 and let me tell you why. All throughout my

19 representation of Emily McManaway, Emily told

20 me that they had kidnapped her child; used

21 the legal system to kidnap her child. And

22 she told me how they did it. But I never

23 felt that I could put all the pieces

24 together. I believed her. I believed her,

25 but looking at the legal documents I never

169

1 believed that I could put all the pieces of

2 the puzzle together. I had threatened them

3 earlier with a lawsuit because I knew in my

4 heart of hearts that they had, but there's a

5 difference between knowing they had and

6 knowing that you have enough to

7 prove it. So when we went into

8 chambers with Judge Anderson and he

9 encouraged us to settle, I was open to that

10 concept because, again, I felt that they had

11 abuse of process, civil conspiracy, I felt

12 strongly it was all there, but I wasn't sure

13 how.

14 When Emily came into town for the

15 November 24th hearing, the night before she

16 came in and we were preparing for the next

17 day's hearing and I started looking through

18 all the documents that Leigh Peek and Donna

19 had filed, and a light bulb went on in my

20 head and I saw that repeatedly they were

21 referring to this bogus court order as a

22 valid child custody order, and they said it

23 over and over and over again. And because

24 they said it so many times, I looked at Emily

25 and I said, "Were you ever served with a

170

1 summons and a complaint?" And she said no.

2 And I knew at that moment that was

3 the missing piece. And I drafted the

4 complaint, a Superior Court complaint. I

5 walked into court, I held it back. I went to

6 the clerk's office and I said, "Give me the

7 file, the custody file," and I looked in it

8 and I saw that there was no complaint and

9 there was no summons. And I knew at that

10 point in time that I could prove it, and I

11 knew that I could prove it to the Court of

12 Appeals and that I could prove it to anybody,

13 that they had used this phony court order to

14 build a house of cards.

15 And when I knew I could prove it,

16 and I had that piece of information, I turned

17 around and filed the original complaint --

18 you can see the file stamp on it, 9:00 in the

19 morning -- and then I walked in and we had

20 the hearing in front of Judge Buckner.

21 So, yes, the allegations were

22 completely different.

23 Q I'd like to look at the motions that

24 you attached to your submission to the

25 Grievance Committee. It may take me a minute

171

1 to find them. [Looking at documents.] And it

2 may take the rest of my life to find them. I

3 suppose we can -- I'm just not sure it's even

4 on my list. I have a note that the -- I

5 think it would be pretty clear what your Rule

6 11 motion for sanctions in the Surry County

7 case is. There's only one of those, right?

8 A Correct.

9 Q When it says, "I recently filed the

10 attached motion in the Orange County custody

11 action," that may be a little bit harder to

12 pin down.

13 A It was probably the Rule 60, but I

14 don't know.

15 Q I have a note for some reason

16 indicating that it was the Amended Response

17 to Motion for More Definite Statement and

18 Motion to Strike.

19 A Oh, yeah, it was something along the

20 line of a -- yeah. Uh-huh (yes). I filed a

21 lot of motions in that case.

22 Q Do you believe that that caption I

23 just read was the motion you attached to this

24 grievance?

25 A I have no idea.

172

1 Q Do you have any records that would

2 confirm that?

3 A We could look it up right now. If

4 we go to the website of the Court of Appeals,

5 you can bring up the record on appeal in the

6 case that was heard on Wednesday. Can look

7 right at it.

8 Q Does that record show what you

9 attached to your grievance submission?

10 A Well, no, but, I mean, date-wise, I

11 think we could narrow it down.

12 MR. WITT: But I think what she

13 is trying to get at is just what were

14 the attachments.

15 MS. BANNON: Right.

16 Q Well, I mean, that's something we can

17 confirm with our files.

18 A Yeah, you have it in your office.

19 Right.

20 Q I have a couple of other questions

21 about this. You mentioned that you received

22 an e-mail from Jonathan McGirt --

23 A Uh-huh (yes).

24 Q -- saying that Ms. Davis was going to

25 retaliate against you.

173

1 A Uh-huh (yes).

2 Q If you look at exhibit 801 and tell

3 me if that's the e-mail that you're referring

4 to.

5 A [Witness Views Document] Yes.

6 Q What about Mr. McGirt's e-mail

7 indicated to you that Ms. Davis was going to

8 retaliate against you?

9 A "But surely you know by now that if

10 you are going to go nuclear, you should stay

11 upwind of the fallout."

12 Q Does Mr. McGirt's statement that he

13 does "not believe for one minute that Donna's

14 honesty or ethics deserved to be called into

15 question," does that suggest to you that he

16 believes she's going to take retaliatory

17 action against you?

18 A I know that Jonathan served on a

19 committee with Donna for a while in Wake

20 County, in Raleigh -- I can't remember what.

21 No, I don't see those two as related at all.

22 I think he could very much believe that Donna

23 was -- you know, had not engaged in

24 misconduct, but that if I alleged that she

25 had I still needed to watch my back.

174

1 Q What do you think he meant when he

2 said "if you're going to going nuclear"?

3 A I think that there is a sense,

4 particularly in a small town -- it's one

5 thing in Chicago for a lawyer on one side of

6 downtown to bring a lawsuit on behalf of a

7 client against another lawyer. Okay, that's

8 happens in big cities a lot.

9 It is quite another thing to do that

10 in a county as small as Orange County, in a

11 little hamlet as small as Hillsborough. So I

12 think that's what he meant.

13 You know, there is this kind of

14 unspoken code between attorneys that we're

15 not supposed to -- Lunsford calls it lawyer

16 culture. You're not supposed to turn on your

17 own.

18 Q Aside from legal malpractice cases,

19 what kind of suits against lawyers do you

20 believe are common in the bigger cities?

21 A I couldn't say, just that -- I don't

22 know. Just that I think because any type of

23 lawsuit involving an attorney is going to be

24 contentious and it's less contentious when it

25 happens in a big city. I don't know how

175

1 often attorneys engaged in this type of

2 misconduct. Emily didn't have a contract with

3 either Leigh or Davis, so --

4 Q On Page 3 of Exhibit 802, in the

5 second full paragraph, you've referred to the

6 allegations in Davis' grievance, and then you

7 give a file number.

8 Why did you believe that Ms. Davis had

9 initiated that grievance?

10 A Oh, yeah. Well, who did? You can

11 tell me now. I got the discovery and I

12 haven't had time. So since there's no

13 secrets, can we discuss who signed that one?

14 MR. WITT: You know you don't

15 get to ask questions.

16 WITNESS: I don't get to ask

17 questions.

18 A Okay. The allegation in Davis'

19 grievance. I can't remember why I thought

20 that she had brought it. I can't remember.

21 It seemed like -- no, I don't know.

22 Unless Tony -- I mean, I think at

23 one point I had talked to Tony about it and

24 he had denied doing it, but I don't know if

25 he pointed the finger at Donna.

176

1 Q If we can look at Paragraph 78. I

2 just want to confirm that the difference

3 between the allegation and the answer is just

4 the date. Is that correct?

5 A Yeah, I think so. Yeah, that

6 appears to be.

7 Q If you look at Exhibit 812.

8 A Uh-huh (yes).

9 Q That's the complaint that is

10 discussed in Paragraph 78. Correct?

11 A Uh-huh (yes).

12 Q I was a little bit confused because

13 it appears that your signature on this

14 complaint is dated the 27th of April.

15 A And what's the confusing part on that?

16 Q It is alleged that the complaint was

17 filed on the 28th of April, and your answer

18 says it was filed on the 18th, but your

19 signature line leads me to think maybe it was

20 the 28th.

21 MR. WITT: It looks like an 18

22 rather than a 28.

23 WITNESS: Oh. Maybe we didn't

24 look at the --

25 A Okay. We'll admit that. Yeah.

177

1 Okay.

2 Q It doesn't matter. Again, I just

3 want to figure out what we've got in dispute.

4 Paragraph 80 alleges that, in this

5 complaint that we're looking at, you allege

6 that Donna Davis and Lunsford Long had

7 conspired to improperly influence the outcome

8 of a hearing.

9 A Uh-huh (yes).

10 Q In your answer you admit that you

11 made that allegation on behalf of your

12 client, is that right?

13 A Correct.

14 Q What is the distinction you are

15 making there?

16 A My client brought a lawsuit against

17 them.

18 Q It wasn't alleged that you were the

19 plaintiff, correct?

20 A Well, you have "Wolfenden alleged."

21 That's fine. You could have written

22 "Wolfenden alleged on behalf of her client"

23 and I would have admitted that.

24 I don't make allegations; my clients

25 make allegations. I signed the lawsuits on

178

1 behalf of my client, but I don't allege

2 anything unless I brought the lawsuit. And

3 I've only brought one.

4 Q What do you understand your

5 obligations under Rule 11 to be with respect

6 to the factual allegations you make in your

7 pleadings?

8 A To make sure that there is a basis

9 for them. To make sure that there is a law

10 that applies to the allegations made. Or

11 there is some reason to extend the existing

12 law.

13 Q In this instance did Emily McManaway

14 have personal knowledge to support the

15 allegation that Donna Davis and Lunsford Long

16 had conspired to improperly influence the

17 outcome of a hearing?

18 A Emily was not at this hearing, so I

19 attended the hearing, I told her what

20 happened, we discussed it. I asked her if

21 she wanted to bring the lawsuit and she said

22 yes, that she did.

23 Q So the factual allegations in that

24 complaint were based on your personal

25 knowledge, correct?

179

1 A Based on, yes, what I experienced at

2 the hearing, yeah, and what I had been

3 discussing with her. Q Paragraph 81

4 states or alleges that this complaint "alleged

5 that Long's mere presence at counsel table

6 during the 16 March 2009 hearing constituted

7 'an attempt to improperly influence the court

8 through his relationship with Judge Titus.'"

9 You have denied that you had no

10 factual basis for making that allegation.

11 A Uh-huh (yes). Yeah. From what I

12 know of Lunsford and having worked in his

13 office for five months and having watched him

14 lawyer for ten years. The fact that he would

15 not make an entry of appearance in a the

16 case, not inform me, the Court, or anyone

17 that he was representing Donna when she

18 already had counsel, and that he would show

19 up on the day of the hearing, not introduce

20 himself to anyone, and he would not have

21 introduced himself to anyone unless the court

22 reporter had gone over and asked him who he

23 was. That I did believe that his appearance

24 in court that day was an attempt to influence

25 Judge Titus.

180

1 Q Aside from Mr. Long sitting at

2 counsel's table and not saying anything, what

3 other acts are alleged in this complaint that

4 show they are attempts to improperly

5 influence the hearing?

6 A Well, I have never, in my own

7 experience, have been engaged in a lawsuit

8 where the attorney -- a attorney on the other

9 side hides themself from me, from my client,

10 from the Court, from the Clerk. I just found

11 that very bizarre, and knowing what I know

12 about Lunsford I felt that he was definitely

13 there in an attempt to influence the outcome

14 of the hearing. I could come up with no

15 other reason.

16 Q My question was, what other acts by

17 Lunsford Long or Donna Davis are alleged in

18 this complaint that supposedly furthered their

19 efforts to influence the outcome of this

20 hearing?

21 A If you'll give me a second, let me

22 just look it over. [Witness Views Document]

23 The fact that he not only failed to file an

24 entry of appearance, but when the judge asked

25 -- I don't know -- I don't remember if the

181

1 judge asked, but at some point in time

2 everybody was asked to introduce themselves

3 to the Court. And when I believe it came for

4 Lunsford's turn to address the judge, I don't

5 remember exactly what he did, he made some

6 kind of a motion with his head. I think he

7 shook his head no and just remained silent.

8 And then I think, if I remember, I just want

9 to see what exactly I put in here. If I'm

10 not mistaken or I think Donna says in her

11 answer that a couple of times during the

12 hearing when certain comments were made on at

13 least one occasion, maybe two, Lunsford shook

14 his head no.

15 Q Is there an allegation in this

16 complaint regarding his head shaking?

17 A No. I think Donna had just -- I'll

18 take a moment, but I know Donna had said that

19 in her answer. [Witness Views Document] I

20 don't see the head shaking in here. I think

21 Donna admitted to it in the answer, but I

22 don't see that I made the allegation, but she

23 made it for me.

24 Q Do you believe that it's improper

25 for an attorney who is not of record in a

182

1 case to consult with an of-record attorney in

2 the courtroom?

3 A I believe Lunsford's actions --

4 again, based on my experience working in his

5 law firm, knowing the type of behavior that

6 he engages in -- I believed that his behavior

7 was unethical and improper. Of course he can

8 consult, but that's not what happened. He

9 was not consult- -- I'm mean, that's not what

10 happened on this day.

11 Q Well, my question was, as a general

12 proposition do you believe that it is

13 improper for an attorney who is not of record

14 in a case to consult in the courtroom with an

15 attorney who is of record in the case?

16 A I think it is -- it was improper for

17 him not to file an entry of appearance, and

18 it was improper for him not to introduce

19 himself to the judge. I did not see any

20 consultation, there was no consultation at

21 the table going on between -- I can't even

22 remember the other attorney and Lunsford. He

23 just sat there, refused to acknowledge his

24 presence and at a couple of occasions he

25 shook his head.

183

1 Q Let me ask a different question. Do

2 you believe it is improper for an attorney

3 who is not of record in a case to sit at

4 counsel table?

5 A I've never experienced it before.

6 I've never -- and to not introduce themselves

7 to the judge. I would find that highly,

8 highly unusual.

9 Q My question was, do you believe in

10 general that that is an improper act?

11 A I believe -- I really can't -- I'm

12 not going to make a sweeping generalization.

13 I don't know. It depends upon the facts. It

14 depends upon the attorney. It depends upon

15 what's at stake in a lawsuit. Donna would

16 have gone to Lunsford to ask him to make the

17 McManaway lawsuit go away.

18 Q When you say "she would have," this is

19 something that you are assuming?

20 A Well, they filed some affidavits and

21 she said that she did -- she allegedly did

22 retain him. I mean, I don't really believe

23 that she did, but they were obviously

24 conversing about the lawsuit.

25 Q When you said Donna would have asked

184

1 Lunsford to make the lawsuit go away, that is

2 something you are assuming.

3 A And she filed an affidavit saying

4 that she retained him. I would imagine that

5 she retained him for the purpose of making

6 the lawsuit go away.

7 Q When you say you "would imagine,"

8 you mean you assume.

9 A Well, yeah, I assume. I mean,

10 that's why people often hire attorneys is to

11 get them out of the trouble they've gotten

12 themselves into. So I assume that's why she

13 retained Lunsford. And I would assume Donna

14 has been practicing in the district as long

15 as I have, and she is also aware of

16 Lunsford's lawyering tactics.

17 Q I'm not sure I got an answer to the

18 question of whether it is, as a general rule

19 --

20 A I don't know what you -- you know,

21 general rule, a rule of professional conduct,

22 I really don't -- we all have different

23 experiences. I've never experienced that,

24 Carmen. I've ever seen an attorney do that.

25 Never seen an attorney act that way. That's

185

1 my own personal experience. I can't speak

2 for anybody else.

3 Is there a rule of professional

4 conduct that says you should -- I don't know.

5 Q Or any other rule?

6 A I think most people, if you asked,

7 polled most attorneys, they would say they

8 would find that very odd, and improper.

9 Q So there is not a rule that you know

10 of?

11 A I have not seen that in a rule book.

12 Q Do you believe that if something

13 occurs in a courtroom that you have not

14 experienced before that that's an indicator

15 of misconduct?

16 A No, but I think after practicing law

17 for ten years, you get to know what the norm

18 is, and you get to know what is ethical. And

19 for me, practicing for ten years in Alamance

20 and Wake and Durham and all the other

21 counties that I practice appellate law in, I

22 think I have the good sense as to what is

23 normal behavior and what is ethical behavior

24 and what is not.

25 Q Do you believe that it is improper

186

1 for an attorney who is sitting at counsel

2 table not to introduce himself to the Court?

3 A Yes, absolutely, I think that is

4 improper, and I think that suggests that

5 there was some motivation, some untoward

6 motivation for the person to be sitting there.

7 Q What authority do you have for the

8 belief that that's improper, not to introduce

9 yourself?

10 A From my own experience.

11 Q What was your factual basis for

12 alleging that Lunsford Long had a relationship

13 with Judge Titus?

14 A Just the length of time that

15 Lunsford has practiced, and the fact that

16 Judge Titus -- I'm trying to remember -- I

17 think Judge Titus is based in Durham, if I'm

18 not mistaken, and I know that there was -- I

19 can't remember. At some point in time I had

20 done some research and I think Lunsford was

21 the district attorney or what have you, but I

22 thought there was -- that their career paths

23 had crossed.

24 Q Lunsford was the district attorney

25 where?

187

1 A I can't remember now.

2 Q So your basis for that assertion was

3 the length of time that Lunsford had been in

4 practice and the fact that he is in an

5 adjacent county to Judge Titus?

6 A Yeah, and also, I mean, just knowing

7 what I know about Lunsford. I mean, he

8 wouldn't have shown up unless he thought his

9 appearance was going to make an impact. I

10 mean, why would any attorney do that.

11 Q To your knowledge are Donna Davis and

12 Lunsford Long friends?

13 A When I went to work for Lunsford, he

14 told me that Donna Davis was mentally ill and

15 -- but of course he says that a lot about a

16 lot of female attorneys who don't do his

17 bidding, and he asked me to take every case

18 that he had with Donna. He said he didn't

19 want to deal with her, couldn't stand her.

20 So he turned a lot of those cases over to me.

21 So, no, they have always been enemies until I

22 decided to run for judge, and after I did

23 that, I would see them conversing in the

24 courtroom.

25 And on one occasion in one case I

188

1 remember I walked in and Donna -- I had filed

2 a motion or something in one of Donna's

3 cases, and she was showing it to him. But I

4 think that was the first time I got the sense

5 that -- I mean, I knew that Donna wanted -- I

6 felt that Donna wanted me disbarred because

7 of the McManaway case. And I had also been

8 informed that Lunsford ultimately wanted the

9 judicial seat that I was running for. So I

10 would have to admit that was the first time

11 it went through my mind that even though they

12 were considered enemies before, that they

13 were going to join forces to have me

14 disbarred.

15 Q Paragraph 27 of this complaint, you

16 allege "Long sat at the Defendant's table

17 because he believed his appearance before

18 Judge Titus would influence Judge Titus to

19 rule in Davis' favor." What was your factual

20 basis for that allegation?

21 A Just my experience working with

22 Lunsford and how he uses -- the way he uses

23 his -- basically he lawyers by using power

24 and influence. And that's about it.

25 Q So you didn't have any specific

189

1 information related to his appearance in this

2 case?

3 A No, just from my work experience in

4 his firm for five months, going into court

5 with him.

6 Q What factual basis did you have to

7 allege that Ms. Davis instructed Lunsford Long

8 to sit at the defendant's table because she

9 believed that his relationship with Judge

10 Titus would affect the outcome?

11 A Well, because I knew that once I saw

12 them kind of working together after I had

13 decided to run for judge, I think that the --

14 I can't remember. But, wait, what did you --

15 Carmen, I'm getting tired.

16 Q Me, too.

17 A I know, it's hard when you get in the

18 afternoon. What were you -- oh, that Donna

19 instructed him.

20 Q Uh-huh (yes).

21 A Well, yeah, because I knew at some

22 point that he wasn't there for -- oh, let me

23 think, let me think.

24 Yeah, because I talked to the court

25 reporter and she had gone up to the table,

190

1 and even though he refused to introduce

2 himself to the judge, the court reporter kind

3 of put everybody on the spot and said, "I've

4 got to get your names down," and it was at

5 that point in time when he -- I think she

6 said, "Who are you here representing?" and he

7 said, "Donna." So well, you know, I knew he

8 didn't show up for himself. So once he had

9 informed the court reporter that he was

10 representing Donna, I knew that Donna had

11 told him to go.

12 Q Did the court reporter provide you

13 with factual information supporting the

14 allegation that Davis believed that due to

15 Long's relationship with Judge Titus, his

16 appearance at the table would affect the

17 outcome of the hearing?

18 A No.

19 Q Do you believe that the outcome of

20 that hearing was influenced by Lunsford

21 Long's presence?

22 A I'm going to reserve my judgment

23 until the Court of Appeals rules. If the

24 Court of Appeals rules and finds that Judge

25 Titus abused his discretion in denying Ms.

191

1 McManaway's motions, then I'll have an opinion

2 on the matter. For me, you know, I want to

3 see what the Court of Appeals says. If Leigh

4 dismisses without prejudice, I'm not saying we

5 would bring it again, but I would reevaluate

6 that with Ms. McManaway after we get a ruling

7 on the appeal.

8 Q In your factual allegations in this

9 complaint, Paragraphs 18, 19 and 20, those

10 paragraphs relate to what Judge Titus did,

11 correct?

12 A Uh-huh (yes).

13 Q How are those factual allegations

14 relevant to your allegations against

15 Defendants Long and Davis?

16 A Well, the order that he entered was

17 rather odd. There was not a single finding

18 of fact or conclusion of law. That's not to

19 say that judges can't do that. They can.

20 But the order was, to me, odd. Taking into

21 consideration what was argued at the hearing,

22 the length of the arguments, the fact that it

23 was just this kind of pro forma summary,

24 literally his order was -- there was nothing

25 to it. And I found that to be -- I found

192

1 that to be rather odd.

2 The whole hearing, to be honest, was

3 rather odd. But, again -- for instance, the

4 hearing was on Monday morning at 9:00 a.m.,

5 and on Friday afternoon, late in the

6 afternoon, the defendants had faxed to me I

7 think a 150-page brief with all this -- which

8 I never got, which was, to me, I mean,

9 completely improper. And I objected at the

10 hearing to that, and then Judge Titus never

11 made the ruling. The whole thing was strange.

12 But, again, I'm going to reserve my

13 judgment until I see what the Court of

14 Appeals says.

15 Q And when you say "odd" and

16 "strange," do you mean that you believed

17 these orders were the results of improper

18 influence?

19 A I don't know. I don't know if Judge

20 Titus -- I believe this, or I wouldn't have

21 filed the lawsuit. Did Lunsford attempt to

22 influence the Court; yes, I believe that he

23 did. Was he successful; I'm reserving my

24 opinion on that until the Court of Appeals

25 rules. If they reverse --

193

1 Q Do you believe that in order to

2 prevail on the legal claims you asserted in

3 this suit you would have to show harm?

4 A I believe that -- what I believe,

5 Carmen, is that the decisions that are made

6 by the Court of Appeals supersede the Bar's;

7 so that if someone comes to the Bar and files

8 a grievance saying there was no existing law

9 for her to have done this, and that in

10 addition to that let's say they also file a

11 Rule 11 motion for sanctions. Okay?

12 Let's say it's granted and they come

13 to the Bar and they file a grievance. And

14 then that goes up to the Court of Appeals and

15 that is reversed. Then, to me, the Court of

16 Appeals has the last say.

17 And I must be perfectly honest. I'm

18 very confused as to the role that the Bar

19 appears to want to play in arbiting these

20 lawsuits because I don't understand how the

21 Bar feels that it can interject itself into

22 these lawsuits until they have gone up on

23 appeal.

24 And I think it is because the Bar

25 feels that they can do this, that it gets

194

1 down to this, why attorneys nowadays are

2 using the Bar to achieve certain outcomes in

3 lawsuits. It's because the lawsuits are not

4 working their way up through the appellate

5 process, and the final decision is not being

6 made by the judges.

7 Q Let me ask my question again.

8 At the time you filed this complaint,

9 did you believe that in order to prevail on

10 these legal theories you would need to show

11 harm?

12 A Well, if, in fact, my client had to

13 appeal a case, and that she had -- I mean

14 "harm." If, in fact, she had damages from

15 what I had alleged, and if that was true,

16 then I think that their behavior, yes, did in

17 fact -- she did incurred damages because of

18 their behavior.

19 I mean, have we had an unnecessary

20 appeal? I don't know that until the Court of

21 Appeals rules.

22 Q What did you allege were her damages?

23 Not monetary amount, but what was the nature

24 of the damage to her?

25 A Monetary.

195

1 Q How did she incur monetary damages?

2 A Well, if we had just done a whole

3 appeal, that could have been completely

4 avoided. Let's just say -- well, if you're

5 influencing -- I mean, if you're influencing

6 a judge, if in fact a judge is being

7 influenced, if the attempts are being made, I

8 mean, that's just your basic vanilla flavored

9 court corruption.

10 If that is going on, as I think it

11 is going on in Orange County, how are all

12 these litigants being damaged? Either they

13 are losing certain rights or they're losing a

14 whole bunch of money trying to appeal the

15 cases to vindicate their rights.

16 Q And my question is, when you

17 requested in your claim for relief

18 compensatory damages, what damages, at the

19 time you filed this complaint, had your client

20 incurred?

21 A I can't think of it right now, but I

22 might choose to amend that answer later.

23 Q Let's talk about the Ninth Claim.

24 A Uh-huh (yes).

25 Q The Ninth Claim involves the Lyons

196

1 case

2 A Uh-huh (yes).

3 Q Is that how you pronounce it?

4 A Yes.

5 Q Paragraph 90 alleges at a February

6 12th, 2009 hearing you requested a

7 continuance seeking to have at least one

8 matter heard at a later date.

9 A Yes. Leigh requested the

10 continuance. I told the judge I was ready to

11 go. It was a child custody hearing. We were

12 ready to proceed.

13 We had filed a motion asking that my

14 client pay one hour in legal fees to her

15 client. There was no statutory basis

16 whatsoever for her motion. So I told the

17 judge that this is a child custody case, let's

18 go ahead and have the custody matter heard,

19 but I wanted her to delay the hearing on the

20 $200 legal fees because I wanted to have the

21 mediator there, Jeannie Redwine.

22 That is on the record.

23 What's not in the record is the

24 judge then called us into chambers and Leigh

25 said, "Judge, I can't go forward today."

197

1 And Judge Scarlett said, "Why?"

2 And she said, "Because I need to get

3 permission from my attorneys. Ms. Wolfenden

4 -- one of Ms. Wolfenden's clients is suing

5 me."

6 And so what Leigh would do, because

7 by this time Lunsford was -- during the

8 election Lunsford backed off of some of the

9 cases and Leigh, who was Judge Coleman's --

10 the treasurer of his campaign, she got on the

11 cases.

12 And so when we would go into court

13 and she was ready to be heard, she wouldn't

14 say anything about the lawsuit. But when we

15 would go into court on other matters and she

16 didn't want to be heard, like in the Lyons

17 matter, or in another case that I can't

18 remember, she would tell the judge that her

19 attorneys were telling her that she could not

20 represent these clients.

21 She never got off, but she'd kind of

22 use it and play with it.

23 So we were back in chambers and she

24 told Judge Scarlett that she could not go

25 forward that day. I argued and just said,

198

1 you know, "Judge, we're here, we're ready to

2 go. That's the issue. The legal fee thing

3 we can always get heard on. My client is

4 here from South Carolina. Let's go."

5 And the judge granted Leigh's request

6 for a continuance, not mine; she granted

7 Leigh's. And she said, "Put the Lyons matter

8 back on next calendar call."

9 But all of the conversation in

10 chambers, of course, was in chambers and I

11 never should have gone back in chambers, but

12 that didn't make it on the recording.

13 Q If you could look at Exhibit 915,

14 Paragraph 6.

15 A Uh-huh (yes).

16 Q Based on that paragraph, the second

17 sentence, is it accurate to say that at the

18 February 12th hearing you requested a

19 continuance seeking to have at least one

20 matter heard on another date?

21 A Yes, just the attorney's fees, but,

22 again, one hour of attorney's fees. The

23 issue between these parties was the custody

24 of their child. That was the main thing that

25 was on for the today, and that was what

199

1 needed it to be heard and we wanted to go

2 forward with that, but that was -- but Leigh

3 just refused and said she couldn't go forward

4 because she had to confer with her attorneys.

5 So I will continue to maintain it is

6 Leigh who asked for the continuance for the

7 main subject matter; or you might want to say

8 Leigh asked for the continuance of the child

9 custody part, I asked for the continuance for

10 her one hour of attorney's fees. But that

11 was a very, very minor peripheral matter to

12 the actual issue of the child custody.

13 Q On Paragraph 91, I wasn't clear from

14 the answer whether we have a dispute or not.

15 I didn't see one.

16 A [Witness Views Document] Oh, yeah.

17 No, we really don't. I just clarifying that

18 it was Leigh again who asked for the

19 continuance, not me.

20 Q And is it accurate that you were not

21 present for the March 4th calendar call?

22 A Correct. By the time I called and

23 found out about it, it was too late for me to

24 go.

25 Q Is it also correct to say that at

200

1 the March 4th calendar call Ms. Peek

2 scheduled the Lyons case for hearing on March

3 23rd?

4 A That's correct. And she did not

5 notify me.

6 Q I understand that you contend you

7 didn't have proper notice of the March 23rd

8 hearing, but did you make it to that hearing?

9 A Yes, I did.

10 Q In your answer to Paragraph 93, it

11 says, "Defendant admits that after Peek

12 obtained the March 23rd court date from Judge

13 Buckner, Peek failed to provide" you "with

14 notice of said court date."

15 Now, by "obtained," do you mean that

16 she appeared at calendar call and scheduled

17 the hearing?

18 A Correct.

19 Q And you knew that the case was on

20 the March 4th calendar, correct?

21 A Correct.

22 Q What efforts did you make to find

23 out when the case had been scheduled after

24 the calendar call?

25 A I think at some point I communicated

201

1 with the clerk. Really none of these issues

2 would probably have happened if we, you know,

3 had a Family Court like Durham and Wake

4 County. You wouldn't have all these

5 scheduling issues, but it's a huge problem in

6 Orange County because there's no rules of

7 court. So it's a free-for-all.

8 Q And do I understand that it's your

9 position that when a case is scheduled at

10 calendar call, it is then incumbent upon the

11 attorney who was at the calendar call to

12 issue another notice of hearing?

13 A Absolutely. I always do in writing.

14 If I don't, I always call. And to remind me

15 to do so -- if you would like, we can pull

16 every calendar call transcript going back five

17 years and you always hear Judge Buckner

18 admonished the attorney, "Okay, we've chosen

19 this date. You've got to notify opposing

20 counsel."

21 "Yes, Judge. Yes, sir."

22 He tells everybody that, but he

23 doesn't tell opposing counsel to do that on

24 my cases.

25 Q Do you believe that there is a rule

202

1 of any kind that requires a notice of

2 hearing, a formal notice of hearing, to be

3 issued after scheduling at calendar call?

4 A I'd have to look. Again, local

5 rules are so scanty in Orange County I can't

6 respond to what local rules require. But,

7 yeah, I mean, of course they are. Of course

8 there's a requirement. Just going back to

9 the North Carolina Civil Rules of Procedure.

10 Giving someone notice of calendar call is --

11 gives nothing. There's -- you know, the

12 whole thing of notice, yeah, I think you

13 definitely -- if you look at the Rules of

14 Civil Procedure they tell you exactly when

15 motions and things like that need to be

16 noticed for hearing. And I do think that

17 requirement -- since we don't have any local

18 rules to address it, what else can we do but

19 fall back on the Rules of Civil Procedure,

20 which very few -- you know, not that many

21 attorneys do follow, but there are some who

22 try.

23 Q Its alleged in the complaint that --

24 looking at Paragraph 94, you said the Chief

25 District Court Judge had contacted opposing

203

1 counsel directly to inform opposing counsel

2 of the rescheduling but had not informed you

3 of the same.

4 A Yeah.

5 Q What aspect of that --

6 A I had called -- after I found out

7 about the calendar call, I had called some of

8 my colleagues and asked them how the new

9 calendar call information had been

10 disseminated, if that's the correct word, and

11 I was told that some of the attorneys had

12 been called specifically either by Judge

13 Bucker or Mindy. I would imagine that Mindy

14 would call Donna. I mean, I don't know

15 exactly who, but I was told that some of the

16 attorneys did receive phone calls directly

17 from his office and then others received an

18 e-mail.

19 What had really concerned me was

20 that, again, in one of those numerous

21 requests where I had asked him for

22 rescheduling assistance, I had asked him if

23 we could hear -- I think it was -- yeah,

24 Eddie's -- I can't remember, it wasn't

25 Eddie's. It was something, some motion that

204

1 I had in the McManaway case, and I asked if

2 that would be okay if we heard those after

3 calendar call on the second. So I was

4 particularly concerned that I had a specific

5 request for hearing something that day and

6 that I was not included in the list of

7 attorneys who would be contacted.

8 Q So it was your position that Judge

9 Buckner had contacted Ms. Peek about the

10 rescheduled calendar call but had not

11 contacted you?

12 A No, I think I knew that he had

13 contacted -- I don't remember. I may have

14 said -- I know I was told that he contacted

15 directly, he did or through Mindy, some of

16 the attorneys. But --

17 Q Well, if you could look at Exhibit

18 910.

19 A Uh-huh (yes).

20 Q Does that appear to be a transcript

21 of the Lyons hearing on March 23rd of '09?

22 A Uh-huh (yes).

23 Q And if you look at Page 4, Lines 3

24 and 4 --

25 A Uh-huh (yes).

205

1 Q -- are you saying there that

2 apparently Judge Buckner had informed Ms.

3 Peek but did not inform you?

4 A What I'm saying is that I was told

5 that certain attorneys were contacted

6 directly. Whether or not that was done by

7 Judge Buckner or by Mindy or e-mail or what

8 have you, I don't know. But I didn't

9 necessarily mean him specifically because I

10 don't know if he ever made any of the phone

11 calls. I was just told that some people did

12 receive phone calls coming out of his office.

13 Q And so is your issue with the

14 allegation in Paragraph 94 the word "directly"?

15 A Yes, I would say that would be the

16 primary issue. Yeah. Uh-huh (yes).

17 Q This claim for relief also notes a few

18 comments that you made during the hearing.

19 Paragraph 98 --

20 A Uh-huh (yes).

21 Q -- includes a comment directed to

22 Ms. Peek saying "[Y]ou have lost your moral

23 compass, and you have stopped following the

24 law?"

25 A Uh-huh (yes).

206

1 Q What was your purpose in saying that

2 to Ms. Peek in open court?

3 A I think the best way I can describe

4 that, Carmen, is that when I was in the Court

5 of Appeals on Wednesday giving oral

6 arguments, and Donna was standing in front of

7 -- Leigh, excuse me, was standing in front of

8 the panel making rather specious arguments

9 that the panel was not buying at all, when

10 you are in a court where people really are

11 trying to uphold the law, and really trying

12 to follow the law, while I may have been

13 thinking this on Wednesday I didn't need to

14 articulate it because I think the judges were

15 thinking along these same lines.

16 The problem is, and it's always going

17 back to the same problem in Orange County,

18 sometimes you almost wouldn't resemble it as

19 a court of law, and by this point in time, it

20 was after the election, the blackballing had

21 already begun big time, it appeared that

22 Judge Scarlett had been brought in to kind of

23 finish off with Judge Buckner had started.

24 And I was articulating what was going on in

25 the courtroom that Judge Scarlett appeared to

207

1 be making no effort to halt.

2 Q You said that you didn't need to

3 make this sort of comment --

4 A Uh-huh (yes).

5 Q -- at the Court of Appeals because

6 the judges were with you.

7 A Not with me, but you can tell from

8 their questioning of Leigh that they knew

9 that the -- they knew that the statements in

10 her brief were false. I mean, you remember

11 -- let's go back to when I said she had filed

12 the bogus -- the court order, which was not a

13 court order. She then has to go with

14 something, right, in her brief, or she files

15 no brief. So in her brief she alleges -- out

16 of nowhere she pulls, out of nowhere, that

17 the court order, a child custody order, which

18 clearly says it's for temporary child custody,

19 she says to the Court of Appeals in her

20 brief, it's a voluntary support agreement

21 under North Carolina General Statute 110-132.

22 Okay, unless you're familiar with

23 family law, I can't even begin to tell you

24 why that is completely unbelievable. But in

25 two seconds Judge Stroud made it entirely

208

1 clear to Leigh Peek that nobody on the panel

2 was buying that. And then they kept at her

3 and kept at her and kept at her until she

4 finally admitted that that court order was

5 invalid.

6 So that's what I'm talking about;

7 that when you're in a court of law where the

8 judges aren't trying to run me out of court

9 for whatever reason they've decided they want

10 to do this, and where people are following

11 the law, I don't need to make these kind of

12 frustrated statements.

13 But when -- again, they can run me

14 out, Carmen. I mean, they have. And there

15 is a certain pain in that because this is my

16 hometown. The hometown that I love. But

17 when I'm standing, hearing after hearing,

18 next to my clients who are getting completely

19 screwed by the corruption -- and I took an

20 oath as a public officer to uphold the law,

21 and I upheld the law in the Court of Appeals,

22 I have argued in the Supreme Court of this

23 state, and I have filed a brief coming out of

24 every county in the state and I have never

25 had a problem with the judge, I've never

209

1 missed a deadline, I have never had problems

2 with attorneys in any other counties. You

3 tell me what is going on in Orange County,

4 and how it can be that I am so bad in Orange

5 County, and that is not going on anywhere

6 else in the state.

7 And I will tell you why it is.

8 Because I had the courage to stand up and say

9 that that courthouse is corrupt. And I am

10 paying the price for it. And I don't mind

11 because I did it for my clients.

12 Q When you say that Judge Scarlett was

13 brought in to finish what Judge Buckner had

14 started, what did you mean by that?

15 A Just to get me out. Just to -- she

16 started just doing what Judge Buckner did.

17 Just ruling against me, completely

18 disregarding the law. It made it abundantly

19 clear that I could no longer represent

20 clients because I had become a liability. I

21 couldn't ethically take on a case because I

22 knew that I was going to lose no matter what

23 the law was. And so they had to find

24 somebody else. Someone who is willing to play

25 the game, go along, not say anything.

210

1 Q Can we look at Exhibit 911, please?

2 A Uh-huh (yes).

3 Q Is this a letter that you wrote to

4 Judge Scarlett?

5 A Yes.

6 Q In the complaint it alleges when you

7 later learned that the presiding judge had

8 requested a transcript of the March 23rd

9 Lyons hearing, that you wrote a letter to the

10 judge. And that was denied. Am I'm

11 mischaracterizing this letter?

12 A Wait, what was denied?

13 Q Paragraph 101.

14 A Oh, 101, I denied. Yes -- oh,

15 denied. [Witness Views Document] Yeah, that

16 looks like that should be admitted. Uh-huh

17 (yes).

18 Q And in the next paragraph -- no, I'm

19 sorry, in response to Paragraph 103, you

20 admitted that this letter was not a motion or

21 pleading, but denies the remaining

22 allegations, which I supposed would be --

23 A Oh, "any other type of legal

24 document." Yeah.

25 Q Right. Do you believe this document

211

1 was legally operative in some way?

2 A Legally operative. We, in Orange

3 County, again, it's like we go into court

4 every day, it's like the shootout at the OK

5 Coral. Because you've got no rules.

6 It is not infrequent that letters and

7 things of this nature are filed. Did I not

8 have -- yeah, I filed it. Wasn't there a --

9 there should be a cover sheet that said

10 something like "Certificate of Filing

11 Correspondence"?

12 Q There may be --

13 A I think there was. Yeah. I think

14 there was. Oh, well, let me tell you what

15 happened.

16 Q Let me just say that we may have

17 received this from the District Court judges,

18 we may not have received it from the clerk,

19 in which case it wouldn't have your cover

20 sheet.

21 A What happened was, once I could see

22 the writing on the wall that they were

23 running me out of Orange County, I started

24 filing lots of things. Primarily -- somewhat

25 to protect myself, but also to protect my

212

1 clients on appeal. I wanted the appellate

2 judges to know every step that I was taking.

3 So the one case comes to mind where

4 I asked Judge Buckner three times for

5 scheduling assistance and he ignored me three

6 times, and I know that each one of those

7 requests had a cover sheet. You know, a

8 cover sheet with the caption, certificate of

9 filing correspondence, and I know that's what

10 -- well, I want to say "know," I want to

11 hesitate, but I'm sure that's what I did, and

12 then on that cover sheet, that would be file

13 stamped and this would be attached.

14 Am I the only attorney who does this

15 in Orange County? No. No. Not by any means.

16 Was I doing it a lot at the end? As

17 my ship was sinking, yes. Yeah. I was doing

18 it a lot, yeah.

19 Q So this filing of correspondence, is

20 that a mechanism to include in the court

21 record information that was not presented at

22 hearing or in a pleading or a motion?

23 A Yes, or it could have been a

24 follow-up to something that happened in court.

25 I mean, it could have been any number of

213

1 things. I mean, I've seen attorneys who, for

2 instance, don't want to get heard on a motion

3 and -- well, I'll give you another example.

4 In the Chandler matter, the one

5 where the criminal contempt charge was

6 brought against me, I had sent the letter to

7 the clerk -- no, wait, let me get this right.

8 I had asked Judge Buckner for the

9 assistance. I had written a letter to him,

10 the one that Judge Anderson never saw, and he

11 ignored me. So I felt, well, gee, what do I

12 do next? So I wrote a letter to the clerk.

13 I may have the chronology reversed. I'm

14 sorry.

15 But, anyway, if you want to bring

16 something to the judge's attention, you would

17 take that to the clerk and you would say,

18 "Please, make sure this gets in the file."

19 The clerks, sometimes they will file

20 stamp them, sometimes they won't. But if you

21 ask them to put them in the file, they will

22 end up in the file.

23 Q In this letter you request again that

24 Judge Scarlett recuse herself?

25 A Yes.

214

1 Q Hadn't you already filed a motion to

2 that effect?

3 A Yes, I think that she -- yeah. I'm

4 not sure. I mean, I'd have to look in my --

5 I know I filed a few in my last few cases

6 with her. Lyons, and then another one in the

7 Wall case.

8 Q I think that's all I have on this

9 claim. Let me look briefly at these

10 documents and make sure.

11 Actually, you know what I did not

12 ask with respect to the Eight Claim is, why

13 did you voluntarily dismiss the complaint

14 against Lunsford Long and Donna Davis?

15 A That was a decision I made with

16 Emily. We got a number of affidavits from --

17 I can't remember. It was some decision that

18 we made together. We might have decided at

19 that point in time to see the direction that

20 the appeal took.

21 Q When you say you got a number of

22 affidavits, from whom did --

23 A I mean, they responded. We filed the

24 complaint. Donna filed an affidavit, I think

25 Lunsford filed one, and then they got one

215

1 from -- is his name Steven Russell, I think?

2 Just talking about -- whatever.

3 Q Are you saying these affidavits were

4 filed in response --

5 A Oh, yeah. Yeah.

6 Q Did the content of those affidavits

7 lead you to believe you couldn't prove the

8 allegations in your complaint?

9 A No. It was the exact opposite.

10 Q How is that?

11 A No, I should say that's the exact

12 opposite. What the contents made me realize

13 was another factor as to why Donna and

14 Lunsford were hiding the fact that they were

15 working together, and I felt that they did

16 that so that I couldn't come back and bring

17 that to the Bar's attention.

18 Q I'm sorry, I didn't understand. I

19 asked, did the affidavits make you feel that

20 you couldn't prove the complaint, and you

21 said quite the contrary; and I said, what do

22 you mean, and then I lost track.

23 A Yeah, maybe I did too.

24 They just gave me more information,

25 not all of it relevant to the complaint

216

1 itself, but relevant as to their motivation

2 and why he also would hide the fact that he

3 was helping Donna.

4 I mean, they've alleged that -- do I

5 believe the Donna retained Lunsford? Really

6 retained Lunsford? No, I don't think that

7 happened, but they say that it did. She had

8 an attorney.

9 Q Well, you mentioned these affidavits

10 as part of -- well, you mentioned them in

11 response to a question about why you dismissed

12 the complaint. And I guess I'm not -- then

13 it seems that you're saying, no, in fact,

14 that they were, if anything, supportive.

15 A Well, if you will remember -- no,

16 it's a very valid question and I'm just was

17 getting tired.

18 I think that it was -- remember I

19 had said we had decided to dismiss it without

20 prejudice for other kind of strategic

21 reasons, one of which having to do with the

22 appeal. So that is why we decided to dismiss

23 it.

24 The affidavits were what the

25 affidavits were. They didn't add or take

217

1 away from it.

2 Q Had you filed the notice of appeal

3 from Judge Titus' order at the time you filed

4 the complaint against Long and Davis?

5 A I can't remember. I think that

6 notice of appeal was filed rather quickly,

7 but I don't -- unless you showed me those, I

8 can't comment.

9 Q We can figure that out from the

10 documents --

11 A Okay.

12 Q -- some other time.

13 A Okay.

14 Q Let's talk about the Tenth Claim.

15 The Tenth Claim is about Harrington v. Wall.

16 A Yeah. My last case in Orange County.

17 Q Paragraph 108, you have sort of a

18 narrative response to that, so I'm going to

19 try to it figure out.

20 A Yes.

21 Q Is it true that there was a hearing

22 that was properly noticed and calendared for

23 June 17th of 2009? A

24 "Harrington...was properly noticed and

25 calendared."

218

1 No, it was not noticed and

2 calendared. It was set as a preemptory

3 setting in an order that Judge Scarlett

4 entered, in an order that I believe I

5 prepared and Judge Scarlett signed. Yeah, I

6 did prepare that order.

7 Q So you prepared an order that set

8 forth the date of the hearing.

9 A Correct.

10 Q But yet you contend you didn't

11 receive proper notice of the hearing?

12 A It "was properly noticed and

13 calendared for" -- well, hold on. Maybe it's

14 just semantics. [Witness Views Document] I

15 don't see where I'm denying that, Carmen.

16 Q As I said, it's because of the

17 narrative --

18 A Oh, yeah, I don't deny that in the

19 narrative. I don't see where I deny it. I

20 say "admits that the child custody hearing

21 was peremptorily set by Judge Scarlett."

22 Q So that part is correct.

23 A That's not the same as saying it's

24 noticed and -- well, to me. Whatever. Okay.

25 Q And I believe that language is

219

1 probably lifted from some document. But it's

2 not worth finding where right now.

3 But in any event, is it also true

4 that you did not file a formal motion to

5 continue the hearing?

6 A Yeah.

7 Q Formal motion to continue, correct?

8 A That is correct because there was no

9 day upon which I could file it. Do you want

10 me to give you a really quick narrative of

11 this case or would you rather --

12 Q If you want to.

13 A Let me just do it. Okay. Donna

14 Davis was representing Beth Harrington. Mr.

15 Wall was at calendar call one day very, very

16 confused, with someone who was helping him.

17 I spoke to him outside the courtroom and he

18 was asking me about an entry of default which

19 had been entered. We went down and looked in

20 the court file and we did in fact find out

21 that Donna had entered an entry of default in

22 a custody case.

23 You can't do entries of default in

24 custody cases. Very, very rarely. So I

25 agreed to assist him. Mr. Wall has never

220

1 paid me a penny. I filed a motion to set

2 aside the entry of default. We went into

3 court. I do not believe -- it may be neither

4 here nor there, I don't expect every judge to

5 know everything and I certainly respect it

6 when they don't know it and they ask us to

7 write memorandums.

8 And so Judge Scarlett said, you

9 know, you've got to brief this issue for me.

10 I don't get it. And I said fine, and I

11 prepared the order, and she said by so-and-so

12 a date, you have to have your briefs done.

13 I did the brief, and I believe mine

14 reflected the black-letter law, which is entry

15 of default is a ministerial act, you don't

16 even need to show good cause to set it aside

17 -- and I don't even want to talk about how

18 goofy it is to do an entry of default in a

19 child custody case. So I did my memorandum.

20 Donna never did one.

21 Fast-forward, we're having these other

22 hearings and Judge Scarlett has not ruled on

23 the entry of default. It is crucial to my

24 client to get a ruling on that because

25 appellate law says that even though that is

221

1 an interlocutory order, it is appealable.

2 And it was crucial for me to get

3 that entry of default set aside because if I

4 didn't all of the plaintiff's allegations

5 would be deemed admitted and my client would

6 be severely prejudiced at a child custody

7 hearing.

8 So as we are moving towards the

9 hearing date, I am asking Judge Scarlett,

10 "Would you please be so kind to enter an

11 order." I was the only one who had submitted

12 a brief. Donna didn't even do it.

13 Judge Scarlett didn't do it, didn't

14 do it. Finally we had another hearing. We

15 were about a week away from the custody

16 hearing and I said, "Judge, I need to know if

17 on the 17th we're having a 20-minute hearing

18 or a two-day hearing because I'm getting

19 ready to prepare. If the entry of default is

20 not -- my motion is going to be denied, we

21 are having a 20-minute hearing. If you are

22 going to grant it" -- and inside my head I'm

23 saying, and of course she will because, you

24 know, tons of black-letter law -- "then we

25 will be having a two-day hearing."

222

1 So she said to me, "Prepare for the

2 worst." So that told me, great, she's

3 granting my motion. She read my brief, she

4 gets it, she's granting my motion.

5 So, then, just because, you know --

6 I mean, Carmen, you can only imagine. By

7 this time Emily is suing Donna; Donna does not

8 like me. That's putting it mildly. So I

9 need to protect my client, that was fine. I

10 was glad that Judge Scarlett was going to

11 rule in my favor, but I needed a written

12 ruling because I knew if I didn't have it and

13 we went into the custody hearing I would ask

14 my first question and Donna would say,

15 "Objection, we have an entry of default in

16 place. She can't ask that."

17 So I said, "Judge Scarlet, would you

18 please be so kind to enter your order." And

19 now we're the fourth day away from the

20 hearing and she doesn't respond to my e-mail.

21 And now we're the third day away from the

22 hearing and all the e-mails, I have them all,

23 they're attached to everything that went up

24 to the Court of Appeals, and I said, "Would

25 you please just be so kind, so I can protect

223

1 my client, to enter a written order granting

2 my motion to set aside the entry of default."

3 And do you know what she says in her

4 e-mail? "It's denied."

5 That made no sense for so many

6 reasons.

7 So now I'm panicking. I'm

8 panicking. I'm 48 hours away from a custody

9 hearing, she's allowed me believe that all

10 this evidence is coming in, and now she's

11 saying that she's denying it. Which means my

12 client is going to be completely prejudiced.

13 So I'm representing my client,

14 zealously advocating, trying to protect his

15 rights, and I said to my client, "That's

16 fine, don't panic. We'll get her to enter

17 it. It's going to be an order this big

18 [indicating with hand] and I'll go file your

19 notice of appeal tomorrow. And we will stop,

20 and we will have the Court of Appeals correct

21 this."

22 So then I start with the e-mails,

23 and they are very respectful. I'm always

24 respectful. And I said, "Would you please be

25 so kind to enter the order." We're 48 hours

224

1 away from the hearing. We're 36 hours away

2 from the hearing. We're 24 hours -- and she

3 refused to do it.

4 So instead of me preparing for the

5 hearing that night before the hearing, I

6 don't have a written order, I have no other

7 choice but to file a petition for writ of

8 mandamus to order the Court of Appeals to ask

9 her to enter the order.

10 So then my e-mails switch. And I

11 start telling her, "I can't be in court

12 tomorrow, I will be at the Court of Appeals."

13 I had no other choice. And, you

14 know, this is the pattern that I had seen

15 before, which is they run out the clock on

16 you so you don't know what to do.

17 Okay, so instead of me preparing for

18 the hearing, I stay up literally all night,

19 and I prepare everything for the Court of

20 Appeals. And at 9:00 the next morning when I

21 -- the hearing is on, and I understand that.

22 I'm at the Court of Appeals seeking relief

23 from my client.

24 Did I file a motion to continue?

25 No. It's a joke. Five days -- I mean, the

225

1 Rules of Civil Procedure. Number one, she

2 would gave denied it, and I wouldn't have had

3 enough notice anyway to get -- so I didn't do

4 the motion to continue, but I had all the

5 e-mails which set forth clearly, "Judge, I'm

6 sorry, I have no other choice. I have to

7 protect my client. I'll be at the Court of

8 Appeals."

9 I went, I filed everything.

10 As soon as I left there, I go back

11 to Orange County. Has our hearing started

12 yet? No. It hasn't even started yet.

13 So I try -- I serve them, and she

14 leaves the courtroom. And she doesn't come

15 back. I have no idea what's going on. Donna

16 is there, her clients are there.

17 Q When you say you served them, what

18 do you mean?

19 A Well, you have to serve. You know,

20 I mean, I served them. I handed them all of

21 the writs that had been served at the Court

22 of Appeals.

23 Now, interestingly, I served them in

24 envelopes. I thought that was appropriate.

25 "Donna Davis" on the outside; "Judge Scarlett"

226

1 on the outside. They are saying because I

2 served them and I didn't hand them this, so

3 that they could see it said "Writs," they are

4 now -- I mean, at least, bless her heart,

5 Judge Scarlett is maintaining she didn't know

6 what I gave to her, that was not proper

7 service because it was just an envelope.

8 I proceed to leave the courtroom to

9 call my client, you know, to figure out

10 what's going on with him.

11 Q Let me ask you this. Did you have a

12 face-to-face interaction with Judge Scarlett?

13 A I did not. She was finishing up on

14 another hearing. I went up to the bailiff,

15 who has done an affidavit in this case, we'll

16 get to that in a second, and I said, "Bill,

17 please hand this to the judge," and I watched

18 while he did, and I handed Donna's to her,

19 and then the judge leaves the courtroom and

20 doesn't come back in. Doesn't say a word. I

21 have no idea what's going on.

22 So I go outside to call my client.

23 Bill comes up to me and says, "You can't

24 leave." And I said, "What do you mean I

25 can't leave? I've got to go call my client."

227

1 He says, "The Judge says you cannot

2 leave this courtroom."

3 And I said, "Bill, you've got to give

4 me permission just to call my client."

5 So he says, "Okay, go ahead." I go

6 outside, I call my client. I come back in.

7 I wait a total of 45 minutes. She never

8 comes back in the courtroom. What I later

9 learned from Bill in his affidavit, that when

10 I would leave the courtroom, when I would

11 leave she would come back in. But whenever I

12 would come back in, somehow she would not be

13 there.

14 After waiting and waiting and I had

15 been up all night --

16 Q Can I interrupt you a second?

17 A Uh-huh (yes).

18 Q Bill the bailiff, what is his last

19 name?

20 A It's Italian. His affidavit is in

21 the record in this case, it's all going up to

22 the Court of Appeals. It will come to me.

23 I'll get it to you. I'll get it before I

24 leave here. I just can't -- kind of like --

25 Bill --

228

1 Q In what context did he --

2 A Give an affidavit? I wanted to

3 depose him and the county attorney called me

4 and said, "Betsy, would you be so kind as to

5 accept his affidavit instead? He's a state

6 -- you know, county employee."

7 And I said, "Oh, gosh, sure, that

8 would be lovely." So he signed an affidavit.

9 Q For what purpose?

10 A For what purpose. I knew at that

11 point the case was going up on appeal because

12 everything was just like crazy. And so I --

13 well, let me explain to you what purpose

14 because we didn't get to her entering an

15 order yet.

16 So I went out, called my client,

17 went back and wait 45 more minutes.

18 Nothing's happening, nobody's telling me

19 anything. This is not the type of situation

20 where you're going to ask questions because

21 at that point my name was -- you know, I was

22 blackballed.

23 So I went up to Bill -- Clemente.

24 Clemente. C-l-e-m-e-n-t-e -- and I said,

25 "Bill, I've got to go get something to eat.

229

1 I've been up all night. Here is my cell

2 phone number. Call me. Call me when the

3 hearing begins," and he said, "I will."

4 I went to get something to eat. He

5 never called me, so I decided to go back to

6 my office. And the reason I had to go back

7 to my office was my paralegal wasn't working

8 and I wanted to check my fax machine to see

9 if the Court of Appeals -- I had been on the

10 phone. That was the other thing. I was out

11 in the hall. I must have called John like

12 three times. "John, what are the judges

13 doing? I need to know if they are going to

14 grant a motion to stay -- "

15 Q And by "John," you mean John Connell?

16 A Yeah. And he's like, "Betsy, I know

17 you're anxious and, guess what? It's a bad

18 day. The judges are over at the new

19 courthouse looking at the renovation, but I

20 told them you're concerned and I'm going to

21 grab them as soon as they come back."

22 So I went to my office to check my

23 fax machine to see if the stay came in.

24 Nobody ever calls me.

25 The next day I find out that the

230

1 second I walk out of the courtroom, everybody

2 comes back in and they have a hearing.

3 Well, that's what I thought happened,

4 except that I finally get the court order --

5 well, not finally; a few -- whatever, a week

6 later I get the court order obviously

7 prepared by Donna Davis. Not Judge Scarlett.

8 And this is what the order says.

9 That at the start of the hearing, counsel for

10 the defendant -- me, me -- was viewed sitting

11 outside the courtroom on the bench, and that

12 I didn't come into the courtroom, and so they

13 had the entire child custody hearing without

14 me and without my client.

15 Carmen, you can think I'm a bad

16 person, and you can spin all this little

17 stuff any way you want. But in any

18 courthouse in America -- I mean, I tell

19 people these stories, and I understand you're

20 prosecuting me, the Bar wants to believe I'm

21 bad, but if you tell any attorneys these

22 stories about what happens in the courtroom,

23 they will look at you like you're nuts.

24 I actually, at the last hearing I

25 had with Judge Scarlett, I said, "Judge, with

231

1 all due respect, are you telling me you saw

2 me out there -- "

3 "I didn't see you out there."

4 "Well, Judge, it's in your order and

5 you signed it. It says you saw me sitting

6 out there."

7 And she actually said, "Do you think

8 it's my job to track you down?"

9 And I said, "Track me down? You had

10 my cell phone number, I gave it to the

11 bailiff."

12 I personally thought the hearing

13 started after I left. According to Judge

14 Scarlett's order, they must have started it

15 when I was like on the phone.

16 Do you know what I think now, in

17 retrospect? When I was out on the phone in

18 the hallway talking to my client, they

19 started the hearing. Somehow when I came

20 back in, it stopped. I have no explanation.

21 Q Let me ask you this. What time did

22 you leave the courthouse?

23 A The Orange County Courthouse?

24 Q Yes, to go to your office to get the

25 fax.

232

1 A I think it was about like between

2 10:30 and 11:00. I'm not exactly sure.

3 Q A.M.?

4 A Yes.

5 Q And then you didn't come back to the

6 courthouse that day?

7 A Yes. You know what, though, Carmen?

8 This is all -- I don't mean to argue with you.

9 Your line of questioning leads me to

10 believe that --

11 MR. WITT: No, you can't -- just

12 respond to the questions.

13 THE WITNESS: I'm sorry. Yeah,

14 I have to respond.

15 A That is correct, and that has all

16 gone up to the Court of Appeals. And that

17 will be the issue that I think they will be

18 looking at is, does a judge have an

19 obligation, because it is right in the Code

20 of Judicial Conduct, the obligation that a

21 judge has to ensure that a litigant -- a

22 litigant's constitutional rights are protected.

23 So no matter what Judge Scarlett's

24 animosity would have been towards me on that

25 date that I went to the Court of Appeals,

233

1 that I overrode her decision, I don't care

2 how much she doesn't like me, she should not

3 have done that to my client.

4 So what would you imagine? What

5 does an attorney do at that point in time? I

6 mean, that's a rhetorical question. I'll

7 answer it. What else can you do? You file a

8 Rule 59 and a Rule 60 motion. And what else

9 can I allege? That the judge acted

10 improperly. I'm sitting on the bench and

11 she's got my cell phone number and no one

12 comes out and, "Come on, we're starting."

13 So at least I could have gone in and

14 said, "I'm waiting to hear back from John,

15 I'm waiting to hear if there's a motion -- if

16 they're going to grant my motion for stay."

17 Absolutely -- yeah. None of that

18 happens.

19 I just lost my train of thinking at

20 the end.

21 But -- oh, the Rule 59, Rule 60

22 motion, I file it. Okay? What else can you

23 do?

24 We go and have a hearing on that.

25 She denies it, and Judge Scarlett sanctions

234

1 me, and this was the final, you know, in the

2 coffin.

3 Sanctions me and tells me there was

4 no basis for my Rule 59, Rule 60 motion, and

5 so she sanctions me $8,000 that I'm supposed

6 to pay Donna Davis in legal fees.

7 Now, is that lawful? No. Do I

8 think the Court of Appeals is going to

9 overturn that whole thing? Yes, I think they

10 really, really will.

11 And this, Carmen, if we can end on

12 this note, is how you drive an attorney out

13 of the courthouse.

14 Q Do you believe that you have an

15 obligation when you represent a client to be

16 present in the courtroom when your client's

17 case is scheduled for hearing?

18 A And I was. Yes, I believe you have

19 an obligation. I think these were unusual

20 circumstances. I think the judge had

21 complete advanced notice.

22 I think -- was that good lawyering

23 on my part? Absolutely. Was I representing

24 my client to the best of my ability?

25 Absolutely.

235

1 But, again, that's not the way to do

2 it in Orange County. You do not follow the

3 law. You don't follow the law and you don't

4 cause waves.

5 Q Do you believe that --

6 A And you certainly don't to go the

7 Court of Appeals to tell the Court of Appeals

8 to order a judge to enter an order. You

9 don't do that without getting punished. And

10 I'm now -- got punished.

11 Q Do you believe that filing those

12 petitions that day relieved you of the

13 general obligation to be present at your

14 client's hearing?

15 A I had no other time available to me,

16 and taking into consideration the fact that

17 the case had not even commenced by the time I

18 got back.

19 Carmen, I am so fully confident that

20 in any other courtroom and courthouse in this

21 country that any judge would have walked out

22 or said to the bailiff, "Call Betsy in.

23 We're ready to go."

24 What did I need to file the motion to

25 continue for? I was there at the

236

1 commencement of the case. They just chose to

2 leave me outside in the hallway because they

3 didn't want me to come into the courtroom to

4 defend my client. She didn't understand the

5 law from the beginning. She didn't

6 understand the entry of default.

7 Q My question was, do you believe that

8 going to the Court of Appeals to file these

9 petitions relieved you of your general

10 obligation to appear on behalf of your client

11 at a hearing?

12 A I did both. I did both that day.

13 Q Was it your expectation that your

14 trip to the Court of Appeals would preclude

15 your appearance at the time the hearing was

16 scheduled?

17 A Absolutely. I was rather confident

18 that the motion for stay would be granted.

19 Q No, that wasn't my question.

20 A Oh, okay. Go ahead.

21 Q My question was, was it your belief

22 at the time you decided to go and file the

23 petitions that you would not be present in

24 Orange County at the time the hearing was

25 supposed to start?

237

1 A I notified Judge Scarlett I believe

2 twice, as the clock is ticking, that because

3 she failed to enter an order I had no other

4 recourse but to go to the Court of Appeals.

5 Once again, that is an interlocutory order

6 which is immediately appealable. Why in the

7 farthest stretches of my imagination you

8 would have a judge who knows that -- I told

9 her that, I need to appeal it in advance --

10 why would have a judge not enter an order or

11 instruct opposing counsel, "Hey, Donna," or

12 me, "write the darn thing. Bring it to me.

13 I'll sign it." We could have done it in five

14 seconds.

15 The whole thing was completely insane

16 and unnecessary.

17 Q Let me ask this a different way.

18 Even though you felt it necessary to go and

19 file those petitions --

20 A Yes.

21 Q -- did you still believe that you were

22 required to appear in court at the hearing in

23 Orange County?

24 A Given the fact that I had notified

25 her in two -- I believe in two separate

238

1 e-mails that I would not be in court, that I

2 had no other recourse but to be at the Court

3 of Appeals because she had run the clock out

4 on me -- I didn't say it that way, I would

5 not speak that disrespectfully -- but she just

6 ran the clock out.

7 I am one body. I can't be in two

8 places at the same time, and I knew to

9 protect my client -- by that time, again,

10 Carmen, I know all of my cases are ending up

11 at the Court of Appeals. You have no -- when

12 they're blackballing you and doing this, you

13 know that you will not hit sanity until you

14 get in front of unbiased judges.

15 So in my cases, I'm definitely

16 thinking about certainly what is going on in

17 the courtroom, but there comes a point in

18 time you have no expectation that anybody will

19 do anything rational in Orange County District

20 Court. And at that time, you're doing

21 exactly what you should be doing, which is

22 getting everything in the record, which is

23 filing letters. Because, you know, everything

24 in my life has been crazy for so long, and

25 was until Wednesday -- or at least as long as

239

1 I'm in Orange County. When I'm doing my

2 appeals, you know, that's perfectly fine.

3 Because everybody is acting normally.

4 Q Do you believe that sending an e-mail

5 to a judge saying --

6 A Yes. In this situation --

7 Q Let me finish my question.

8 MR. WITT: Let her ask the

9 question.

10 THE WITNESS: Sorry.

11 Q Do you believe that sending an e-mail

12 to a judge saying that you will not be

13 present at a hearing relieves you of your

14 obligation to be present at that hearing?

15 A Yes, absolutely, under these

16 circumstances I do, when she was just

17 refusing to enter an order; yes, I believe

18 that was the proper thing to do. And if I

19 had to do it all over again, I'd do the exact

20 same thing.

21 Q And more generally, do you contend

22 that sending e-mails to judges is equivalent

23 to filing motions?

24 A In this case when you've got 24

25 hours before a hearing, yeah, yeah,

240

1 absolutely. I had filed motions to continue

2 before with Judge Scarlett, before this in

3 the Lyons case. And every single one was

4 denied whether I had good cause or not. It

5 didn't matter.

6 See, Carmen -- okay.

7 Q Well, I'm thinking also of the

8 e-mails you referred to in which you

9 requested that the judge enter a written

10 order. Do you believe that there is -- that

11 judges are obligated to comply with requests

12 like that, by e-mail?

13 A When -- first of all, the whole

14 e-mailing thing between the judges, that was

15 Judge Scarlett's choice. That wouldn't be

16 mine. She is the only judge who I know

17 really uses e-mail as much as she does. And

18 I think it's -- you know, not the greatest.

19 Is she obligated to enter an order?

20 Yeah, I think that in a child custody matter

21 when you have that much on the line in that

22 type of a hearing, I absolutely do think

23 there is an obligation.

24 If there wasn't, Carmen, there

25 wouldn't be something called a petition for a

241

1 writ of mandamus which the Court of Appeals I

2 think held in 2009, in some court opinion

3 that I read, that that is exactly what you're

4 supposed to do when a judge -- and I'll be

5 happy to give you this cite -- but when a

6 judge doesn't enter an order, that is the

7 protocol. That's what you do.

8 Q You mentioned in your answer that

9 you wrote an e-mail to Judge Scarlett and

10 Judge Buckner and neither of them responded.

11 A Correct.

12 Q Do you feel that judges are

13 obligated to respond to e-mail correspondence

14 from attorneys?

15 A I think that judges who choose to

16 communicate with attorneys using e-mail, which

17 is certainly Judge Scarlett's method -- again,

18 I don't think it's good, but it's her choice

19 -- so if I'm e-mailing her and she's

20 e-mailing me and we're all e-mailing each

21 other, and I ask her in an e-mail to do

22 something which I feel her job obligates her

23 to do it in a timely fashion, I do expect a

24 response.

25 Did I answer your question?

242

1 Q Yes. With respect to the writs --

2 or the petitions for the writs that you

3 filed, was there any reason they couldn't

4 have been filed before the day of the hearing?

5 A Yes. Because I was waiting for her

6 to enter the written order, and so I'm

7 playing a juggling game. By the time she

8 denies my motion, after letting me think that

9 she's going to grant it, we're only I want to

10 say 48 hours away from the hearing. So I'm

11 now kicking into gear. Am I preparing for a

12 hearing -- you know, writs have got to be

13 prepared, and I don't do writs every day.

14 I've only done them once before.

15 The writs that I filed had to have

16 been a half-inch thick because I had to

17 attach for the Court of Appeals -- I mean, I

18 remember I hit Exhibit, you know, I don't

19 know, "S" -- and on this day I sent this

20 e-mail, and on this day -- that's attached

21 hereto as Exhibit A, and this e-mail came

22 back, and then here's my brief, and then she

23 refused this. And it just went on -- I mean,

24 I wanted the Court of Appeals to have a full

25 picture of the lead up. And it was very

243

1 complicated, which is why I stayed up all

2 night doing them.

3 Q Procedurally, though, is there any

4 reason that those petitions you filed could

5 not have been filed on June 16th as opposed

6 to June 17th?

7 A Yeah. Because I sent her an e-mail

8 on June 16th and I was certainly holding out

9 hope that she would do the right thing and

10 enter that order.

11 Q I understand that was the decision

12 that you made, but was there any legal reason

13 or procedural reason that you cannot have

14 filed the petitions the day before you did?

15 A Just the fact that they -- you know,

16 it took that long to prepare them, pretty

17 thorough, and we're talking a tremendous

18 amount of paperwork and probably -- I don't

19 know, took me 12 to 15 hours just to pull it

20 all together.

21 Q Now, is it true that your petition

22 for a temporary stay in this case was denied?

23 A Correct.

24 Q And the petition for writ of

25 mandamus was dismissed?

244

1 A Yes. Again, I know you know the

2 law, Carmen, so I don't need to tell you that

3 how the Court of Appeals rules on petitions

4 -- again I can get you that cite -- has no

5 bearing whatsoever on the merits of the case.

6 What happened was, as you know,

7 after I filed my petitions, they have ten

8 days to respond. So what they did, during

9 that ten days, was Donna prepared the orders

10 from the custody hearing that only she

11 attended with her clients. And so in

12 response they showed the Court of Appeals

13 those orders. Well, that would make my the

14 petitions moot, correct? Yes, it did.

15 So the Court of Appeals did exactly

16 what they should have done. They dismissed

17 them, and I turned around and filed my

18 notices of appeal.

19 Q When did you file your notice of

20 appeal?

21 A There's been four filed in this case.

22 The first one was filed in October, and the

23 last one was filed in January. Because I

24 appealed from every order that Judge Scarlett

25 entered from that moment on, including those

245

1 sanctions.

2 Q Did you instruct your client not to

3 come to court on June 17th, 2009?

4 A I did, yeah, until I got there.

5 Q Is he local?

6 A Durham.

7 Q Did you contact him when you got to

8 the Orange County Courthouse and tell him to

9 come to court?

10 A We didn't even get that far because

11 I wasn't sure what was going on. I contacted

12 him to tell him I had just filed everything

13 in the Court of Appeals. I was waiting. I

14 was completely in the dark. I didn't know

15 when to tell him to come.

16 Q Paragraph 110 alleges you filed a

17 verified motion to recuse Judge Scarlett.

18 A Yeah.

19 Q I see that in your answer you've

20 indicated that the motion was filed on June

21 25th as opposed to June 24th?

22 A Yeah. Could just be a typo.

23 Q No, I'm just wondering is that the

24 reason that the paragraph is not just admitted?

25 A Could be, yeah.

246

1 Q And that motion is Exhibit 1003?

2 A Okay.

3 Q I can't read that file stamp.

4 MR. WITT: Because that was

5 signed the 24th.

6 Q Okay. So is it just the date

7 uncertainty, the reason --

8 A Yeah. Yeah. I think so. Uh-huh

9 (yes).

10 Q Now, you admitted that you were the

11 signer of the verification on this motion.

12 Do you think that that made you a witness, a

13 necessary witness?

14 A Oh, I can't really -- I don't have a

15 response to that. I'm not quite sure. I

16 don't know the answer to that.

17 Q What other evidence could you have

18 offered in support of the allegations in that

19 verified motion to recuse?

20 A I couldn't answer that question.

21 Q So you can't think of any other

22 evidence aside from your testimony that would

23 have supported those allegations?

24 A I filed what I had. I think if you

25 look at it there's quite a bit in that

247

1 motion. I mean, how many paragraphs do we

2 have here?

3 Q I understand the volume of the

4 allegations. What I'm trying to get at is

5 the volume of the evidence.

6 Aside from your own testimony, what

7 might you have you offered in support of

8 these allegations against --

9 A Oh, I would definitely say the court

10 files. All you need to do is look at the

11 Lyons court file. Now, Rolando Lyons, we had

12 also filed a notice of appeal in that case.

13 Q Do you believe the court file would

14 have reflected that Judge Scarlett had

15 developed a strong personal animosity towards

16 you?

17 A Oh, I think if you read Judge

18 Scarlett's orders, it is abundantly clear she

19 had developed a personal animosity towards

20 me. Plus her behavior in the courtroom also

21 made it very clear.

22 Q Can you think of a specific order in

23 which her animosity was displayed?

24 A Oh, absolutely every order that she

25 entered in the Lyons matter -- I've been sick

248

1 twice in my ten years of practicing law, and

2 have missed court on just two occasions. And

3 I woke up on the morning of that hearing and

4 sent Judge Scarlett an e-mail and told her I

5 was ill, that I didn't think I could make it

6 to court and I wanted to get a little bit

7 more rest to see if I could in fact make it.

8 And I think she sent me an e-mail

9 back saying she would hold the hearing open

10 until 10:20 or 10:30 or something like that,

11 and then I e-mailed her back and said that I

12 was just too ill, there was no way I was

13 going to make it.

14 It was a child custody hearing. She

15 made Mr. Lyons proceed without counsel. He

16 had to testify without having an attorney

17 there representing him. She forced him to

18 cross-examine his wife. And he called me

19 later in the day and he wept. And when we

20 went to court, we had one more hearing in

21 that case, he wept again, and I felt so bad

22 for him. [Tearful] He's a bright guy. He's

23 an Army recruiter.

24 And I don't know any other judge who

25 would have done that. And he was so

249

1 distressed by the whole case, and how on

2 another occasion Judge Scarlett scheduled a

3 hearing when his wife was having a child, and

4 I told Judge Scarlett his wife's due date was

5 that day. She refused to grant my motion to

6 continue, that's why I stopped filing them.

7 And I went to court that day and she

8 said, "Where is your client?"

9 And I said, "He's at the side of his

10 wife. She's having a baby." And she would

11 not continue the hearing. And they got to

12 put on all their evidence, and she entered an

13 order that said that if he didn't produce a

14 document that proved that his wife had

15 labored all day, that she was going to hold

16 him in contempt and put him in jail. And it

17 would have destroyed his career. Yeah.

18 That's what goes on.

19 And his baby actually was born that

20 day.

21 Q In Paragraph 10 of this motion --

22 MR. WITT: Which one are we back

23 on?

24 Q The verified motion to recuse,

25 Exhibit 1003, Paragraph 110, you say, "While

250

1 Judge Scarlett finds that the defendant was

2 not in court on June 17th, 2009, she fails to

3 also find that I sent her an e-mail prior to

4 the hearing."

5 A Yes.

6 Q On what basis do you contend that a

7 judge is required to include in her findings

8 of fact information that's not part of the

9 record in the case?

10 A Oh, lord. Why would a judge enter a

11 finding of fact that says counsel is sitting

12 outside the courtroom on a bench? Judges can

13 put all kinds of findings of fact in an

14 order, particularly when they're not

15 preparing the orders but they've having

16 opposing counsel enter the order.

17 She entered another order that said

18 that I sent her one e-mail telling her, on

19 the morning of Rolando Lyons' hearing, that I

20 was sick. That's certainly not something in

21 the record, Carmen, and in fact did not

22 include that I had sent her the second e-mail

23 telling her that I was still not feeling well.

24 I mean, if you look -- read the

25 orders. I mean, that will answer that

251

1 question.

2 Q My question is, you appear to be

3 alleging in Paragraph 10 that it was either

4 an error or an indicator of bias that Judge

5 Scarlett did not find in her order that you

6 had sent her an e-mail. Is that accurate?

7 A I mean, it says what it says. Do I

8 believe I have a right to make a statement

9 like that as a basis for my motion to recuse?

10 Yeah.

11 Q No, my question was, is that statement

12 included in your motion as either an

13 assertion that she made some sort of error in

14 her order, or -- let me stop there. Is that

15 what that allegations is about?

16 A An error in her order. Yes, that

17 she did not put into her order complete

18 findings of fact, yes.

19 Q And so then my question to you to

20 follow up on that is, what is your authority

21 for asserting that it is erroneous to omit

22 from findings of fact information that is not

23 in the record in a case?

24 A Because we -- because that kind of

25 information is in all of her orders. So

252

1 based on the findings of fact that she always

2 puts in her orders, I was just asking her to

3 make this order complete.

4 Q Are you saying that Judge Scarlett

5 always makes findings of fact that are not

6 based solely on the evidence in the case?

7 A Lots of things get into the court

8 orders which are not -- yeah, yeah. And I

9 will, again, give you an example.

10 Q I don't really -- I don't need one

11 unless you really want to.

12 A So the answer to that is yes, and

13 I've seen lots of other judges -- well, I

14 can't say lots of other judges, but I've seen

15 that happen before, yeah.

16 Q I think we've gotten inverted in our

17 logic, though. I'm not asking you if it

18 sometimes happens that things that are not in

19 evidence end up in the findings of fact.

20 What I'm asking is, why it is an error to

21 decline to include in findings an e-mail that

22 was sent --

23 A Sure. Well, if you will notice, I

24 think I allege in here that she had entered a

25 string of what I would call tenditious

253

1 orders, and there is a way of -- I guess

2 we've got to back up and remember that in

3 Orange County the judges normally never enter

4 orders. They never prepare them, they never

5 draft them. That is the job that is given to

6 opposing counsel. Okay?

7 So you have Donna Davis who is

8 writing the order, it's not the judge. And

9 that was the point that the judge was making

10 when it said that I was sitting out on the

11 bench. The judge said, "Oh, I -- that's not

12 my finding of fact." Well, it's funny she

13 says that because I understand why she says

14 it. Donna prepared the order, but it's still

15 the judge signing the order.

16 So back to your question. Donna is

17 preparing the order. Right? Or Leigh Peek.

18 Whoever is on the other side. And they are

19 writing this exactly the way they want to

20 write it.

21 Do they put in things that are not in

22 evidence? Of course they do. Especially if

23 they make me look bad. Do I have a right to

24 object? Yeah, I think I kind of do have a

25 right to object, not that I anticipate

254

1 anything is going to be done about it, but I

2 still do think I have a right to object.

3 So when you think I'm taking her to

4 task for -- what I am taking her to task for

5 is that she's allowing opposing counsel to

6 write these orders that are one-sided, that

7 put in all kinds of junk against me; and that

8 without her, possibly, reading the orders,

9 she's signing them. Why I say I don't think

10 she reads them is if she had read the one she

11 would have seen the statement about me being

12 outside on the bench and maybe she would have

13 called Donna up and said, "Gee, Donna, maybe

14 you saw Betsy sitting on the bench, but I

15 don't know if I did."

16 Q Isn't it standard practice for the

17 prevailing party to draft an order?

18 A You know, yeah, it can be. But I

19 think that it is the judge who signs it, and

20 I'm telling you that if Donna puts in all

21 kinds of stuff that was not introduced into

22 evidence and Judge Scarlett is signing those

23 orders, which she does, and you ask me if she

24 has a tendency to do that, I would say, yeah.

25 Because she is signing off on orders that

255

1 have that -- yeah.

2 So do I have a problem, then, coming

3 back and saying, "Well, Donna prepared the

4 order, she put in the one e-mail but it's

5 making me looking bad, she doesn't want to

6 put in the other. Could you maybe, Judge,

7 instruct Donna to put that in there?"

8 Yeah, I felt I had every right to do

9 that.

10 Q When you say that Judge Scarlett has

11 entered numerous tenditious and contradictory

12 orders, which orders are you referring to?

13 A All of the ones in the Lyons case.

14 Just all of them are just -- I mean, they

15 have -- oh, it's so hard to know where to

16 begin. Subjective value statements in there,

17 saying things like not just it was

18 unreasonable for me to ask for a continuance

19 when my client's wife is having a baby, but

20 it's -- oh, I can't even remember, but we can

21 certainly look at the orders.

22 Q What was your factual basis for

23 alleging that Judge Scarlett knowingly entered

24 orders containing false findings of fact?

25 A The order where she says she sees me

256

1 sitting outside the courtroom. Because she

2 later denied that.

3 Q When you are talking about the

4 finding that you were outside of the

5 courtroom, can we look at Exhibit 1002,

6 Paragraph 3 at the top of Page 2.

7 A Uh-huh (yes).

8 Q In fact, the finding, if you look at

9 the last sentence of that paragraph, the

10 finding was, "Defendant's attorney was

11 observed sitting outside the courtroom at the

12 time the hearing in this case began." Is that

13 right?

14 A Uh-huh (yes).

15 Q So the order doesn't actually

16 identify who did the observing, does it?

17 A No, it doesn't, but this is a court

18 order that is signed by a judge. So I would

19 presume when you're making statements in this,

20 these would be the judge's observations. She

21 signs this order. This is her order.

22 Q I understand, but in other parts of

23 that paragraph doesn't she refer -- the Judge

24 refer to herself as "The Court"?

25 A You know, Carmen, I -- you know,

257

1 it's in the passive tense, I would agree with

2 you in that sense.

3 Q You understand that an allegation

4 that a judge knowingly make false findings of

5 fact is a significant allegation. So I want

6 to make sure that we've explored what your

7 basis was for saying that.

8 A Well, I can go back and look at some

9 of the Lyons orders and -- you know, but --

10 unless you have those in front -- we can go

11 through those, but --

12 Q I do not believe I have any of those.

13 A I'll go look at those.

14 Q So offhand, aside from that order we

15 just --

16 A That one jumps out at me just

17 because we've been talking about this case,

18 but she has entered other orders and I'll

19 take a look at them.

20 Q Other orders in which you had facts

21 that supported an allegation that she

22 knowingly made false findings?

23 A I believe so, yes.

24 Q Paragraph 116 of the complaint

25 alleges that you filed a motion for relief

258

1 from judgment in Harrington v. Wall, and that

2 was denied. I'm trying to figure out why.

3 A Because I didn't ask to set aside

4 all the orders she had entered. You didn't

5 delineate which orders, and I think I had

6 testified that I had prepared one. I did not

7 ask to set aside the order that I prepared.

8 It was only the orders that she had entered

9 after -- subsequent to the custody hearing at

10 which I was not invited to attend.

11 Q Okay. I'm looking at Exhibit 1007,

12 Paragraph 3, and I think that is where the

13 allegation came from.

14 A Okay. What allegation?

15 Q In Paragraph 3 you say that your

16 client "filed a verified Rule 59, 60 motion

17 asking that he be relieved from the orders

18 entered by Judge Scarlett and that he receive

19 a new trial."

20 And I think the allegation in the

21 complaint at Paragraph 116 is essentially

22 based on that statement. So is it correct to

23 say that you are seeking --

24 A Let me clarify. I understand what

25 you did, Carmen, but if you had gone and

259

1 looked at the Rule 59 and 60 motions, of

2 course in that motion you would have seen

3 which orders that I was seeking relief from.

4 So I don't think we need to make a big deal

5 about this. I'm just explaining that I

6 denied it because in your allegation you seem

7 to want to include all orders, and I just

8 wanted to be specific as to which orders the

9 Rule 59, 60 motion applied to. So it's not a

10 biggie.

11 Q All right. Let's talk about

12 Paragraph 120, which is regarding the subpoena

13 that you issued to Judge Scarlett and --

14 well, first of all, again you say that you

15 issued a subpoena to Judge Scarlett on behalf

16 of your client.

17 A Correct.

18 Q Are you simply stating that to

19 clarify that you are not the plaintiff in

20 this?

21 A That's all, yeah.

22 Q Or, I'm sorry, I guess your client

23 was the defendant.

24 A Yeah, defendant. That's fine.

25 Q Now, you also say that you issued the

260

1 subpoena for the purpose of determining if

2 your statements during the 2008 judicial

3 campaign regarding the reforms needed in 15B

4 District Court prevented Judge Scarlett from

5 ruling impartially in your client's cases,

6 correct?

7 A Correct.

8 Q If you had yet to determine that

9 Judge Scarlett had such a bias, then why did

10 you allege it in your motion?

11 A If I had yet to determine -- oh.

12 Well, you're saying that -- let me get this

13 again because I'm getting tired.

14 I've alleged that she has a bias,

15 and so now you're asking me if you really

16 believed she had a bias why did you need to

17 depose her? Is that what you're asking me?

18 Q No. What I'm asking is, we looked

19 earlier at your motion to recuse her, which

20 -- 1003. And in Paragraphs 4, 5 and 6, you

21 have alleged that your statements during your

22 judicial campaign did in fact create an

23 animosity on Judge Scarlett's part towards

24 you. Correct?

25 A Yes.

261

1 Q So you've made that allegation and

2 then subsequently you seek to subpoena her,

3 correct?

4 A Yes.

5 Q My question is, that if you sought her

6 testimony in order to prove -- I'm sorry, in

7 order to determine whether she was biased,

8 then why had you already alleged that she was

9 biased?

10 A Well, I had filed the motion to

11 recuse. What I fully anticipated was due to

12 the nature of the allegations -- at least the

13 case law I've read, if you have something

14 with this nature of allegations, that it's not

15 going to be heard by her, that she's going to

16 bring in another judge to hear it.

17 Let me just talk briefly about the

18 subpoena.

19 I have never subpoenaed a judge, and

20 I did a bit of research before I did it, and

21 I thought long and hard before I did it. I

22 know that it is very, very, very unusual for

23 a judge to testify in court or to be

24 subpoenaed, but I also know that is not

25 unheard of.

262

1 I could have set my motion for

2 hearing, asked for a visiting judge, and I

3 could have noticed her to testify at the

4 hearing. I mean, whether or not you think

5 that's, whatever, prudent to do, I believe I

6 had the legal right to do that. I didn't

7 want to make her testify in open court. I

8 wanted to depose her. I felt that she was

9 biased, but I wanted to confirm -- I mean, I

10 had to put on evidence at a hearing and I

11 wanted to be able to -- I mean, allegations

12 are allegations. I believe that I did have a

13 basis, but I wanted to find out how strong

14 that basis is, and what effect that was

15 having on my clients.

16 At this point in time, again, I knew

17 this case was going up to the Court of

18 Appeals. And it has. And all I was trying

19 to do is protect my client. I didn't want to

20 get up to the Court of Appeals, I didn't

21 want, you know, any sort of a ruling to be

22 that I had not gone down every avenue that I

23 could to protect him.

24 Q Now, Judge Scarlett had declined to

25 recuse herself from --

263

1 A Yes.

2 Q So did you believe that if compelled

3 to testify she would have provided evidence

4 that she was unable to rule impartially in

5 your cases?

6 A I think if she had testified

7 honestly she would have had to have admitted

8 that.

9 Q Despite the fact the she had

10 declined to recuse herself.

11 A Are you saying she -- she didn't --

12 I'm not -- are you saying that she denied to

13 recuse herself and then I issued the subpoena?

14 Q I'm asking -- I asked first had she

15 declined to recuse herself.

16 A No, I don't think so. I mean, I

17 might be wrong, but I don't think so. I

18 mean, the natural -- I filed the motion -- in

19 fact, I filed two -- hers was not the only

20 subpoena I issued. I issued a subpoena to

21 her, and I realize, again, it's a judge, and

22 I know that. And judges very rarely testify,

23 but on the occasion they do, sometimes it is

24 associated with a motion to recuse. So I

25 subpoenaed her and Bill Clemente. She refused

264

1 and Bill's attorney called me up and said, you

2 know, "Bill doesn't want to come to a

3 deposition, will you take this affidavit?"

4 And I said, "Sure, that'd be great."

5 Q When you say you've never subpoenaed

6 a judge, do you mean prior to issuing the

7 subpoena to Judge Scarlett?

8 A Yeah. I have to be careful with

9 that because I got nabbed on that. I said

10 that and then Grady Balentine said in front

11 of Judge Anderson, because I'd forgotten, he

12 had said something about Ms. Wolfenden

13 subpoenaing judges, and then he was

14 corrected, so I just misspoke because I don't

15 associate the two.

16 When the criminal contempt charge was

17 brought against me that David ultimately

18 represented me in, in that case, before I had

19 counsel, I wanted Judge Buckner to appear to

20 testify that I had written that letter to

21 him. And although I found it kind of

22 interesting that neither one of them did

23 appear, that was the one prior occasion when

24 I did issue a subpoena to a judge to testify

25 at a hearing.

265

1 Q Why did you find it interesting that

2 they didn't appear?

3 A I just found it interesting that the

4 judge who brought the show cause order

5 against me -- again, I didn't really -- I

6 just thought it was interesting. I fully

7 expected the judge who brought it to be there

8 to testify. Because he brought it and it's a

9 long thing, and why wouldn't he be there?

10 Q Didn't both Judge Anderson and Judge

11 Buckner object to those subpoenas?

12 A Yes, yes, they did, but I still

13 thought that they would appear on their own

14 behalf. I just figured they didn't like that

15 I was asking them to come.

16 Q And their objection to those

17 subpoenas was on grounds of judicial immunity?

18 A Do you have those? It was a funny

19 legal --

20 Q I do.

21 A Can I just look at those?

22 Q You have them too.

23 A Let's look at those because I

24 remember Grady made a point that --

25 Q They are at the end of the -- 1013

266

1 and 1014. 1013 are the subpoenas, and 1014

2 are the motions to quash.

3 A Yeah. It's the motions to quash I

4 want to look at. Okay. Just let me review

5 this because there was something -- maybe I

6 thought differently about it. [Witness Views

7 Document]

8 Yeah, just some thoughts that are

9 coming back to me. The judicial immunity

10 thing is certainly there. I remember

11 noticing the fact that he said it was

12 procedurally defective, that I had not served

13 him properly, even though I had served him by

14 certified mail.

15 Q You said that subpoenas to the

16 judges were in connection with the criminal

17 contempt proceeding?

18 A Correct.

19 Q In your subpoena issued to Judge

20 Buckner --

21 A Uh-huh (yes).

22 Q -- you commanded him to produce

23 "Copies of any and all correspondence received

24 by him from an attorney within the past five

25 years in which he was accused of engaging in

267

1 ex parte communications with Carol Holcomb,

2 or any other attorney."

3 A Yes.

4 Q How is that relevant to the criminal

5 contempt proceeding?

6 A I can't remember at this time. I'd

7 have to go back and look at Judge Anderson's

8 show cause order.

9 I will tell you that the ex parte

10 communication I'm referring to is the same

11 one I told you before with Donna Bennick.

12 Q Donna Bennick?

13 A The attorney that told me that Judge

14 Buckner was caught engaging in the ex parte

15 communications. Opposing counsel was Carol

16 Holcomb.

17 Q Okay, so you were seeking information

18 to corroborate that rumor?

19 A I can't remember. I'd have to go

20 back and look at his show cause order.

21 Q I think I do not have anymore

22 questions about the specific answers to the

23 amended complaint. I have a couple of

24 general questions.

25 A Uh-huh (yes).

268

1 Q Exhibits 2002 through 2004 I believe

2 are motions to recuse that you filed seeking

3 recusal of all District Court Judges?

4 A Yeah. These are the ones I filed

5 after I spoke to Carl. I think, if you'll

6 see, I had the conversation with him -- yeah,

7 I had the conversation with him that day, if

8 I'm not mistaken, because if I'm not mistaken

9 this is the day, or very close to it, when

10 Judge Anderson issued the show cause order.

11 And he said, "This is what you've got to."

12 So I sat down and the same day we spoke on

13 the phone, I did them. And this is the one

14 that Judge Buckner denied in this case and he

15 refused to enter the order. So I could never

16 appeal it.

17 Q You said a second ago, "He said,

18 'That's what you've got to do.'" Who is "he"

19 and --

20 A Carl. Carl. I called him and said,

21 "He's trying to put me in jail."

22 And he said, "I don't doubt it." He

23 said, "I'll tell you, there's two judges who

24 have been campaigning publicly against you."

25 And I said, "What should I do?"

269

1 And he said, "Until the election is

2 over, you've got to file motions in your

3 cases to recuse all of the judges."

4 I did, and then I realized "Who is

5 going to hear them?" So I called Paul, and I

6 told Paul what was going on, and I said, you

7 know, "I filed the motions; who is going to

8 hear these?"

9 And he said, "You've got to file

10 another set of motions saying that -- or

11 asking that a visiting judge hear the

12 motions." So I did that.

13 Q Did you do any legal research as to

14 the requirements for a valid motion to recuse

15 under North Carolina law?

16 A Well, you know -- yeah, I read cases

17 and I -- to me, which is always very

18 interesting, is that what I believe the basis

19 for a judge recusing him or herself is, to

20 paraphrase, if you ask the common guy out on

21 the street to give you -- let's say you tell

22 them the facts. "I'm running for judge; I'm

23 running on an anti-corruption platform.

24 Everybody is ruling -- a certain judge is

25 ruling against me. I have been told a

270

1 certain judge does not want me to become

2 judge."

3 "From an objective standpoint, do you

4 think that judges should hear the case?"

5 If the answer from that kind of

6 invisible person is, "Gee, that just doesn't

7 sound quite right to me," it's not a

8 subjective, it's an objective view; then, in

9 fact, there would be a basis for the motions.

10 And I certainly felt, taking into

11 consideration, again, that I was running for

12 judge and, you know, everybody knew that I --

13 I think a lot of people knew that I was

14 alleging that Orange County District Court is

15 corrupt.

16 Q Had you done that research before

17 you filed these motions that we just looked

18 at seeking to recuse all the judges in the

19 district?

20 A Yes, I think so. I can't remember

21 under what context, but, yeah, because until

22 the election this was not something that I

23 ever contemplated doing or felt the need to

24 do. And, again, it's not about me, I don't

25 file them for myself, but I definitely felt

271

1 that I needed to file them for my clients.

2 Q In doing that research, did you

3 learn that a motion to recuse requires a

4 showing of substantial evidence?

5 A I believe that there is a showing of

6 evidence. But, again, I just told you also

7 what my understanding of the test is. It's

8 an objective test and, you know, I think that

9 considering what was going on I fully believe

10 that every one of my motions would pass that

11 test.

12 I mean, I think as attorneys we look

13 at things differently. We're inside the

14 system and we forget how the average Joe on

15 the street appears, but that's the test.

16 It's what does that guy think. Because it is

17 ultimately about the clients, isn't it?

18 Q Well, would you agree that appellate

19 case law on this issue has stated that in

20 order to justify recusal of a judge you must

21 show substantial evidence?

22 A I'd have to go back and look at the

23 cases to see what the exact wording is to see

24 if the word "substantial" -- it wouldn't

25 surprise me if that word was in there. And

272

1 did I believe that every one of my motions to

2 recuse, did I carry that burden in my

3 motions? Yes, I believe absolutely I would

4 have.

5 Q I'm looking at in Exhibit 2002 which

6 includes a request to recuse Judge Pat

7 DeVine. What was your factual basis for

8 seeking Judge DeVine's recusal from all of

9 your cases?

10 A First of all, I'm not sure what --

11 the dates, but because Carl told me that I

12 should, so I did; and she sua sponte recused

13 herself. Not from all my cases, but from

14 this one.

15 Q Well, let's look at Exhibit 2004.

16 In this motion you are also requesting that

17 Judge DeVine be recused. What was your

18 factual basis for asking that she be recused

19 in this case?

20 A Then that just would have been Judge

21 Fox's recommendation that all of the judges

22 be recused.

23 Do I have her in some and not

24 others? Is that what you're trying to -- I

25 mean, I don't know. I have to sit here and

273

1 look at whose names I put in here.

2 Yeah, yeah, yeah. July 30th. Yeah.

3 This was the day I spoke to Judge Fox and he

4 told me that I needed to file motions

5 recusing all of the judges.

6 Q Well, I guess I'm not asking why did

7 you file it, which you say was based on his

8 recommendation.

9 A Right.

10 Q I'm asking what was the factual basis

11 to support your contention that Judge DeVine

12 was improperly biased and therefore should

13 not hear any of your cases?

14 A Where do I say that? I don't see

15 that I say that.

16 Q Do you believe that in order to

17 justify recusal of a judge there needs to be

18 a showing of bias?

19 A First of all, as I think I say in

20 one of my motions or in something, that

21 before I filed for judge I was rather naive

22 in terms of the political animosity that that

23 can create. Let me give you I guess maybe

24 one example.

25 From the moment that I filed for

274

1 judge, Judge Coleman recused himself from all

2 of my cases. Is Judge Coleman biased against

3 me? Of course he's not. But how does the

4 public view that? So there's no substantial

5 bias there, but it's an objective test. When

6 you run for judge, should your opponent not

7 hear your cases until the election is over?

8 Yes. Should all the judges recuse

9 themselves? Probably not. Would I have

10 filed to recuse all the judges if Carl Fox

11 had not advised me to do so? No.

12 I went with his recommendation. I

13 don't know. I was in uncharted territory.

14 Q So are you now saying you don't

15 believe that there was sufficient factual

16 basis to request that Judge DeVine, for

17 example, be recused from hearing all of your

18 cases?

19 A No, I'm not saying that, Carmen.

20 I'm saying that if the test is what the

21 objective guy on the street sees and knows,

22 which is I'm running for judge, I'm saying

23 the courthouse is corrupt, there is a huge

24 backlash.

25 What I'm saying is that I am naive.

275

1 I feel naive that before Judge Fox made that

2 recommendation, I should have done that. The

3 test was met. Anybody on the street, if you

4 give them the facts, would say, "Hey, guess

5 what? Until the election is over, you really

6 shouldn't be having -- if you're going to be

7 out there talking to people saying that huge

8 changes are needed in Orange County, and

9 guess what, you can get a divorce in Durham

10 County in 18 months, and it's going to take

11 you eight years in Orange County," does

12 common sense, would the average person say,

13 "Maybe you really don't want those judges

14 hearing your cases?" Yeah, I believe I would

15 meet that test.

16 Q My question is, in Exhibit 2004, you

17 request that Judge DeVine be recused from

18 hearing any matter in this case. What facts

19 support that request? What specific facts

20 support the request that Judge Pat DeVine not

21 hear any of your cases?

22 A The specific facts would be that --

23 I can't tell you except that I have a

24 Superior Court judge telling me what I

25 believe he's telling me to be helpful to keep

276

1 me out of jail. I'm following his

2 recommendation.

3 Q Are you certain -- you said that

4 Judge Coleman recused from hearing any of

5 your cases?

6 A Absolutely. He did not hear a

7 single one, yes.

8 Q When did you file for the candidacy?

9 A February of 2008.

10 Q And when do you believe he recused

11 from hearing your cases?

12 A I must have taken something in front

13 of him because he didn't do a formal order,

14 and I can't remember how it happened. But,

15 in fact, in the Wall case I believe that he

16 was the judge or he was going to be at that

17 first hearing in the Wall case. That's

18 interesting because I think that was way

19 after the election. And even then, he didn't

20 get back into my cases. They took him off at

21 the last minute and they put in Judge

22 Scarlett. But I don't know if that had

23 anything to do -- yeah, he never heard any of

24 my cases, that I know of. I mean, I'll have

25 to go back and look, but I'm almost positive

277

1 that from the moment I filed, he -- but, I

2 mean, I've been told that's completely

3 appropriate.

4 Q If you look --

5 A It's how it appears to your client.

6 Q If you look at Exhibit 210, which

7 appears to be a letter from you to Joe

8 Buckner --

9 MR. WITT: 210 or --

10 Q I'm sorry, 208, the second paragraph?

11 A Yeah.

12 Q Does that indicate to you that, in

13 fact, Judge Coleman did not recuse from all

14 of your cases after you filed for --

15 A No, no, it doesn't. That indicated

16 to me that he did it, but that I didn't think

17 -- again, a little bit of my naivete, that I

18 didn't think it was necessary.

19 Q Well, in this letter, don't you say,

20 "I was in front of Judge Coleman two weeks

21 ago in traffic court and anticipate having

22 other matters before him between now and the

23 election"?

24 A Yes. April 18th. Yeah, but I don't

25 think -- I don't know what happened in

278

1 traffic court, but it was not anything major.

2 And he never heard anything else.

3 Q But, in fact, he had not, as a

4 blanket rule, recused from any matter in

5 which were appearing, correct?

6 A Like I said, he did not enter a

7 formal order, but I never saw him again. I

8 believe I had cases -- you know, I'd have to

9 go back and look, but it was kind of my

10 understanding that -- I can't remember why I

11 had that understanding, but I did.

12 Q Did you agree to represent new

13 clients in Orange County after the date --

14 let's see, July 30th, 2008, when you filed

15 these motions to recuse all the judges?

16 A New clients. The only one -- July

17 30th, 2008. The only one, I think, I'd have

18 to go back and look, Adrian Wall would have

19 been new after that. But, again, in Adrian's

20 case, it was after the election and Judge

21 Coleman was the judge who was scheduled to

22 hear it. So when we into court, I did

23 anticipate that Judge Coleman would be

24 hearing that case.

25 I can go in tomorrow, you know, and

279

1 take cases in front of Judge Anderson and not

2 put my clients at any risk because he is a

3 man of complete integrity and I know he would

4 treat me fairly and follow the law. I mean,

5 that's just the type of person he is.

6 Q As of July 30th, 2008, did you have

7 that same impression of Judge Anderson?

8 A I will always have that impression of

9 Judge Anderson. Yeah.

10 Q Then on what basis did you file

11 motions seeking to recuse him from your cases?

12 A When I filed all -- just because

13 Judge Fox told me to. I mean, these guys

14 have been running, they know the politics.

15 This was all completely new for me. And I

16 think, to be honest, there is a set of rules

17 that certainly applies to -- if you look at

18 the appellate cases, probably the ones you

19 and I have read, Carmen, for the most part

20 they are going to address if the judge has

21 the conflict with the client. But we're in a

22 little bit -- I mean, I don't know, I think

23 there are far fewer cases where you're saying

24 the conflict is between the judge and the

25 attorney. And in a political setting I think

280

1 it becomes even a little more different.

2 Q We've talked today about lawsuits

3 that you've filed, I understand on behalf of

4 clients, but naming other attorneys as

5 defendants. And I believe we've talked about

6 Donna Davis, Lunsford Long and Leigh Peek,

7 correct?

8 A Uh-huh (yes).

9 Q Are there any other lawyers against

10 whom you have filed lawsuits either on behalf

11 of clients or on your own behalf?

12 A No, not that -- I do not believe so.

13 Unless you have one in the book that I can't

14 remember because it's getting late, but, no,

15 I don't think so.

16 Q Do you recall ever threatening to

17 file suit against other lawyers aside from

18 the three we've talked about it?

19 A Yes. Carol Holcomb.

20 Q Any others?

21 A No. I know that Tony Taibi -- yeah,

22 Tony Taibi's client, Butch Klein, had filed

23 -- I think I had mentioned that earlier, a

24 lawsuit against me and Kathy that was

25 dismissed without prejudice. The only reason

281

1 I mentioned it, I don't know if there was any

2 -- but that didn't involve Tony. Carol is

3 the only that's coming to mind right now.

4 Q When did you threaten to file suit

5 against Carol Holcomb?

6 A Carol -- this is going back. I was

7 out on my own for not too long, so I want to

8 say maybe 2004, 2005. I was representing a

9 woman and Carol told her client -- she was

10 representing the husband, that I had been

11 fired from every job that I had ever held.

12 And my client came back to me and was

13 seriously questioning the level of

14 representation that I could give her. And

15 she told me that Carol had told her husband,

16 who had told her, that I had been fired from

17 every -- lawyer, you know, as an associate.

18 And it was completely untrue.

19 * I would believe even -- I don't

20 know if Lunsford would agree, but when I

21 resigned from both of those positions I know

22 Susan Lewis wanted me to stay on. I don't

23 really know how Lunsford felt. It's kind of

24 a different story.

25 But, anyway, I told her that I felt

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1 that those comments were defamatory and that

2 she didn't have any right to make them. She

3 then got Bob Epting involved and later Bob

4 wrote me a letter, Carol did or something,

5 and there was an apology and she said that

6 she had gotten me confused with another

7 attorney, and that she regretted making those

8 statements.

9 Q And at some point you've talked a

10 lot about misconduct you perceived judges have

11 engaged in. Have you reported that

12 misconduct to Judicial Standards?

13 A I have. I have reported Judge

14 Buckner once officially. On other occasions

15 I've spoken to Paul about things that were

16 happening. And when Judge Scarlett held the

17 hearing without my client or myself being

18 present, Adrian filed a complaint with the

19 Judicial Standards Commission and I filed a

20 supporting one.

21 Q And that was in reference to the

22 June 2009 hearing?

23 A Yeah, just in reference to

24 everything, but mostly primarily the fact that

25 she held the hearing without him being

283

1 present or me being present.

2 Q Have you received any notification

3 regarding the resolution of the complaint you

4 started regarding Judge Buckner?

5 A In Judge Buckner's, the first formal

6 one, I think I had mentioned earlier they

7 wrote me a letter back and said that the

8 issues were proper -- I'm sure they have like

9 a form letter -- but that the issues that had

10 been presented were more appropriate for an

11 appellate solution.

12 I found that interesting because I had

13 alleged that he was engaging in cronyism and

14 kind of stuff like that, but what have you.

15 And, so, yeah, I got that letter.

16 And then Adrian, as well as myself,

17 got a letter from the JSC saying they were

18 not going to pursue anything against Judge

19 Scarlett.

20 Q Did that letter indicate a basis for

21 that decision?

22 A Not that I remember. I think

23 Adrian's was short and mine was pretty short.

24 Q I believe you characterized the

25 judicial standards complaint against Judge

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1 Buckner as the first report. Did you make

2 more than one formal record?

3 A I can't remember if I did more than

4 one formal. I don't think I did. I may be

5 wrong. I just know that on a couple of

6 occasions I did call Paul. Certainly the one

7 when I said, "Okay, Paul, I've filed all the

8 motions to recuse. Now what do I do?" and he

9 gave me that advice.

10 And then I think on another occasion

11 I called him after probably something horrible

12 had happened to a client in the courtroom and

13 had talked to him about that.

14 Q Did you call Paul Ross to discuss

15 the rumors about Judge Buckner's personal

16 life that we talked about this morning?

17 A I do not believe -- I don't know. I

18 don't think I did.

19 Q And just for clarification for the

20 record, Paul Ross is the Executive Director

21 of Judicial Standards Commission, is that

22 right?

23 A Yeah. In fact, that may have come

24 up at one point in time because I remember

25 saying something to Paul to the effect that

285

1 -- remember discussing, maybe at one point

2 asking him, like why Judge Buckner wasn't

3 removed from the bench back in 1998 when that

4 -- I remember having a discussion with him

5 about that. I don't remember what his answer

6 was. Or I said something like, "Why didn't

7 the Judicial Standards Commission

8 investigate," and I think his answer was,

9 "Well, how do you know we didn't," or

10 something like that and I just let it go.

11 Q And, again, you're referring to a

12 case which was settled without any judgment

13 being entered, correct?

14 A Yeah. I looked at the settlement

15 and it's your standard settlement, and it

16 says that it was settled to the satisfaction

17 of both parties. I have a copy of it.

18 Q And by "standard settlement," is it

19 correct to assume that it does not admit any

20 wrongdoing?

21 A That is correct, nor does it give

22 any -- assuming there was any financial, you

23 know, whatever. I have no way of knowing.

24 I'm assuming if there was, that was

25 completely confidential.

286

1 MS. BANNON: I think I have

2 blessedly run out of questions.

3 What I would like to do, just

4 for the record, is -- do you guys

5 want to follow up?

6 MR. WITT: No questions.

7 MR. FREEDMAN: I have just about

8 an hour's worth. No, we have no

9 questions.

10 MS. BANNON: Can you put a little

11 emoticon [phonetic] in the transcript

12 for that? A little smiley?

13 But what I did want to say was

14 that -- I think for the record what

15 I'm going to say is that I'm going

16 to hold the deposition open in case

17 we need to come back at some later

18 time and deal with authenticating

19 documents. I'm hoping we don't.

20 Of course, I would notice that

21 sufficiently in advance if we have

22 to do it, but hopefully you all can

23 slog through this and we can get

24 something in writing about which

25 exhibits are okay and which ones we

287

1 need to work on authenticating for

2 the hearing.

3 And I think that's all I've got.

4 _ _ _ _ _ _ _ _ _

5 STIPULATION

6 It is hereby stipulated and agreed,

7 by and between the parties to this

8 proceeding, that the copy of exhibits as

9 used by the witness during the proceeding

10 will be attached to the original sealed

11 transcript. The original exhibits will

12 be retained by Ms. Bannon. Mr. Witt

13 received a copy of the complete exhibit

14 notebook at the beginning of the

15 proceeding.

16 It is hereby stipulated and agreed,

17 by and between the parties to this

18 proceeding, that the reading and signing

19 of the foregoing deposition be, and the

20 same are, hereby reserved.

21 AND FURTHER DEPONENT SAITH NOT

22 (Deposition Completed: 4:00 p.m.)

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WITNESS CERTIFICATION I, ELIZABETH J. WOLFENDEN, hereby certify, I have read the foregoing pages which contain a correct transcription of the answers given by me to the questions herein recorded. My signature is subject to corrections on the attached errata sheet, if any. Signed this ______ day of __________, 2010. _____________________________ ELIZABETH J. WOLFENDEN Sworn to and subscribed before me, this the _________ day of ________________, 2010 _____________________________________ Notary Public My Commission Expires:

289

E R R A T A S H E E T CASE NAME: NCSB v. ELIZABETH J. WOLFENDEN WITNESS NAME: ELIZABETH J. WOLFENDEN DATE TAKEN: JANUARY 29, 2010 PAGE-LINE READS SHOULD READ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ____|____|_________________|__________________________ ________ No Corrections. ______________ ____________________________________ Date ELIZABETH J. WOLFENDEN