- Posted August 14, 2013 by
This iReport is part of an assignment:
The written word: Your personal essays
Judge Caught Lying, Board Does Nothing
A worthy judge, someone moral, intelligent and unbiased, is a crucial component of the U.S. Justice System. Without such an ethical compass, corrupt and unsatisfactory decisions will affect individual lives, families and even our laws. The constitutional foundation of the United States has always contained checks and balances. The purpose of these balances is clear: to ensure our rights as citizens are being protected. In the case of Merit Systems Protection Board Judge Daniel Turbitt, these checks and balances have failed.
If you’ve ever googled the name Daniel Madden Turbitt you may have come to the conclusion that this person should not be a judge, and you’d be right. With the Coalition for Change putting him on their Merit Systems Protection Board (M.S.P.B.)Wall of Shame and stories of falling asleep at trial, it’s safe to say he isn’t a judge you would want to get. Unfortunately, it turns out Turbitt is a lot worse than anyone could have expected. On September 26th 2011 David Noble Jr. recorded a pre-hearing conference call with Judge Turbitt and caught him lying on tape. Noble tried to get a different judge, worried about the prejudice his lie displayed, but Turbitt refused to disqualify himself. The Trial that followed on November 4th of that same year shows some of the worst behavior a Judge can participate in, and is a prime example of a much larger problem with the entire M.S.P.B.
Noble was in front of the Judge after being removed on July 22nd 2011 for AWOL, with over 36 years at the United States Postal Service (U.S.P.S.) and an unblemished disciplinary record at the time of removal. The National Association of Letter Carriers (N.A.L.C.), a letter carrier union, has a collective bargaining agreement with the U.S.P.S. requiring progressive discipline before removal, which Noble did not receive. But Noble had already informed the U.S.P.S. by letter dated February 8th that he considered himself constructively suspended due to intolerable working conditions, including being denied pay he was due, being set up on false charges and having his access to the grievance procedure blocked. Noble literally wrote the book on Postal Service discipline, with the N.A.L.C having printed and distributed thousands of copies of his Defenses to Discipline, so he knew he wasn’t being removed because he was AWOL, it was because he is a whistleblower. Intolerable working conditions were nothing new to him, having been subjected to them in various forms for almost two decades now.
In 1994 CNN did a national story on David Noble Jr. after he blew the whistle on the N.A.L.C. and its highest ranking officers for making payments to themselves that were not reported to, or approved by the membership. Almost twenty years later that case is still going, with the U.S.P.S. and the N.A.L.C. having engaged in a two-on-one battle with Noble ever since. With multiple National Labor Relations Board (N.L.R.B.) decisions in Noble’s favor, the Postal services attacks are well documented. Noble’s standing in his whistleblower lawsuit relies on his membership with the union, which in turn relies on his employment with the U.S.P.S. This removal is an attempt at a final blow before a decision comes in against the N.A.L.C., with the judge for that suit having had instructions from a superior court on how to decide for five years now.
It was in his summary of a pre-hearing conference call where Judge Turbitt was caught lying when he said “During the prehearing conference, the appellant continually questioned my authority to narrow the list of his 19 witnesses to only those I deemed appropriate. The appellant is mistaken in his belief that I lack the authority to do this.” and “At times, I did interrupt the [appellant] when he repeatedly claimed that I lacked the authority to deny any of his witnesses.” Noble did not once question the judges authority on anything, as is shown in the uncontested transcript of the call which was admitted into the record. This misrepresentation would look bad on appeal and showed obvious hostility towards Noble, which played out in the days leading up to, and at trial.
Turbitt displayed an unnatural interest in processing the case as quickly as possible, refusing to postpone the hearing despite both parties’ requests. In using his power of scheduling he blocked Noble’s access to discovery, having compelled the U.S.P.S. to provide their witnesses less than 48 hours before the trial, leaving Noble to try to schedule and take the depositions of four people within that time. Without the discovery he was seeking Noble was left blind, which lead to the surprise testimony of two witnesses, Paris Washington and Antonio Jones. Paris was the deciding official in the removal and testified that he only considered two factors before deciding to remove Noble, that he was AWOL and that he hadn’t contacted Paris about the charge. Other than directly contradicting his letter of decision stating that he considered all of the Douglas factors, as is necessary, contacting the deciding official is only a legal right and not an aggravating offense, meaning that all he considered was that Noble was allegedly AWOL before removing him. Antonio Jones testified that he told Noble during a pre-disciplinary interview on February 23rd that if he left that interview, Noble would be AWOL. Noble had a recording of the interview which showed Jones never said that, but Turbitt refused to let it into the record. Good lawyers do everything they can to keep from being surprised at trial, and discovery is their main tool in doing so. The surprise testimony of these two witnesses is clearly material to this case if not paramount and illustrates the damage done in limiting discovery.
Turbitt’s bad behavior didn’t end there. When it came time for Noble to talk Turbitt often interrupted, at one point denying his request to speak stating, “I doubt it’s going to be anything new.” Turbitt even went as far as to completely remove opening and closing arguments, without any explanation as to why. Closing arguments are a critical part of any hearing, and are the only chance to connect evidence and testimony to argument, or in other words, the only chance to make your case. This is particularly serious in front of the M.S.P.B. as they do not review any argument that was not a part of the original case when appealing to the full board.
The decision proved to be on par with the trial coming in on December 14th 2011, less than 40 days after the record closed. In his decision Turbitt ignores every piece of evidence in Noble’s favor, not mentioning a single exhibit of the over 60 submitted. This includes
$ A letter dated June 21st 2011 and a form 50, both from the Postal Service, informing Noble that he was on leave without pay or LWOP(an approved leave status) during the time in question.
$ An NLRB decision which shows that the concurring official in the removal, Sterling Colter, tried to set Noble up on a false charge of AWOL on July 29th 2010 (Colter being found to be a credible witness in this AWOL trial. )
$ Testimony showing that neither the deciding, concurring, or proposing official of the removal read Noble’s letter of constructive suspension.
$ The testimony of Alton Branson, branch president of Capitol branch 142 N.A.L.C., who said in his 33 years of experience at the union he has never seen someone removed for AWOL without first attempting lesser discipline.
The decision contained many obvious errors of fact and consisted entirely of Turbitt setting up and knocking down arguments Noble had no intention of making, but what else can you do when you won’t let people speak for themselves?
So how can a Judge with such a bad record and obvious disregard for the legal process act like this and keep his job? The answer is simple-work for the M.S.P.B. In documents obtained from the Freedom of Information Act and posted on the M.S.P.B.Watch blog it is shown that no judge at the M.S.P.B. has been disciplined in the last ten years. As the author of that blog notes that’s over 80,000 decisions. The thought that any group of people could process that many cases flawlessly does not stand to reason. Judges need to be held accountable for the things they do wrong, especially when their actions are as egregious as Turbitt’s.
Noble appealed the decision to the M.S.P.B.’s full board, but apparently they saw nothing wrong with Turbitt’s new brand of justice. The board upheld the initial decision stating that, “Despite his assertion of “deep seated antagonism” on the part of the administrative judge, our review of the record reveals none, and the appellant’s claim of bias, which does not include extrajudicial conduct, fails to overcome the presumption of honesty that accompanies administrative adjudicators.” They completely ignore the recorded phone call, the lie it exposed, and the dysfunctional trial that followed. The lack of argument was also ignored, not addressed in any meaningful way, with the term “closing argument” not mentioned once in the decision. With regard to Noble being constructively suspended, they found that the Postal Service’s actions, including sabotaging his attempts to get paid for annual and sick leave, holding his route far out of adjustment and ordering him to work overtime against his doctors recommendation, keeping him without health insurance for several months, failing to pay him for holidays, setting him up on false charges of AWOL, refusing to communicate with him, and blocking his access to the collectively-bargained-for grievance procedures were not “so harassing or so severe as to compel a reasonable person in his position to absent himself and remain absent.” In response to having had his access to discovery blocked and the numerous errors of fact, the board simply found that Noble had failed to show the harm done. Like Turbitt’s decision, the board’s review contained obvious errors of fact, with all of the testimony and references to the initial decision only being superficially related to the record before them. So it appears it’s the entire M.S.P.B., not just Turbitt, who has no regard for the legal process or the people they affect. They’ve decided they don’t need discipline, having adopted another Chaz’s definition of justice--
Justice n. a term of vicious mockery, as in “equal justice under the law”-The American Heretic’s Dictionary, Chaz Bufe
On July 17th 2013 Noble filed the final document’s in his appeal of the board’s review to the Federal Appeals Court, with it set to be submitted for decision on September 11th. He is ready to take the case to the supreme court if it gets that far, Noble having already won an appeal against the Postal Service in front of Chief Justice John Roberts for charges similar to those made in his constructive suspension claim. I’ve been following Noble and his problems with the U.S.P.S. and N.A.L.C. for a long time now. My real name is Zach Noble, I am David’s son. I have hid who I am up to this point with the hope that someone would listen, with history often being written by the victor, despite the facts. This all started when I was three, going back as far as I can remember. I can speak personally with regard to the Postal Service’s harassment as it has been a constant force in my family’s life for the past twenty years. It began with my father being reassigned to the most dangerous part of D.C. in attempts to intimidate. CNN actually walked with him on his route during that time to cover his whistleblower story, with the camera man saying it was worse than some war zones he had covered in response to the number of gun shots heard while walking the route. One night soon after the report aired our garage caught on fire while we were sleeping, later being found to be arson. That night is still clear as day to me. I can remember my father carrying me to the window and seeing the flames for the first time. I remember my mother running into the fire to save the only pictures she had of her parents. While I can’t connect the fire to the case in any way other than proximity in time it was nevertheless a meaningful coincidence for me. After filing his charges my father was fired from his position as Assistant to the President of the N.A.L.C. and we lost our home.
What I was able to gather as a child from what was happening in those times hurt me deeply, but it was only the beginning of all that I would see done to my father. I’ve seen the grievance procedure continually fail when it came time for him to use it, the few times he was actually able to access to it, with the N.A.L.C. and U.S.P.S. refusing to honor many of the settlements they’ve made. I’ve seen him repeatedly denied pay that he was rightfully due. I’ve even seen him forced to work overtime everyday after returning from being absent due to a triple bypass heart surgery. I actually rode in the ambulance from his postal route to the hospital when his heart started acting up. The Postal Service claimed to know nothing about his heart surgery at trial. I ask, what reasonable person wouldn’t absent themself from a job that forced you to work overtime everyday immediately after returning from heart surgery, with no hope of remedy after many years of failed attempts at using the grievance process? How much longer could you stand to be at a job that has been harassing you for almost a third of your life? We’ve lost a lot in these twenty years, both money and time, and after all that fighting to not even get the decency of a fair trial just breaks my heart. That any decision could be upheld after no closing arguments is upsetting enough, but to have no closing arguments and no discussion of the evidence presented is unacceptable. Everyone deserves a fair trial, but it seems nobody will get one in front of Turbitt or the M.S.P.B.
When Turbitt learned of the recording of his pre-hearing conference he described it as “at best, discourteous.” It is my opinion, especially after this experience, that no legal interaction with a judge should be left to personal recollection when a solid record can easily be made. The M.S.P.B. says themselves that the written word is everything, so let’s have what was actually said instead of a single person’s interpretation. People aren’t always reliable, as Judge Turbitt well shows, and there is no excuse for leaving room for mistakes when there could be none. An officially documented conference call might have been able to stop Turbitt from ruining this trial, but even then he would still be around to ruin others. After ten years without discipline I think it’s time we bring justice back to the M.S.P.B., starting with the removal of Daniel Madden Turbitt. I hope you will join me in showing that we hold our judges to a higher standard, and for those of you that took a minute to hear our story, I thank you. It’s more than the M.S.P.B. felt they could afford us.