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SJC Justice Upset with
Problems in Probate Court, But Tells Father to Complain to Chief
of Probate Court First
By
Ed Oliver
February 13, 2001
Associate
Justice Francis X. Spina of the SJC indicated last month he is
upset with problems that have been told to him by a father about
the Middlesex Probate Court, but he did not take supervision of
the case. He told McLarnon to first appeal through the normal
channels.
The
father had told the Justice that he has been unable to obtain
justice in the court in Cambridge due to corruption.
Assistant
Attorney General Maria Makredes, who represented the Probate Court,
told the judge that no record system is perfect, there are always
some irregularities.
The
Justice snorted, “Some irregularities!” He asked her, “How does
this situation get rectified?” The father had informed the judge
that several of the official tapes of his hearings had been mysteriously
edited. He indicated that court dockets and files were altered
by court insiders who are friends and associates of his ex-wife
and her husband.
Makredes
said she couldn’t say how the situation would be rectified, but
she said it’s quite a feat to keep up with the paperwork. The
Justice asked if anyone had complained to Chief Justice Sean M.
Dunphy, head of the Probate Courts, about the file storage system.
Nobody had.
The
father was unhappy with the decision because his lawyer, Gregory
Hession, had asked the SJC to investigate the matter and correct
the court record so his client can finally obtain justice.
McLarnon’s
case was featured in the December issue of Massachusetts News.
No
Denial of Wrongdoing
Atty. Hession told the judge he was unable to obtain his
client’s file from the clerk for many months. When he finally
did receive it, it was missing key documents and also contained
a report that had been stricken from the record and which is poisoning
the case. The docket had serious omissions and alterations and
several hearing tapes were edited. All of that, he said, has kept
him from being able to properly defend his client. He said some
appeals were impossible to file because either there was no record
to appeal from or it would have been from an inaccurate record.
He wants to get the record fixed first, then appeal.
The
judge asked Hession if the record could be reconstructed. Hession
said maybe, but it would take someone from outside the Probate
Court to make it happen, adding that the Attorney General’s office
has not acted even though they haven’t refuted his scientific
evidence of tape alterations.
It
is significant that the SJC did not deny that wrongdoing occurred
in Probate Court, according to McLarnon. His attorney plans to
go to Chief Justice Dunphy as the SJC suggested, but they will
return to the SJC if he does nothing. Dunphy is the only office
they did not take their case to after exhausting all other avenues.
The father said they are also working on a federal lawsuit.
Commenting
on the SJC’s stated reason for denying his petition for supervision
of his case, McLarnon told MassNews, “Referring the matter to
Judge Dunphy, an administrator, pretends there has just been some
administrative mess-up here. These tapes and docket were edited
with criminal intent. They hid my file away, as you witnessed,
and made Dr. Pagan’s report [an exculpatory document] disappear
from the impounded files in the Register’s office. They have illegally
destroyed master tapes of my hearings to cover up the editing
by someone of those tapes.”
Can’t
Appeal Without Paperwork
On the matter of another appeal, McLarnon said a hearing
cannot be appealed until it has been docketed and the paperwork
is in order. He said the manipulated docket has been one way his
opponents have kept him at bay. One hearing remained undocketed
for two years until Atty. Hession complained about it.
According
to McLarnon, Atty. Hession did appeal a June 30, 2000 hearing
because a restraining order was issued against McLarnon without
any affidavit or testimony from his ex-wife. He said the court
is refusing to act on the appeal to this day. “These are the games
they are playing,” said McLarnon. “I’m just going in circles.”
Judge
Beverly Boorstein presided at that June hearing. She is the judge
who kept McLarnon’s file locked in her chambers, as we reported
in December when MassNews went to investigate his claims at the
courthouse. The day MassNews was there, as McLarnon predicted
would happen, the clerk’s office told him they could not locate
his file. Once MassNews asked them where the file was, they went
reluctantly to Judge Boorstein’s office to retrieve it.
At
the June hearing when the restraining order was issued, Atty.
Hession subpoenaed the ex-wife Virginia Jokisch and her husband
David Douglas along with their former lawyer Nancy Borofski. Also
subpoenaed was Barbara Beardsley from Massachusetts General Hospital,
the Guardian who was appointed by the court and who took $3000
from McLarnon to do a family evaluation but never produced the
court- ordered report. (McLarnon is currently suing Mass General
Hospital for breach of contract.) Hession was not allowed by Boorstein
to put any of the subpoenaed witnesses on the stand, according
to McLarnon.
“This
is a corrupt catch-22,” said McLarnon. “You can’t appeal a hearing
until the record is corrected, but then, we ask the SJC to correct
the record, then they say you must use your appeals. When you
do appeal, they ignore the appeal. This can go round and round
forever.” The father also had problems early on when two of his
lawyers quit right before they could have appealed. One of those
lawyers, Sonya Pence, was sued successfully by McLarnon for malpractice
last year. McLarnon says many of his lawyers were insiders who
did not want to make waves in the courts.
Facing
Foreclosure
McLarnon is currently facing foreclosure on his house
and repossession of his car because of his inability to pay $16,000
in fees imposed on him last year by the SJC. This resulted from
his attempt to obtain justice in the Superior Court before Judge
Zobel by suing his ex-wife and her husband for fraudulently taking
out a restraining order on him and for malicious prosecution.
His
opponents successfully used an obscure statute called the anti-SLAPP
law to have the judge throw out his suit. The anti-SLAPP law is
generally used to prevent big corporations from using their legal
prowess to file meritless, harassing suits against those who exercise
their right to sue the big corporation. It was the first time
the new law was used in this manner. When McLarnon appealed, the
SJC took the matter away from the Appeals Court and decided that
the use of the anti-SLAPP law was proper. They assessed McLarnon
$16,000 to pay his opponent’s attorney fees for the SJC hearing.
McLarnon plans to open up the Superior Court case again in March
with new evidence.
He
charges that in 1994, his ex-wife Virginia Jokisch and her husband
David Douglas -- who has influence with the courts because he
is a well known social worker who does business with the state
and the courts --
obtained the first of a series of restraining orders against him
based on false allegations. As a result, McLarnon’s relationship
with his son was severed and he could no longer influence the
boy’s upbringing. The boy then lived virtually unsupervised in
the care of his mother and stepfather who eventually brought DSS
into the situation because they were unable to cope. Under the
supervision of DSS, the boy lived with an older woman and fathered
a child at the age of fifteen.
The
December
issue of Massachusetts News contains more details of Zed McLarnon’s
saga.
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