I was not with Roy and Harvey at the court sessions. Finally, the transcripts arrived.
What I read was shocking—just as Harvey described.
The judge was confessing and admitting to the lawyers that she did not know judicial procedure and how to decide the law. Often, she spoke in American slang. A portion of the court transcripts shows verbatim, word for word, as follows:
“THE COURT: (Judge Marks)I have to confess. I’m sort of shooting from the hip in trying to
respond to your question about when and how do you want the Court to decide on the law, I
guess. But I would encourage you to file an early motion in limine.”
It was extremely troublesome. The judge was already suggesting the filing of a Motion in Limine where the trial evidences would be sorted out. And she had not figured out the issue or would know when and how to decide the law—as she told the lawyers. Roy and Harvey were likewise very concerned at such basic role of a judge that wasn’t done.
***
“I mean no disrespect,” I said in desperation. “The judge may be giving us a message that someone should take over her role. She seems uncomfortable in this lawsuit. I’m terrified. It’s my personal case involving my profession.”
“Erlinda, we’ll file the motion that she wanted, and hope for the better.”
My lawyers and the opponents filed their Motions in Limine as the judge suggested. The motions were heard. My situation did not become better as we hoped. It became far worse.
Harvey described the court scene. The judge was attacking me and my legal practice in front of attorneys. And her personal attack was completely out of their topic and the issue.
Verbatim, word for word, the court transcripts show:
“THE COURT (Judge Marks):
I think one of the things would probably come out, and I’m guessing, but that she ran the office in, sort of parceled things out to people, so that the guess is so they could not steal her coffer.”
***
“Roy, please ask the judge to step aside,” I pleaded. “The opponents know how she looks down at me and my legal practice and this is a malpractice case. They’re taking advantage of that. You’re so right, it could be much worse if she sees me in court with you. I’m so uneasy with her performance.”
“Erlinda. Give her a chance…she will come around. Too early for worries…and don’t make the situation worse. Judges learn on the bench. Nobody is perfect.”
***
Again, I contacted the paralegal of Roy. “If you have urgent need for me, please call. I will make myself available through my busy schedule.”
“Hold on, Ms. Dominguez. Roy wants to say something.”
“Come immediately, Erlinda. We have to talk,” he said. He sounded so different from when he spoke of his close and affectionate affiliation with Justices Duffy and Nakayama of the Hawaii Supreme Court.
I dropped all that I was doing and travelled to my lawyers’ office. Roy and Harvey were surrounded with files, records, charts pertaining to my case. It was almost the eve of trial.
“Something happened?” I asked.
“We are dead in the water…we’re dead in the water,” Roy repeatedly mumbled. “We just came from the court of Judge Marks. Trial is upon us.”
“What are you talking about?” I asked with alarm.
“Judge Marks insists that the jurors shall interpret the international Hague treaty,” said Harvey. “Then they will decide if you violated their interpretation on how to serve civil summons to a foreign citizen in Japan.”
“That’s unconstitutional. Judges interpret laws. Treaty is a law!” I exclaimed. “Lay people have no way of knowing how to interpret and construe the law.”
“The judge fails to realize her role to interpret the law,” they said. “We submitted written briefs and orally argued. She disagrees but she’s the judge and we’re just lawyers.”
***
“Listen, Erlinda. We have to tell you all that happened. The judge said that affidavits and papers from the opponents can come in as they are,” added Harvey.
“You’re really jesting!” I exclaimed. “That does not happen in any trial. You’re both telling me bad jokes.”
“No time for jokes. We have little time left before trial begins,” they said, looking so serious and grim.
“As Roy told you, the judge’s performance might later turn out alright,” said Harvey. “We should not feel hopeless and defeated.”
“How much later? When it’s too late?”
***
Soon, I was back in my lawyers’ office. “Why do you think this is happening to me, Roy?” I asked.
“To be honest, the judge asked us to persuade you to settle. We brought this up before in our hurried discussion. She said you are hated by the jury.”
“I’m hated by the jury? Judge Victoria Marks really said that?”
“That’s what she said!” And Roy observed how I reacted.
“How could she say that, Roy? She’s new. I just met her in this case…that’s hardly enough to judge me.”
“Well, she was told that the jury gave you a low figure in your recent trial before Judge Sabrina McKenna. Jurors hate you.”
“That’s on appeal. How can I be prejudged? We don’t even know who the jurors will be in my case. They come from the general public. Does Judge Marks believe that the whole public hates me? That’s unfair and unjust.”
“We’re just telling you what she said, Erlinda.”
I didn’t have to brag to Roy and Harvey about what would come—I prevailed in my appeal in my client’s case before Judge McKenna.
***
Williams testified, repeating what the opposing counsel told Mr. Davis during the arbitration hearing. No changes, nothing new—the opponents’ guesses of the Hague interpretation that annoyed the arbitrator.
I kept on staring at the judge and sending her a silent message. “Why don’t you do something now and interpret the Hague law? Even the jurors are going through hell Aren’t you tired of the witness guessing the laws in Japan and in the United States? What a crying shame to American justice!”
Roy’s cross-examination was long. As though written on the jurors’ faces were, “Stop, stop…this is not what we are here for…those technicalities are making us dizzy…we want to go home!”
But Roy suddenly opened a heavy book of American jurisprudence and raised it high for all to see. It somehow excited any juror who was about to sleep. As if he was enjoying his role as the questioner in a stage show. All, at my expense.
Verbatim, word for word as it appears in a small portion of the court transcripts, is as follows:
“MR. CHANG:
Q. But my question relates to Article 15, all right? And my question was: If the Hague Convention does not require a returned receipt and Hawaii law does require a returned receipt that is signed, which of the two laws takes precedence?
(MR. WILLIAMS):
A. For the purpose of exercising jurisdiction and the enforceability of an action, you would have to look to the Hague.
Q. Because the Hague supersedes any state procedural law?
A. Not in total.”
My mind was screaming, “What lay person would understand that? You’re all wasting taxpayers’ time. You’re toying with my constitutional rights. You’re just performing drama before a large audience.”
“Look at the jurors. Some are slightly shaking their heads,” I whispered to Harvey.
He just said, “Shhh, shhh.”
***
The judge went along with the request of the opposing counsel. She ordered Roy to read the technical citation from the book of American Jurisprudence. This was supposed to help the jury interpret the Hague treaty and the attorneys to better understand each other. Shocking!
A portion of the court transcripts shows verbatim, word for word, how Roy complied with the court order:
“THE COURT (Judge Marks): Please…
MR. CHANG: AmJur Second, Section 379 under the Process section of the AmJur.
***
In a matter of minutes, Jury Communication No. 1 was out. The jurors wanted to see the Treaty of the 1970 Hague Convention.
The judge asked the lawyers how they wished to respond. If there was disagreement, she would rule her own way—one of her many powers subject only to possible appeal.
Pages of the Hague Treaty had been sitting in the jury room. The jurors were simply directed to that exhibit. They were commanded to interpret an international treaty. Again, it provoked a helpless feeling.
The proper question on a lawyer’s Judgment Call immunity—the nationwide rule that absolves lawyers from liability for their reasonable interpretation of the law that was not interpreted by the courts—was missing. Without that rule, lawyers would fear to practice their profession.
Roy and Harvey, my lawyers, missed my fundamental defenses in the volumes of jury instructions that were filed. Our long discussions and their promises were meaningless. My late and long visits to their office were trashed. They submitted what they chose.
I was despondent. What did I do to myself retaining the services of Roy and Harvey? Too late…too late…
***
Any more communications from the jury would be conveyed to the lawyers by the clerk. I would hear from Roy and Harvey or simply drop by their office a short distance away.
Then, Communication No. 2 was out. The jury said, “We need clarification of question 8-A.” They were referring to the question 8-A in the jury verdict form which would require them to interpret the Hague treaty.
My prediction was happening! The verdict questions made no sense to them. They couldn’t say a word in the jury box even when Roy and Williams, my opponents’ legal expert, argued from the American Jurisprudence book. This was the jury’s time to speak.
That verdict question 8-A that the jury wanted clarified asked if I was negligent by choosing service by mail and/or service by publication when I represented the plaintiffs in their federal lawsuit against the company in Japan. That was asking them how to interpret the Hague law. A function of the judge that she had completely refused to do.
***
“The court needs our response to the jury’s communication right now,” exclaimed Harvey. “Let’s hurry up! Let’s hurry up!”
“Just how do you suggest we should respond, Erlinda?” Roy quickly asked.
“I know that the judge wouldn’t clarify the question. So, just have her instruct the jury to tell the truth. If they cannot answer, they should say so,” I said.
“It would cause a mistrial.”
“I don’t care!” I exclaimed. “Otherwise, they would be guessing, just as the judge admitted to you—that she was guessing the law and judicial procedure!”
The clerk had the phone line open. The judge couldn’t wait much longer and she proposed the response to be worded this way: “Rely on your collective memory of the evidence.”
Before I could say a word of dissent, Roy immediately agreed with the judge. And the call was over.
I felt I was watching a weird, confusing horror movie of legal life and there was no way out.
“The jury was asking for clarification. It has nothing to do with collective memory of evidence,” I said in desperation. “This is insane! This is really insane!”
“We are not the judge. We don’t make the rulings,” justified Harvey.
“It’s easy for you to blame her, but you’re both compounding the problem,” I mumbled softly, fearing that our conversation would turn unprofessional.
Then I thought, “Just how can justice be accomplished with rulings and orders that are so plainly out of topic and non-sensible?”
We were silent. I was already thinking of appeal. I will prevail, and never have to see the faces of my lawyers, the opponents, the judge again.
***
We were literally in horror.
The docket list was bursting with garnishee orders, subpoenas, summons against me. They were released by Judge Marks onto schools, travel agencies, hotels, banks, credit unions, the Honolulu Police Department, various companies all over Hawaii, even the military bases. It must have been the wildest civil execution in the entire United States against a private person.
“No amount of hate fits this…it’s criminal, it’s criminal,” mumbled Harvey looking so pale, obviously not knowing what to do. “The court has gone wild!”
“That’s pure harassment,” I exclaimed. “I don’t have money in those entities and the judge should know. She saw my sworn statement…Help me get out of this hell!”
“Erlinda, if the judge signs the orders, there’s no harassment,” said Roy defensively. “Your opponents asked for those.”
“How can I pay my creditors? My office space? My litigation expenses? Even basic necessities? I will not accept handouts from you and your staff,” I said.
They looked genuinely worried. Our conference led to no remedy. I felt that I was fighting the whole judicial and legal system, even Roy and Harvey for whom I toiled so much to pay their fees.
We were quiet. I recalled how Sharon Himeno and Kenneth Okamoto of the Pohl firm admired the long list of my clients not only in hotels but in the U.S. military. One officer I serviced so well spread the word to his comrades. Now, the judge made orders that would certainly humiliate me in those offices. She knew what would hurt me the most.
I nodded to the court reporter and to the clerk. Then I sat myself on the same chair I used throughout the trial, at the defendants-counsel’s section.
It felt woefully lonely. The two attorneys I hired to protect my interest—Roy Chang and Harvey Demetrakopoulos—were not seated beside me. Instead, they were outside the room as the ready witnesses for my opponents and the judge, and waiting to be called.
I was alone, for myself. That feeling kept coming back—a chicken surrounded by foxes. We waited for the judge to come out from her chambers and hear my motion, the only schedule on the court calendar. I wondered how the hearing would begin, how it would be handled, how it would end.
Then, Judge Marks entered the courtroom. She was stone-faced. The calendar was called. I greeted her and entered my appearance as the defendant and my own attorney, pro se.
The hearing was for her to step aside because of her severe undisclosed marital conflict. She was married to a silent partner of the Pohl law firm that I had sued. I requested that another judge would preside then decide the motion. My request was quickly denied.
I objected to my attorneys testifying and invoked my attorney-client privilege. I was overruled. Judge Marks ordered the testimonies to proceed. I had to prove my motion and I was entitled to choose the sequence of my witnesses. The opposing counsel O’Brien, was my first witness.
The judge looked at me with disdain. She ordered that my attorneys would testify first, as my opponent wanted. She reversed the proper judicial procedure as easily as she reversed the burden of proof during my trial.
The transcript of the recusal hearing shows verbatim, word for word, as follows:
***
Harvey proceeded to the witness stand. His oath for truth was administered. He continuously smiled to cover his fear of testifying. He would glance at the judge then back at the opposing counsel, as if to sense their approval of his performance. He followed what the opposing counsel said in his letter. But he testified that there were two pre-trial disclosures by Judge Marks of her marital relation with an attorney in the Pohl firm.
Harvey accommodated both the opposing counsel and the judge. Thus, the disclosures had to be two, a math computation without the need to think. That was his safety net.
I was tempted to yell, “You are a liar, Harvey. You said that the judge never disclosed that she’s the wife of an attorney in Pohl’s office before the trial. Now, she made two such disclosures?”
Harvey had completely transformed himself into a hostile witness in favor of my opponents. It was a strange scenario that I had to overcome—an ugly and immoral situation where a lawyer was testifying against his present client without fair warning.
I questioned him on dates and people present when any of the two disclosures happened. He couldn’t say. I questioned him on all responses he made to the alleged disclosures of the judge. He mentioned two words of American slang—“No problem!”—That was all.
The judge looked at me with a cold face. I imagined her saying, “You are bound by your lawyers’ ‘No problem.’ You should know what those two words mean. They mean, you agreed. Can’t you understand American English? You should. You are practicing law in America!”
I questioned Harvey if he had any note of the judge’s two disclosures—a line or two, a word or more. There was absolutely none. The court minute texts and transcripts were with me. Harvey couldn’t point to any page where the judge disclosed her spousal conflict before the trial.
I came to an immoral realization. I was surrounded by attorneys who took the vow of integrity and honesty but did not fear perjury. They were above the law.
On the witness stand, Harvey was increasingly agitated. It was midway into his testimony when he asked Judge Marks for a recess. He claimed that he had to speak to his attorney who happened to be Roy Chang whom he described as his partner.
Roy—his attorney? I thought Roy was my attorney! These two lawyers were playing deadly games. Or, they were showing their repugnance to ethics and procedure without the least effort of sophistication.
The hearing transcript shows verbatim, word for word:
“THE WITNESS (Harvey Demetrakopoulos):
Any possibility that I can have a short moment? Because this is an issue I need to discuss with my partner acting as my attorney.
THE COURT: Sure. We’ll take a break.
MS. DOMINGUEZ: Excuse me. Just a moment, your Honor. These two people are witnesses.
THE COURT: Excuse me. We’re taking a break.
MS. DOMINGUEZ: I’m just objecting, Your Honor, that he will contact the other witness in this case.
THE COURT: I will allow him to do that. There are sensitive issues obviously about attorney-client…”
The judge claimed that we were going for over an hour then she quickly stood up. She wouldn’t hear further objection from me and was making up her own judicial procedure as we went along.
She disregarded her order of exclusion of witnesses. She claimed that Harvey had the right to speak to Roy who he retained as his attorney right there on the witness stand.
I thought, “What a mockery of justice! I am with people who are making their own laws and rules.”
***
I quickly ended the testimony of Harvey. He had no chance to change his answers. He left the courtroom without looking at anyone. He was visibly terrified. I was sending him my thoughts—that’s what you get when you lie, lie, lie!
My opponent, O’Brien, did not present Roy Chang. And he decided not to call on me to testify. Or, I would expose all the lies occurring in a Hawaii State court.
I had no desire to present Roy either, or he could correct and even enhance Harvey’s testimony. Besides, the judge may grant all the recesses he would need to polish his answers. So, what was the point?
It was my turn to present my only witness. I called upon the opponent, O’Brien. Again, he was extremely reluctant. But he was in the room. There was no need for a subpoena. That was basic.
The judge hesitated. But O’Brien said no more. I knew what he was thinking—“Don’t worry, Judge. I’ve heard Harvey’s testimony. Thanks for changing the sequence of presenting witnesses. I just love your procedure…really love it!”
O’Brien walked over to the witness stand.
His testimony was a mirror image of Harvey’s testimony: Two disclosures before trial, no recollection of dates and people in attendance, and all agreed for the judge to preside in my case, only with those two words, “No Problem.”
I thought to myself, “My office parrot could do better than that! How humiliating that a parrot could perform better than how my lawyers defended and protected me.”
No problem, that’s it? What happened to the strict rules of procedure for conflicts of interest? “Look at the problem I am going through now, Judge”—but I wouldn’t scream that thought and compound the No Problem into a gargantuan problem.
Portion of the hearing transcript shows my cross-examination of the opponent verbatim, word for word:
“Q. (BY MS. DOMINGUEZ) Mr. O’Brien, you have represented the plaintiffs in this case, the Barnedos, true?
A. Yes.
Q. Okay. And, of course, you are still their attorney?
A Yes.
Q. And you were here all the while listening to the testimony of the previous witness, Harvey Demetrakopoulos, and you heard all he said, true?
A. Yes.”
My questions were answered with one word, yes or no. Then, it was time to get to the main issue of any pre-trial disclosure of the judge’s marital conflict of interest and mandatory disqualification.
The witness showed anger and his face turned red. His word, yes or no, disappeared. I had to finish my cross-examination before he completely lost his composure.
Appearing on the transcript, verbatim, word for word, my questions and the answers of the witness, Mr. O’Brien, were as follows:
“Q. (BY MS. DOMINGUEZ) You know that that’s important, don’t you?
A. I consider it exceedingly important.
Q. Okay. Since you consider that disclosure and recusal, all of those exceedingly important, as an attorney, did you remind the Honorable Judge Marks, Judge, let’s put this in writing, it’s very important, it might decide the outcome of the case? Did you say anything like that?
A. There was no reason to.
Q. You did not in other words.
A. No. I did not.
Q. Even if you thought it was very important.
A. I did not think it was necessary.
Q. That’s your best answer?
A. That’s my only answer.
Q. Good.”
I gave the witness a quick time to catch his breath, then I proceeded with my cross-examination. He had regained his composure and relaxed his guard. A portion of the transcript reads verbatim, word for word:
Q. “Okay. I’m not going to breach your privilege with your clients ‘cause I know better than do that, Mr. O’Brien, but did you ever, ever, ever, put down in your notes, as an attorney, that Judge Marks disclosed her spousal relationship?
A. No, ma’am. I knew it anyway. I knew it—I’ve known Bob Marks for a long time. I knew where he worked.”
Then, the closing arguments began. O’Brien argued his exhibits—copies of my lawsuit against Pohl where the husband of the judge was a partner.
I thought, “What’s he doing?” He was actually proving my motion—the intense conflict of interest of the judge of being married to my legal enemy. His arguments could provoke repulsion, even more hate against me. The transcripts would be read by the Supreme Court who shall decide my appeal.
The intended message of my opponent to the judge was so clear—I was going against high political figures including her husband who was a recent State Attorney General. I was so barbaric, uncivilized, or unprofessionally misbehaving in an American court.
My argument was simple. There was no note of any attorney, court minute text, transcript, record of any of the two pre-trial disclosures. What did not exist in a Court of Record never happened.
In short, the judge never made a pre-trial disclosure that she was the wife of my legal enemy. Those two casual words of NO PROBLEM—without an iota of written proof —were never moral and just. Nor was it a valid procedure that the judge would preside in the case. Even in countries who look up to America for its standard of justice.
I stared at the judge and wondered how she, of all judges, suddenly replaced Judge Del Rosario, who was originally assigned to the case. There was no reason provided by the court. It just happened. And I was sending her a silent message—“How can you allow atrocities, as the testimonies of the lawyers before you, to happen? Please remember the vow you took to follow the Rule of Law and impart justice.”
Judge Marks quickly denied my recusal motion. Opposing counsel expressed his gratitude. “Thank you, Your Honor.” Then he threatened to submit his request for his fees and costs because of my frivolous motion.
I gathered my files, walked out of the courtroom, and remembered what Harvey said on the witness stand—they were withdrawing as my attorneys.
In a couple of days, I couldn’t believe what I saw. A court document was by my fax machine. My case was transferred from Judge Marks to Judge Gary Chang, no known relation to Roy Chang.
Something must have happened. I quickly ordered the transcript of the recusal hearing. At the very end, Judge Marks announced that she was voluntarily stepping aside.
Was that really said? Was it just inserted? I didn’t hear her say that. Perhaps, even opposing counsel did not—or he wouldn’t thank the judge when she denied my motion for her recusal.
The tape of the hearing was not available. “Ms. Dominguez, it’s normally discarded after the transcript is ordered and completed unless you officially preserve it earlier,” said the court reporters’ supervisor. “Your transcript was already done.”
There was no need to pursue my concern. It was enough that a new judge was taking over. An unexpected relief from the pits of hell.
Judge Marks could have simply walked over to the administrative judge—from one chambers to the other. They socialized, discussed my case, socialized some more, then the order for a new judge was filed. Just like that!
The new judge, Judge Gary Chang, was a partner in a personal injury firm before his appointment. I was always for the plaintiffs and he was for the defense. Our relationship was adversarial, often very bitter. But we maintained a restrained professional courtesy.
Still, I felt uneasy. Before his appointment, I won huge fees when a federal judge from California decided that the defense of Judge Gary Chang’s law firm was borderline bad faith. Then the judge said, “In all of my years on the bench, this must be the most interesting case I tried.” He was referring to a fierce battle of psychiatrists as witnesses to prove the proximate causation of my client’s death.
Judge Chang also reported me to the Disciplinary Counsel before his appointment. He claimed that I breached ethics by representing a husband and wife in a car accident. But I had no conflict of interest and his report died a natural death when he did not pursue. My worry was his pre-judgment.
Judge Chang was now in the judiciary. We were no longer antagonists. My hope was for his fair discretion and to follow the law as we moved forward. I would just pursue my legal rights in his court. It would be hell many times over if my case was thrown back to Judge Marks, the wife of the recent Attorney General after Warren Price—a silent partner of the law firm I sued.