Another insightful(ish) comment that warrants a response since this same question, or a similar version of it, has been asked over and over:
Given what you’ve shared here about requirements for candor, I would think that once it came out that the planned parenthood Laura claimed to go to was closed on Sunday (and therefore her testimony could not be accurate) it would have been proper to file something (before it was ruled on) correcting the record and stating that you were unaware she was going to provide false testimony? Is that not precisely the situation that would call for candor to the court?
Sorry for adding so much emphasis…but each emphasized thing matters.
Couple important things to say about this…maybe three things….
First, when you say “once it came out“…think about what you are saying here. What exactly “came out” and when/where/how did that happen?
If you make a post on Twitter that says: “Gregg Woodnick likes to cross-dress wearing ladies lingerie”, does that mean this “fact” has suddenly “come out” about Gregg’s secret lifestyle?
Certainly not. At least I hope not.
I think what you’re talking about is this — in the middle of the trial (and shortly after) posts like this appeared on Xitter. Note this is NOT posted from The New York Times, or the official Planned Parenthood account:
OKAY boomer — a random, anonymous person said something on social media.
Interesting? Yes!
Conclusive proof of anything? Fuck no.
Let’s ignore the fact that posts on Twitter are not evidence. Let’s also not talk about how my friend Mark says the earth is flat because he read that on Twitter: https://x.com/Chi_lady_89/status/2050109183949721612?s=20
Problem #1 is — social media isn’t proof. Social media is not evidence (not by itself). Posts may offer clues that lead to evidence, but not always. Assuming it isn’t a hoax, an anonymous post on social media is not admissible evidence. That’s issue #1.
Issue #2 — if you have been following this case that closely, you know where I was immediately after the trial. Was I sitting at my desk reading EVERY post on social media looking for clues like this? No.
I was on a plane heading to Europe for a 3 week vacation to celebrate my mom’s 80th birthday. I left immediately after the trial, went home to finish packing, then went to the airport and flew 10 hours from PHX to LHR. I was not watching or seeing any of this stuff. I was on vacation, relaxing, and not thinking about ANY of this.
British Airways – Dinner For Two @ 40,000 feet
Also, SIDE NOTE: I don’t know if you remember this, but around this same time (literally the same week), Donald Trump was going through his criminal fraud case in New York. During that trial, someone posted on Facebook saying their cousin was on the jury the jury decided to convict Trump BEFORE the case was over. This was big news.
That Facebook post was seen by the trial judge, and it raised the possibility of a mistrial. Jurors aren’t allowed to decide a case before the evidence is finished, nor are they allowed to rule based on social media…kind of like a certain judge.
At it turned out — the Trump post was a hoax. It was just more online garbage from a troll. Again, this was literally the same week as Laura’s trial, so it was very top-of-mind for me.
https://www.politico.com/news/2024/06/07/trump-hush-money-trial-juror-facebook-00162369
So, keep in mind — after the trial ended, after a long flight to Europe, I was sitting on a cruise ship in the Mediterranean with my family. During that time:
A.) I had no idea people were posting comments about PP being closed on Sunday;
B.) I had no way of knowing whether the business hours of PP were being accurately reported; and
C.) I had no idea if this mattered because I didn’t know how Judge Mata was going to rule on anything.
Because A + B + C, I had no reason to file anything BEFORE Mata ruled. I wasn’t even aware of the issue at that point!
And, to be honest (as I have explained before) — I didn’t recall exactly whether the issue of PP’s business hours was discussed at trial or not. Trials are a blur, and you don’t remember every single detail with perfect recall. That is why we have court reporters taking down every word.
Here’s what happened next — we got Mata’s ruling around June 18 or 19th I think. Obviously that ruling raised the issue of PP’s business hours for the first time (since that was never mentioned at trial).
Even if I was still working (which I wasn’t) I had no way of checking or verifying any of this. I couldn’t remember what Dr. Deans said, and I had no time to verify if the trolls posting about PP’s business hours were correct. It was possible PP in Los Angeles had different business hours in 2023 than it does today. How could I know? Maybe these people were posting accurate info, maybe not.
Checking into that non-emergency issue from 5,000 miles and 9 time zones away, during a big family vacation? No way. And certainly not ethically required. Lawyers are allowed to sign off and take vacations.
Once I got back from vacation, I started looking into what happened. One thing I quickly discovered is that Mata lied in her ruling when she said PP’s business hours were testified to by Dr. Deans. That was a complete lie.
But I didn’t KNOW this, and could not confirm it, until we ordered the transcript. That took several days and cost a LOT of money. Once I had the transcript, I knew we had a BIGGER issue – Mata’s reliance on evidence not admitted in court. Researching that misconduct and how to address it took days and days. I only had a short window of time to file something asking Mata’s boss to remove her for cause. That was my focus.
Problem #3 — until Mata’s boss ruled on that, there was no way for me to know whether anything needed to be corrected or not.
Thus, your comment – “it would have been proper to file something (before it was ruled on) correcting the record” looks fair, but it’s premature.
What if Mata’s boss had agreed with my argument and decided Mata should be removed from the case, her decision tossed, and a new trial ordered before a different judge? At that point, the entire case would have been a do-over. That would be the time to correct errors, not before.
Problem #4: my primary position was always that Laura had the right to drop the case. If a new judge had agreed, the case would have ended. Nothing else would have mattered. The business hours of Planned Parenthood would not have mattered. The sonogram would not have mattered….at least not in the family court side of things.
That is, unfortunately, not what happened. Instead, Mata’s boss (Judge Fisk) denied my Notice of Change of Judge for Cause. In that ruling, Judge Fisk said something absolutely critical to the issue of candor under ER 3.3:
Petitioner has failed to show by a preponderance of the evidence that Judge Mata’s finding that “Planned Parenthood is not open on Sundays” reflects bias or prejudice against Petitioner. Moreover—although not dispositive of the issue—the Court further finds that this singular factual finding is of little to no importance given the rest of the findings in the July 17 Ruling.
August 13, 2024 Minute Entry Order at 5.
See that line — the Presiding Family Court Judge said the issue of Planned Parenthood’s business hours “is of little to NO IMPORTANCE given the rest of the findings.” Fisk said the issue of PP’s business hours was basically meaningless, because there was other evidence that made the PP thing irrelevant.
Why is that SO important? Because of something called EO 20-0007: https://www.azcourts.gov/Portals/0/26/AEA%20Committee/Issued%20Opinions/EO-20-0007%20Opinion.pdf?ver=2021-05-19-104606-877
This is an opinion issued by the Arizona Supreme Court Ethics Advisory Committee (“EAC”). Like I have said many times, this shit is COMPLICATED, and even people who have been lawyers for decades sometimes have difficulty understanding exactly what is or is not OK.
To help provide guidance, the Supreme Court EAC issues written opinions to help lawyers understand and apply the rules. These opinions are not only legally binding, the rule specifically says: “Opinion as Defense. Reliance on a final Committee opinion may be raised as a defense in any discipline proceeding.” Ariz. Sup. Ct. R. 42.1(l).
EO 20-0007 addresses what a lawyer should do if he finds out his client lied (without the lawyer knowing about it). The opinion goes through a ton of different issues, but then it has this very helpful part talking about what sort of “remedial measures” a lawyer should take:
Given Attorney’s actual knowledge of having unwittingly offered false material evidence resulting from Client’s deception, Attorney now has an ethical duty under ER 3.3(a)(3) to take “reasonable remedial measures.” The Committee stresses, however, that disclosures made pursuant to ER 3.3 should be narrowly tailored and no broader than necessary to undo the effect of the tainted evidence.
Reasonable lawyers can debate what counts as “narrowly tailored”. JFC will, of course, claim the ONLY way to “undo the effect” of something is to do what Cory Keith did.
But the Supreme Court EAC would disagree. Here’s why, taken from page 7 of EO 20-0007 (and I’m sorry this is so long, but please read the whole thing):
If neither withdrawal of the evidence nor termination of the representation would effectively remediate the fraud, the attorney should consider disclosing the client’s misconduct to the tribunal. This drastic step should be taken only after all other reasonable measures have first been tried and failed or carefully considered and rejected. The Committee believes that in most instances an attorney’s motion to withdraw evidence should be sufficient to remediate the fraud because such a motion is reasonably calculated to sufficiently warn the tribunal of the situation concerning the unreliability of the false evidence and “the tribunal [would] no longer be powerless to defend itself against” it. Disclosure of the client’s misconduct (as opposed to putting the tribunal on notice that certain evidence should not be considered as part of the record) would seem to be rarely, if at all, necessary to undo “the effect of the false evidence,” the goal behind requiring remedial measures.
Got that? The #1 goal behind ER 3.3 is to make sure the court is not misled by false evidence…and if you later find out the court WAS misled, then you have to look at various ways of fixing the issue. The EAC makes it clear — you should take the LEAST drastic measures first. That can include just telling the judge: “Hey, remember when my client said: [blah]. You should just ignore that, and don’t ask me why.” That is literally the example given by the EAC as the first and most appropriate step to take.
The LAST and MOST RARE step would be to tell the court your client lied. The EAC specifically says that drastic step “would seem to be rarely, if at all, necessary to undo the effect of the false evidence… .”
That is not MY fucked up standard. That is not Dingus being Dingus. That is the standard set by the Supreme Court’s ethics committee itself. And it is NOT the standard Cory Keith followed. He used the death penalty as his first option, and that was, itself, a violation of the ethical rules (see ER 1.6).
Now that you REALLY understand the rules — answer this question for me — given that: A.) Judge Mata clearly DID NOT BELIEVE Laura went to Planned Parenthood, B.) given that Judge Mata’s boss made a specific written finding that the issue of whether PP was open or closed was “of little to no importance“, and C.) given that Judge Mata ruled in favor of Clayton on every single thing he asked for (other than vacating the OOP Laura obtained against him, which had nothing to do with PP being open or closed), what do you think was actually necessary to “undo the effect” of Laura’s testimony about going to PP in LA?
Keep in mind — the goddamn ethics committee said they stressed that any remedial disclosure must be no broader than necessary to undo the effect of the tainted evidence. But the tainted evidence had no effect. Mata didn’t buy it. Clayton won. So there was nothing to “undo”.
I know that may be hard for you to accept, but that conclusion comes straight from EO 20-0007, and it was supported by a LONG discussion I had with ethics counsel at the State Bar which guided me to make the decisions that I did. I maintain those decisions were correct, and if I had it to do over again, I would do exactly the same thing. This also shows Cory Keith did exactly the wrong thing….much to JFC’s delight.
At the end of the day, I know non-lawyers and JFC folks believe whatever “feels right” to them. That’s fine.
If you think watching a TV show about doctors qualifies you to perform brain surgery, we have very different views of our round world.