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Losing faith in the judicial branch: 3rd Federal judge recuses from Esrati FOIA case

Judge Michael H Watson recused himself from the case Esrati v DOJ on May 31 2022, without specifying a reason. He follows Judge Thomas Rose and Judge Michael Newman. The case has now been assigned to Judge Sarah Morrison and on June 9th, 2022, she granted an order allowing me Pro Se filing rights on PACER, the Feds Clerk of Courts system. The case is a FOIA appeal- “Freedom of Information Act” requesting tapes that the Feds played to the Grand Jury of Nan Whaley in the “culture of corruption” investigation which resulted in the indictments of four Black men on April 30, 2019: Former Dayton City Commissioner Joey D Williams, former City of Dayton employee Roshawn Winburn, former State Rep Clayton Luckie, and businessman Brian Higgins. (Full disclosure- Higgins is a friend and client, Williams has been a friend as well). Later that year, the Feds also indicted former Trotwood Mayor Joyce Cameron and her husband (both Black) and finally, demolition kingpin Steve Rauch. No other indictments have followed.

According to lawyers that I’ve spoken to, this many recusals is rare, especially on the Federal bench

The Due Process [1] clauses of the United States Constitution [2] require judges to recuse themselves from cases in two situations:

  1. Where the judge has a financial interest in the case’s outcome.
  2. Where there is otherwise a strong possibility that the judge’s decision will be biased.

In either case, it does not matter whether or not the judge is actually biased. What matters is that even if the judge is not biased, the high probability of bias still damages the integrity of the judicial system. Any party in a lawsuit may request that a judge recuse him or herself.

Source: Recuse | Wex | US Law | LII / Legal Information Institute [3]

The second clause opens up a veritable cornucopia of excuses, and since a reason for recusal isn’t required, it opens up a lot of speculation, although I believe I can explain the first 2 recusals.

Newman had the case for a long time before bowing out. Allowing the feds an insane amount of time to respond seemed to be tied to the same reason that Roshawn Winburn hasn’t reported to prison yet, despite having reached a plea agreement to do a year for his part in the FBI/DOJ “Culture of Corruption” investigation. Winburn was a public servant who accepted bags of cash from an FBI sting operation on camera. Speculation is that Winburn either is still testifying to Grand Juries, or is being held to be a witness for an upcoming trial that we may or may not know about.

Why Newman had to recuse himself, is because during that long delay, I did another FOIA request on information about Willis Blackshear Sr. who is deceased. Dead people don’t keep the rights to privacy, so the Fed’s must release that information- unless it’s a matter of national security, or part of an ongoing investigation. The Feds seem to have gotten confused and denied existence of records. Problem was, that just 3 weeks after I filed this case to make public the tapes of former Dayton Mayor Nan Whaley that were played to the grand jury, Judge Newman had unsealed the Blackshear wiretap warrant [4] that he signed off on. Since these records obviously exist, and the Feds refuse to acknowledge or supply them put Newman in between a rock and a hard place. Blackshear was the bagman delivering cash to city hall- and yet, the only guilty people in City Hall so far have been Winburn and former Dayton City Commissioner Joey D. Williams.

Of course, by this time, Nan Whaley had already dropped her re-election campaign for Mayor at the last minute [5], forcing the Dems to scramble and have Jeff Mims run for Mayor in her place.

I already identified that Williams had been a CI for a long time while in office, even after having being nailed by the Feds for felony theft in office. While I published the 3 pages of the Higgins discovery where Williams makes his first report as a text file, on March 1, 2020, the actual document, dated 10/17/2015  never saw the light of day [6]. On Sep 10, 2020 I was told to destroy any copies of Higgins discovery materials by Higgins after Higgins had included it in his filing in Judge Gerald Parker’s Common Pleas court- where he was suing the Confidential informant Mike Marshall for failure to complete the work on Higgins house. Before he was sentenced to 3 years in prison- he added the site CorruptGMen.com [7] to his other site: whataboutthechildrenrahm.com [8]. The Corrupt G Men site has published discovery, recordings of negotiations, client/attorney meeting and in the federal court room.

Higgins to destroy discovery
[9]

Now that Higgins (who was in a business partnership with Marshall, Williams, Winburn- to gain demolition contracts with the city – a fact the Feds edited out of Higgins trial) is in jail awaiting transfer to Federal Prison on a 3 year sentence for wire fraud and witness intimidation (the Feds claimed that despite the insurance company inspectors agreeing that $86K of work had been done to the house- that Higgins ripped them off) the public has a right to see the document- and judge for themselves if the Feds should have charged Williams while in office, Which would have forced an election to replace him- instead of allowing him to finish his term, run again- only to resign after winning and let his kid graduate High School before becoming a political pariah.

This, folks, is a stolen election, election tampering, a Manchurian Candidate- and flat out wrong. By not immediately charging Williams, trying him, and removing him from office, the Feds were guilty of Misprision of a Felony [10].

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States [11], conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, [12] shall be fined under this title or imprisoned not more than three years, or both.

How many judges they informed is a mystery, we’ve had 3 recuse themselves, but, isn’t the job of a judge to make sure they aren’t hiding criminals under their robes- endorsing other criminal acts- like letting Williams stand for office with an agreement to resign if elected? Why not have stopped Williams run for re-election? Much like Nan Whaley did for Mayor at the last minute? The question of if she is a legitimate gubernatorial candidate is overshadowed by the Feds actions with Williams- and their refusal to turn over tapes of Whaley that were played to the grand jury (this is a fact- the tapes exist).

Here’s the original 3 page report, plus one more page where Higgins tells “Caty Crosby” (they meant “Katie” Crosby- then the executive director of the City of Dayton Human Relations Council – Roshawn’s boss) that he has the help of a City Commissioner. It’s likely that the CHS is that Commissioner (Williams).

Joey D Williams as CHS in Higgins file
[13]

Since the US District Court has ignored ALL time limits on production of the Whaley tapes, maybe prodding the Feds into action may bring this travesty to light. Beside, if the Republicans on the State redistricting commission can ignore the instructions of the Ohio Supreme Court, we really need to re-examine what kind of justice system is in place? Are politicians now a privileged class? And if you need another example of judicial leniency for lawyers (another privileged class it seems), local divorce attorney Aaron Hartley posted on social media about putting a bullet in the brain of another local attorney [14]– and wasn’t taken into custody either. If I threatened to shoot a local judge on social media, I’m pretty sure the cops would be at my door in minutes.

I will list other cases that have shaken my trust in our judicial system (leaving out the latest overturning of Roe v Wade by the US Supreme Court last week with the Dobbs decision).

Stare decisis

Stare decisis is the doctrine [22] that courts will adhere to precedent [23] in making their decisions [24]. Stare decisis means “to stand by things decided” in Latin.

When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court’s decision.

Source: Stare decisis | Wex | US Law | LII / Legal Information Institute [25]

My FOIA case was pretty simple- citing a previously decided case- and spelled out quite clearly:

The basis of the appeal breaks down into several main legal arguments. The first is that Public Officials are not guaranteed absolute privacy when conducting public business in private which is a violation of the Ohio Sunshine Laws. The precedent is set by a decision by Ruth Bader Ginsburg when she was still on the District Court: Senate of Puerto Rico v. Department of Justice, 823 F.2d 574 (D.C. Cir. 1987)

A common summary of this case is:

“noting that the D.C. Circuit has “never embraced a reading of Rule 6(e) so literal as to draw ‘a veil of secrecy … over all matters occurring in the world that happen to be investigated by a grand jury.”

Typically, what happens in a Grand Jury, stays in a grand jury. However, there have been exceptions. One of the reasons Esrati belives his action has merit is a Supreme Court doctrine on cases like this- “Capable of repetition, yet evading review” which would set precedent for corrupt politicians to continue to hold office and run for as long as they are supplying the Feds information that the Feds may or may not act upon. This is debasing the ideals of a democracy in every way. There is also the ability to redact other informants, or guilty parties from the tapes- making the request more than reasonable, since Esrati is asking for city business or personal graft that the Mayor discussed in private illegally – in violation of the Sunshine Laws.

Source: Esrati files in Federal Court to expose Dayton Mayor Nan Whaley’s part in the “Culture of Corruption” investigation | Esrati [26]

Apparently this is too much for the first three Federal Judges. Let’s hope Judge Sarah Morrison understands Stare Decisis- and applies it in this case. There is no veil of secrecy or cones of silence to cover up the misdeeds of elected officials in office when it comes to corruption. The Feds have said there is no ongoing investigation- and Nan Whaley herself claims she’s vindicated because they haven’t charged her [27]. So what’s the problem with the public hearing the tapes?

I f [26]iled this FOIA case on Aug 10, 2021. The first FOIA request was May 28, 2021. We’re just shy of 13 months, and still nothing.

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Diana S.

David- if you’re going to represent the state, we want to hear about the issues facing the state – e.g. roe vs wade decision; crime; more about gun violence etc. Not sure folks care about what happened in Dayton.

Kirby

Diana S.–Considering that the FOI case involves the democratic candidate for Governor of Ohio, I’d have to say this certainly does have statewide significance!

Joe Blow

Actually you’re both wrong on Catherine Crosby’s nickname. It’s spelled “Katy.”