Case 1:99-cv-03329-BMC-LB Document 295 Filed 06/03/13 Page 1 of 8 PageID #: 1855

Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

Honorable Brian M. Cogan U.S. District Court Judge U.S. District Courthouse 225 Cadman Plaza East Brooklyn, New York 11201 Via Electronic Filing (CM/ECF) Re: Preservation of the Southerland Childrens Rights and Claims Dear Judge Cogan:

June 3, 2013

As Your Honor knows, I entered my appearance in this case on April 30, 2013, just over a month ago. I write today, again dutifully, to bring the Courts attention to a development in the case regarding Mr. ONeill, the appointed-attorney for the Southerland children. As explained in greater detail below, Mr. ONeill has repeatedly taken positions adverse to the Southerland children interests due to a clear conflict of interest. The children are aware that he is not pursuing all of their claims faithfully and diligently. I submit this letter to make the Court aware of the same, so that the Court can take the necessary steps to preserve the childrens rights and claims.1 I. The pretrial conferences have helped the parties narrow issues and prepare for trial. Although I planned on bringing matters regarding Mr. ONeill to Your Honors attention at the pretrial conference on Thursday, I was not able to because the conference began and ended before I had arrived and signed in. To clarify, on Tuesday two of the Southerland children, Sonny, Jr. and Nathaniel, told me that they planned to attend the conference. As Mr. ONeill stated at the conference, they advised him of their intention to attend also. See Transcript of May 30, 2013 (Mr. ONeill, stating: I was actually told that Sonny, Jr. would be here today. Hes not, but frankly I didnt think that a motion to relieve at this late date without substitute counsel would be granted by the Court.). Unfortunately, Mr. ONeill did not give them the correct time and location of the proceeding, so they contacted me and asked for the correct time. I tried to wait for Sonny, Jr. and Nathaniel to arrive before going to the courtroom and signing in because I wanted them to be present for the whole conference. However, once it became clear that they were going to be at least 15 minutes late, I decided to go to the courtroom and sign in, hoping they would come in shortly afterwards. As is the custom and courtesy afforded by Judge Bloom, I expected Your Honor to take the bench and begin the conference only after all of the attorneys had arrived and signed in. So I was surprised when I arrived and learned that the

As the Court has probably detected already, Mr. ONeills proposed jury instructions neglect to instruct the jury as to the childrens theory that they were not afforded a timely and adequate post-removal hearing. Notwithstanding Mr. ONeills conspicuous omission of one of the childrens strongest claims in this case, I trust that Your Honor will submit the proper jury instructions and verdict sheets to the jury on all the claims contained in this Courts May 25, 2012 Order (Doc.202). 1

Case 1:99-cv-03329-BMC-LB Document 295 Filed 06/03/13 Page 2 of 8 PageID #: 1856

Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

conference began at 11am sharp and ended only 13 minutes later.2 I apologize for not being there. I stand advised that Your Honor will start on the minute, whether or not all of the attorneys are present. Before I turn back to main subject of this letter, I would like to offer the suggestion that all the attorneys involved in this matter focus much more carefully on the important legal issues at hand, and much less on personality differences between attorneys. We share an important role in the American legal system, making it imperative that we turn to our duties with the utmost seriousness, professionalism, integrity, faithfulness, and precision. As for the alleged failures to comply with court orders, I offer the following clarifications: Yes, counsel for Woo has failed to comply with Judge Blooms May 24, 2013 order that they produce a certified copy of the July 1998 order that Woo proposes as a trial exhibit. Yes, counsel for Woo has failed to produce the supposed order of 1997 that allegedly remanded the Southerland children to the custody of Woos employer. Yes, counsel for Woo has failed to comply with Judge Blooms order to retrieve from the Family Court all of the transcripts that Woo misplaced and provide copies to the plaintiffs. Yes, counsel for Woo failed to comply with Judge Blooms deadline for proposing trail exhibits, whereby counsel for Woo has proposed over 100 new pages of exhibits after the deadline, more than double the pages they submitted on or before the deadline. Yes, counsel for Woo has failed to disclose, pursuant to Fed. R. Civ. P. 26(e)(2), the date that Woo allegedly first made contact with Ciara Manning. Yes, I hesitated to give lay witness testimony in advance, an onerous requirement from which Woos counsel was exempted, and which is not supported by Fed. R. Civ. P. 16. Yes, I emailed a copy of my exhibits to chambers, as did all of the attorneys, before the Court prohibited further emails. Yes, I have a different writing style than many other attorneys, which some readers, especially lawyers, may find flowery. Yes, I waited for Nathaniel and Sonny, Jr. before signing in on May 30 because I presumed, erroneously, that they and I would be extended the same courtesy and civility that parties and attorneys are extended in every other court of law I have ever entered. No, neither Mr. Southerland nor I have received any discovery from Woo in this case, be it documents or responses to interrogatories. Stated concisely, counsel for Woo produced to Mr. Southerland zero documents over the last 14 years, and has produced zero documents or discovery responses to me since I entered my appearance a little over a month ago. No, I could not produce a transcript from the Family Court proceedings in which P.O. Aitola testified because counsel for Woo did not produce a copy of the transcript to me or Mr. Southerland before misplacing all of the transcripts from those proceedings. As the Court is aware, all of the parties have a summary of the testimony, which the parties agree is accurate.

I was also mildly surprised to read in a transcript that certain scurrilous remarks were made about me in my absence. Many lawyers fail to realize that attacking an absent person is an act of self-depravation that often harms the speaker and the listener. 2

Case 1:99-cv-03329-BMC-LB Document 295 Filed 06/03/13 Page 3 of 8 PageID #: 1857

Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

II. Mr. ONeill has violated his duty to pursue the Southerland childrens interests faithfully. When I first met the Southerland children in June 2012, several of them asked me my opinion about Mr. ONeill. My knowledge of the case was limited to the Second Circuits May 2012 opinion, which was a favorable result for the children, so I thought he was probably doing a good job. I expressed the same to them. But even if I had thought he was doing a poor job, I would not have expressed that to his clients because it is distasteful for a lawyer to criticize another lawyer to a third-person, especially the latters client. And because I had yet to meet Mr. ONeill, I lacked information suitable for forming a fair opinion of him. Some of the children did, however, express to me their dissatisfaction with the lack of communication from Mr. ONeill, which is probably the most common problem that clients express about attorneys. Only months later, however, Mr. ONeill committed a major breach of client faith and trust when he failed to seek the childrens authorization before consenting on their behalf to the National Association of Social Workers request to file an amicus brief in the U.S. Supreme Court. Mr. ONeill never advised the children of the request or obtained their consent before consenting on their behalf. This was harmful to the Southerland childrens interests because the brief casts them as victims of abuse at the hands of their father, which is an utter falsehood that portrays the children and their father in a false, defamatory light. Further, the brief to which Mr. ONeill consented argues that Woo acted in the childrens interests in this case, another complete falsehood. To the contrary, the children are seeking damages for Woos multiple violations of their rights and the various forms of abuse they suffered while in foster care. The highly inflammatory amicus brief falsely refers to the children as victims of their father over two dozen times, and directly or indirectly refers to Mr. Southerland as an abuser more than 150 times. Now available on the internet, the brief is a permanent defamatory publication that casts all of the plaintiffs in a false negative light. Mr. ONeills act of giving consent on the childrens behalf betrayed the trust they put in him to pursue their interests faithfully, causing incidental damage to their reputations and prejudicing their rights to receive a fair jury trial. If that were Mr. ONeills only act contrary to his obligations as the childrens attorney, I would not be writing this letter. In fact, I never mentioned that particular indiscretion to the children because, as of that time, I had still not met Mr. ONeill despite my calls to his office, which he never returned; and also because criticism of that nature should be expressed directly between attorneys, rather than to the offending attorneys clients. Besides, Mr. ONeill was still the childrens counsel for the purpose of opposing the writ of certiorari, so I did not see any value in exacerbating the situation by reminding the children of his indiscretion. As explained below, I only learned of Mr. ONeills other indiscretions within the last 30 days or so.

Case 1:99-cv-03329-BMC-LB Document 295 Filed 06/03/13 Page 4 of 8 PageID #: 1858

Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

III. A conflict of interest exists between Mr. ONeill and the Southerland children, which has adversely affected Mr. ONeills judgment as well as his loyalty to the Southerland children. On April 30, 2013, I appeared in this matter for the first time before Judge Bloom in courtroom 11A. When I first arrived, I introduced myself to all of Woos attorneys, and then to Mr. ONeill. Because Judge Bloom had not yet taken the bench, Mr. ONeill and I took the opportunity to talk outside the courtroom. The first thing I asked him was why he had made representations to the Court that the damages in the case would be limited to a 56-hour period. He stated that the law required damages to end on the date upon which a court affirmed Woos removal decision. I asked him what date the removal was confirmed and he speculated that it was sometime between June 12, 1997 and June 14, 1997, a Saturday. I explained to him that no hearing had actually occurred, thus the plaintiffs were entitled to any damages they could prove. Mr. ONeill became angry when I reminded him that he should be seeking to maximize his clients recovery, rather than seeking to truncate it. He responded that if I were to argue in this case that the plaintiffs are entitled to a broader damage measure, I could be sanctioned under Rule 11. That comment seemed out of left-field, especially considering that Mr. ONeill had himself filed a brief in the U.S. Supreme Court, wherein he asserted that if the evidence at trial were to show that the circumstances surrounding the removal had been particularly egregious and had cause long-term trauma to the children, a jury might well award more substantial damages. See November 6, 2012 Opposition Brief, at page 32 n.14 (emphasis added). I then asked Mr. ONeill whether he had considered that his role as appointed counsel might have given rise to an irresolvable conflict between him and the children. To clarify, if the children prevail on any claim in the matter, their attorney would be entitled to reasonable attorneys fees under 1983. Thus, Mr. ONeill, having served on the case for 14 years, would stand to win a considerable amount of money by simply prevailing on a single claim no matter how much damages are awarded. So, if the jury awards the children $1.00 each in nominal damages, Mr. ONeill would nonetheless be entitled to a six-, if not a seven-, figure attorneys fee award. On the other hand, if the children do not prevail on any claim they take nothing, and Mr. ONeill would not be entitled to any fees. As I explained to him, these circumstances have created a moral hazard for the children, whereby Mr. ONeill is not adequately incentivized to pursue a maximum recovery for them.3 The conflict arises from the reality that disputed facts tending to prove the absence of post-deprivation process are intertwined with other disputed facts that might decrease a jurys willingness to award damages. A lawyer in this type of case is, of course, required to follow his clients wishes, even if doing so would place the lawyers fee in jeopardy. Mr. ONeill became incensed when I articulated that line of reasoning to illustrate this glaring conflict of interest. Mindful of Judge Blooms calendar, Mr. ONeill and I carried on the
3

Assuming rationality, a plaintiff would always pursue the higher damage award in a 1983 case even at the risk of losing the case because the alternative, prevailing and winning $1.00, would not be worth the cost of traveling to the courthouse. No rational person would be subjected to the long-term inconvenience, expenses, and stress of litigation in the hopes that they will take home only $1.00 upon a victory. 4

Case 1:99-cv-03329-BMC-LB Document 295 Filed 06/03/13 Page 5 of 8 PageID #: 1859

Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

conversation by email, wherein he modified his position on damages, proclaiming: I do not maintain that the abuse findings truncate compensatory damages. They truncate causation. Again, I found it odd that he would take the position that causation would be cut off because he argued to the Supreme Court that [Woo] can point to no reason why a subsequent ruling adverse to a parent should deprive an innocent child of the right to sue officials for a procedural due process violation when such officials have seized the child in an unconstitutional manner. See November 6, 2012 Opposition Brief, at page 32. Mr. ONeills next offering on the subject came only a week ago. At a pretrial conference before Judge Bloom on May 24, 2013, Mr. ONeill repeatedly represented to the Court that the Southerland children believed that their damages are limited to the 56 hours immediately following their unlawful removal at the hands of Woo. When I heard Mr. ONeill make those representations, I immediately brought it to the Courts attention. I knew right away that he had misstated the childrens position because (1) in their depositions, the children each stated that they were damaged during their respective prolonged periods of foster care, which for some of them continued seven years; and (2) in my conversations with some of the children the prior weekend, they expressed their belief that they were entitled to damages for the abuse the experienced at the hands of foster care families. Nonetheless, when Judge Bloom inquired again of Mr. ONeill, he repeated the 56-hour argument yet again. To provide context, Judge Bloom opened the discussion at the conference by reading from a 2006 affidavit that Mr. ONeill filed with this Court. See August 8, 2006 Order (Doc. 164), at pages 9-10. In that affidavit, Mr. ONeill stated that it would be difficult for the children to differentiate their feelings from the 56 hours of illegal removal to the years of subsequent lawful removal. Id. at 10. By those words, Mr. ONeill not only implied that his clients were given a prompt and adequate post-deprivation hearing, but also that they are not entitled to recover for many years of suffering they experienced while in the foster care system. Not one of the children agree with those propositions, which is why I was shocked to hear Mr. ONeill assert them, and which is why I immediately stated on the record that Mr. ONeill was completely mistaken. Regarding the childrens ability to recover for harm they experienced while in the foster care system, [i]t is well-established that a child in foster care has a liberty interest to be free from harm, and correspondingly, that the state has a duty to protect such children from harm. See Southerland v. Giuliani, 4 Fed. Appx. 33; 2001 U.S. App. LEXIS 2289 (2d Cir. 2001). Although Mr. ONeill appears to be in denial about this glaring conflict, his constant flipflopping on the issue of liability versus damages constitutes objective evidence that the conflict is consciously or subconsciously affecting his judgment. To illustrate, Mr. ONeill has reversed his position on this issue at least eight times during this litigation, with four of such reversals having been made in the last 30 days or so: In the original complaint of 1999, he alleged that the Southerland children and Mr. Southerland were entitled to recover compensatory and punitive damages for the entire period of their separation from one another. See June 9, 1999 Complaint (Doc. 2).

Case 1:99-cv-03329-BMC-LB Document 295 Filed 06/03/13 Page 6 of 8 PageID #: 1860

Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

In the 2006 affidavit, Mr. ONeill stated that the extended period of separation was lawful and thus the children were not entitled to a recovery for any separation beyond 56 hours. See August 6, 2006 Order (Doc. 164). Last year, in response to Woos argument that the children were not entitled to recover substantial damages due to subsequent court rulings Mr. ONeill quipped: [T]he children would welcome the opportunity to put to the test the legal fiction that they were better off removed from their fathers home than kept in it. I suspect that this is a can of worms that the defendants do not really want to open. See June 6, 2012 Declaration in Opposition to Motion to Stay the Mandate, at 9. Next, he argued before the U.S. Supreme Court in November 2012 that the plaintiffs could recover substantial damages for the separation. See November 6, 2012 Opposition Brief, at page 32 n.14 Less than six months later, he stated to me in the courthouse that the plaintiffs could not recover damages for any period of separation longer than 56 hours, adding that any attorneys argument to the contrary would justify sanctions under Rule 11. Less than a week later, citing the Second Circuits May 2012 opinion, Mr. ONeill wrote in an email that subsequent legal proceedings would not limit compensate damages, adding: The unfortunate fact is that the family court is often a rubber stamp for ACS, and that's pretty much what happened in this case. There is a great deal of bias in family court against minorities and men as single parents, and my view is that Sonny was a victim of that bias. It's fair to say that it's an open issue, at least in terms of damages. Perhaps this would support a request for a bifurcated trial. See May 1, 2013 Email of Michael ONeill. Then, on May 24, nine days ago, Mr. ONeill reiterated his position in open court that the damages were limited to a 56-hour period of separation. But on May 29, he argued that the damages were not limited because Woo has been unable to obtain a copy of the Family Court order and does not appear to have any competent evidence to introduce on the subject. See May 29, 2013 Letter of Michael ONeill, at page 3 (Doc.285). Mr. ONeill implied in this letter that the absence of a June 1997 order would eliminate any potential limitation on damages, stating: My reluctance to stipulate to a fact that limits my clients' case is due to the fact that I have never seen the order in question. Id. The next day, Mr. ONeill asserted that documents produced by the City in discovery include a number of orders dating from 1997 bearing the same index number, all of which are consistent with a June 1997 order remanding the Children to the custody of ACS. See May 30, 2013 Letter of Michael ONeill.

Mr. ONeills numerous head-spinning reversals reveal the existence of a conflict. Indeed, no other explanation seems plausible for him to urge an argument that would delimit his clients recovery -- especially when there was neither a factual nor a legal justification for the limit -- and more especially when he already argued for broader damage measures in the U.S. Supreme Court. The conflict being established, Mr. ONeill and I do not agree as to how he should handle it. It is my view that he must put forth a case that tends to maximize his clients recovery. The children have expressed this very preference to Mr. ONeill in my presence. Therefore, notwithstanding his intermittent misgivings, Mr. ONeill has an obligation to pursue the childrens best interests faithfully and zealously. Surely, the childrens ability to recover for
6

Case 1:99-cv-03329-BMC-LB Document 295 Filed 06/03/13 Page 7 of 8 PageID #: 1861

Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

Woos unlawful acts should not be determined by which side of the bed Mr. ONeill wakes up on. He is required by New York law to take a position consistent with his clients best interests. But, as explained below, Mr. ONeills oscillations and other indiscretions, only recently discovered, require this Court to take steps to guarantee that the Southerland children receive a fair trial. IV. Mr. ONeill has prejudiced the Southerland childrens rights by failing to take diligent steps to preserve and pursue their claims, offering judicial collusion as an excuse. The Southerland children and Mr. Southerland have sought to call witnesses Vendetta Williams and Christopher Aitola to testify at trial. Both Ms. Williams and P.O. Aitola were present when Woo removed the children from the Southerland in June 1997. Indeed, Mr. ONeill and I each argued in pretrial conferences that the testimony of these two witnesses would aid the plaintiffs in establishing that no emergency circumstances existed at the time Woo removed the children from the Southerland home. With respect to Ms. Williams, Mr. ONeill and I both submitted letters to the Court explaining the relevance and favorability of her expected testimony. Likewise, with respect to P.O. Aitola, Mr. ONeill and I both submitted letters explaining the relevance and favorability of P.O. Aitolas testimony. After considering the written and oral arguments that Mr. ONeill and I submitted, the Court granted all the plaintiffs the right to call both witnesses at trial so that the jury could hear their testimony. At the close of the May 24, 2013 conference, and before leaving the courthouse, Mr. ONeill and I had a conversation about subpoenaing the plaintiffs witnesses. In that conversation, Mr. ONeill agreed that he would subpoena both P.O. Aitola and Ms. Williams to ensure they were compelled to appear at trial. However, in yet another one of his infamous flipflops, Mr. ONeill wrote four days later in an email that he was no longer willing to subpoena Ms Williams, stating : Brian, thank you for Vendetta Williams' address. Please give me her phone number. I'm not going to subpoena her unless I know what her testimony is going to be. She's your witness. There is no way to reconcile Mr. ONeills representations to the Court with his statement in the email that he did not know what Ms. Williams testimony is going to be. But what is really unbelievable is that he made the following statements in the same email exchange: My belief is that Magistrate Bloom has been reporting back to Cogan and that he is making most of the rulings that are coming from her. By writing such a statement, Mr. ONeill has accused a federal judge and a federal magistrate judge of engaging in farcical, dishonest ploy to give the appearance of judicial impartiality and independence. My reply to Mr. ONeill, which minces no words and is therefore not suitable for publication here, prompted him to penalize me by refusing issue the subpoena that would have availed all the plaintiffs, including his own clients. The fact that Mr. ONeill would penalize a fellow attorney, indeed co-counsel, for admonishing him about making scurrilous allegations about two judges is beyond the pale of acceptable professional conduct. But the fact that Mr. ONeill would betray the trust and confidence of the Southerland children on the eve of trial and after their 16-year quest for redress jeopardizing their rights and claims, says more about Mr. ONeill than I feel is suited for publication here. For sure, it is not flowery.

Case 1:99-cv-03329-BMC-LB Document 295 Filed 06/03/13 Page 8 of 8 PageID #: 1862

Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

Furthermore, as stated above, Mr. ONeill argued to this Court that P.O. Aitolas testimony would be helpful to the Southerland childrens claims. He then represented to the Court that P.O. Aitola, still serving as a sergeant in the NYPD, was available to testify. He next told this Court that he would subpoena P.O. Aitola to testify at trial. Thereafter, on May 24, he assured me that he would subpoena P.O. Aitola along with Ms. Williams. Notwithstanding all of his arguments, averments, and assurances, Mr. ONeill ultimately did not subpoena P.O. Aitola at all, leading the Court to rule that the testimony will never be heard. See May 31, 2013 Order of Judge Cogan. In similar fashion to his failure to subpoena Ms. Williams, Mr. ONeill invoked notions of judicial bias as the true reason for the exclusion of Aitolas testimony, which would have, if given, strongly corroborated the Southerland childrens contention that they were unlawfully removed from the sanctuary of their loving home. V. Conclusion Out of all the many obstacles the Southerland children have faced in obtaining redress for their cruel, unlawful removal from the loving home of their father, it appears recently that no person posed a bigger threat to that goal than their own appointed attorney, Mr. ONeill. Indeed, where Woo merely made false allegations, invented court orders, and withhold evidence of his own guilt, Mr. ONeill masqueraded as the childrens champion, while secretly undermining the claims and rights they entrusted him to vindicate. While Woos lawyer had merely the gumption to oppose the favorable testimony of Ms. Williams, Mr. ONeill would feign an intention to subpoena her only later to renege at the last moment, ensuring that the jury would never hear the favorable testimony she had to offer on behalf of the Southerland children. And where Woo might only have mislaid the transcript of P.O. Aitola to ensure no jury ever heard its contents, Mr. ONeill would ultimately neglect to subpoena P.O. Aitola, causing the Southerland children never to obtain the benefit of a veteran NYPD officers first-hand observations about Woos unlawful acts. At this point, there is little the Southerland children can do to undo the many harms caused by their own appointed attorney. There is no way to take back the defamatory amicus brief that casts them and their father in a false light. Likewise, there is no way to resolve the clear conflict that perturbs Mr. ONeill and drives him to oscillate between opposing legal positions, depending on whom he is communicating with at that moment. There is, however, a way in which the childrens rights and claims may be preserved. That is, this Court must, in light of Mr. ONeills unwillingness to protect the childrens rights in these proceedings, take steps to ensure that the children have a fair opportunity to present all of their claims and to seek a proper award of damages in light of the 16-year ordeal that brings them to the courthouse today for relief. It is, after all, the purpose of the Courts to safeguard the universal guarantees and freedoms provided for by the U.S. Constitution. I am hopeful that this Court will provide that protection to every party, witness, attorney, and juror. If it cannot or will not, God help us all.

/s/

Brian King

Brian King, Esq.

8