I was tempted to say that I had a much better free speech case than that. The guy will probably win, but he did make a report that caused someone a lot of grief and that turned out to be false. I was punished for telling the truth, and it never caused anyone any grief.
The appeal panel was Patricia Bamattre-Manoukian, Nathan D. Mihara, and Richard J. McAdams, the same as the one that rejected by writ petition. But when I started, McAdams left and was replaced by Wendy Clark Duffy. Judge Bamattre-Manoukian seemed to be the one in charge, and was the only one to do any talking. She showed a general familiarity with the case, as if she had spent about 20 minutes preparing for it. I don't know whether the others had looked at the paperwork at all.
I started by saying that my kids had not seen me for over a year. Judge Bamattre-Manoukian immediately interrupted me, and pointed out that the court order was for visitation. I explained that Cmr. Joseph had delegated the visitation to Elizabeth Lee, and she refused to do it. Cmr. Joseph refused to name a replacement, or to accept a replacement that I found. My ex-wife had independently refused to let me see the kids.
Then I announced that before discussing the evidence, I wanted to explain what evidence was NOT in the case. Judge Bamattre-Manoukian immediately interrupted me again, and told me that since I was not a lawyer, I might not understand the way appeals worked. The appeals court, she said, can only consider the evidence on the record. I assured her that I was only going to argue based on the record.
She had misunderstood me, so I continued with what I was going to say. I argued:
No witness has testified that 50-50 custody would be unsatisfactory. No witness has testified that I ever committed any single act of abuse, or that there is any physical abuse, sexual abuse, or child neglect, or that I am associated with alcoholism, drug abuse, domestic violence, psychological disorder, or other character defect. No witness has testified that Julie is any better parent than I am, or that the kids have been harmed in any way, or that the kids have any behavior problems that are attributable to me. No one has ever explained any better way to treat kids than what I have done. No one has argued that there has been any change of circumstances since our trial in 2005. No witness said that I needed counseling, or that more evaluations would do any good.At this point, Judge Bamattre-Manoukian was getting really eager to hear my ex-wife's argument. The judge had agreed to let me talk for 30 minutes, but I was being cut short after about 10 minutes. I guess my statements must have seemed incredible to her.
My ex-wife claimed that I had distorted things, but she could not refute anything.
When I got the lectern back, I continued to list outrageous things that Cmr. Joseph had done in the lower court. I don't know whether the judge was believing me or not, but my ex-wife could not refute anything. At one point, my ex-wife was given a chance to refute the statement that I had never done anything wrong. She could only mumble something about how I did not do all of the counseling that a court worker had recommended back in 2004, and that I had once kept the kids home from school for a day. She admitted that she does not let me see the kids, but said that she sometimes lets me talk to them on the phone.
I kept talking as long as the judge would let me, and we argued before the court for about 45 minutes. The judge kept hinting that she had gotten my point, but I could have jabbered for another two hours about all the lower court errors. I ended by asking the court to reverse Cmr. Joseph's order in its entirety. The judge said that we would have a decision within 90 days. (According to the California Constitution, she cannot get paid her salary otherwise.)