CHAPTER 22 - THE FINAL ROUND
A hearing on the Motion to Disqualify Trial Judge was set for September 18th. I hadn’t been idle as that date approached. I had not only prepared the Motion, but a hundred-page lawsuit to be filed against the Church, naming everyone from the priest who had carried out the baptism right up to the Pope himself. The suit was ready by September 14th. I wasted no time in phoning the Herald and the attorneys for the Archdiocese to tell them that it was going to be filed on September 24th unless the baptism was annulled by that day at 9:00 a.m. I made certain that Fitzpatrick understood the thrust of my attack would be to link the Vatican to the Holocaust and promised to rip the Church wide open with new evidence. In reality, all I had was what had already been filed in my custody proceedings, but I thought that was more than enough to do the job, and it was best to keep my opponent off guard. Anyway, if a cursory search of the 1933 New York Times microfilm copies could reveal so much, it was almost certain that the Church itself was sitting on far more incriminating evidence that it had to fear might leak out one day.
On Monday, September 17th, I called Fitzpatrick back to remind him that his Church had seven days to comply. On Tuesday, the 18th, I called again to tell him it was now down to six days.
Tuesday was also “D Day” (or Dump Hickey Day) for me. Only four people showed up to see the judge: Karl Schmidt, Maria, Bennett Lapidus, and I.
Bennett was first to speak. “Your Honor,” he began, “My client’s here today with an Affidavit in Support of his Motion to Disqualify Trial Judge. Before he speaks, and I want to make clear that this is his doing, I would like to address some problems that I’m sure Mr. Schmidt will bring up. As Your Honor is aware, in Florida Civil law there are two witnesses required to support accusations of prejudicial remarks made by a judge if the strict letter of the law is to be followed. The equity of the situation, however, demands that civil procedure be set aside. On the day that the alleged remarks were made by you, there were no witnesses save myself, my associates, and Mr. Schmidt, all attorneys, prohibited by the statute from serving as witnesses. Mrs. Estavan was present, but she can hardly be called as a witness by our side. There was a court reporter, but we ask you to spare Mr. Roffman the expense of requiring a transcript. Instead, we ask that you do justice to the Motion by searching your own memory as to what transpired that day. Mr. Roffman, tell the judge why you want to disqualify him.”
I took a deep breath to get up the courage and then began. “Your Honor, as I stated in my Affidavit, I fear that I may not receive a fair decision in this proceeding due to apparent prejudice or bias on your part.”
“How so?” the judge asked.
“There are six points I would like to address.”
“Proceed,” Hickey said.
“You stated at the onset of the last hearing that you remembered trying the case originally. You then falsely accused me of abandoning my wife and child to run off to Israel for a year. When I corrected you and told you that some five months after my wife left me, I took a six-week vacation in Israel to calm my nerves, you said, Oh well, I knew it was something like that. Needless to say, there is a vast difference between a man abandoning his family for a year, and a man taking a six-week vacation five months after his wife has left him. I would add that I sent child support payments for my boy while I was in Israel. You acted like there were no differences between the two situations and you unfairly implied that I was negligent in my family responsibilities. That was my first concern. Second, you said at the onset of the hearing that you wouldn’t consider religion in this case. Yet, as the press and the court-appointed psychologist have pointed out, religion is at the very core of this case. Dr. Goldberg has testified that the child in question has been beaten and deprived of food by his mother. The boy wishes to practice the religion that his mother swore before God Almighty to raise him in at his ritual circumcision or brith milah. His mother and stepfather have conducted nothing short of a religious war against him. You can no more overlook religion in this case than you can in any other religious war. It is the sole problem that brought us here. Third, you stated in reference to ritual circumcision that, lots of people are circumcised.”
“Well, they are,” Hickey retorted.
“That’s true, but not by a member of the Jewish clergy for religious reasons. Circumcision is one of the cardinal precepts of the Jewish faith. It’s been central to our religion ever since God instructed our forefather Abraham to make it a sign of the covenant between Him, God that is, and the Jewish people. You seemed to downgrade the entire practice to a simple medical procedure. We don’t circumcise for medical reasons in Judaism. We do it as an act of our faith and love for God. If a Jew has the sign of God inscribed there, and understands what it means, he is reminded of God before he uses it to draw a soul into the world. This makes him less likely to commit an act of adultery, homosexuality, or incest. It tells him the purpose for all sexual pleasure.
“Fourth, you stated that you thought it was a disgrace that I would have Bobby preach from the pulpit. You thus implied that my son has no right to freedom of religion or freedom of speech.”
“That’s your interpretation,” Hickey complained.
“Yes, it is,” I said, “and it’s my son’s interpretation, too. Anyway, he doesn’t preach. He sings Hebrew prayers to our God, and I believe that the Constitution guarantees him that right.
“Fifth, you said at the onset of the last hearing that you wouldn’t receive testimony. That wasn’t only fair. It was mandated by the agreement reached between all parties before General Master Dixon when both sides stipulated to a decision based solely on the testimony of psychologists Goldberg and Gray. I waived a very large list of witnesses in agreeing to that. Mr. Schmidt knew full well what he was doing, too, and so did Mrs. Estavan. But you violated both your own instructions and our stipulation agreement by allowing Mr. Schmidt to read to the Court from the social worker’s report. That report was never admitted as evidence, nor did we get the chance to cross-examine the man that wrote it. I’d like you to know that the writer of the report had told me that he had seen my indictment of the Vatican before he came to my house on the day he interviewed my family. Further he told me he was Catholic and he implied he was upset that I would link the Vatican with the Holocaust. He then proceeded to argue theology with my seven-year-old son as is evident by the Torah remarks that are included in his report. Finally, Your Honor, you said at the conclusion of the August 9th hearing that you’d give us your answer sometime in the future. From the tone of your voice, you seemed to suggest that you might table the decision for a long, long time.”
“Don’t you think I’m entitled to a vacation?” Hickey asked sarcastically.
“Yes, you’re entitled. But it’s now been forty days since the hearing and, unfortunately, my son can’t take a vacation from the persecution he’s suffering in his mother’s home. You’ve had almost seven weeks to review the transcripts. Have you done so?”
“No,” the judge admitted, “I seem to have lost them right after the hearing. I asked my secretary to look for them, but she hasn’t come up with them yet. Mr. Schmidt, can you get me another copy?”
“Certainly, Your Honor,” the attorney answered.
“The general master,” I said, “after having heard the facts, ruled that it was neither desirable nor safe to leave Bobby in the care of his mother for more than one day per week. He reached that decision on June 29th, some twelve weeks ago, and yet this matter drags on and on and you don’t know where you’ve placed the transcripts seven weeks ago. My kid’s going nuts while this Court drags its feet. For all these reasons, I respectfully request that you step down from the case and let the chief judge assign it to another judge. Thank you for hearing me out.”
“Mr. Schmidt, have you got something to say about this matter?” the judge asked.
“I think it’s absolutely outrageous that that man can come in here and make such obscene accusations against a man who is as respected on the bench as Your Honor is. I sat here on that day and I remember nothing of what he says. I think he must have a very active imagination and persecution complex, both of which are indicative of why he shouldn’t have custody of the child in question. And as for his having the right to come in here in the first place, as Mr. Lapidus has pointed out, two witnesses are required. Where are they? Mr. Roffman hasn’t even supplied the transcripts from the hearing in question. Why hasn’t he supplied them? Because he knows damn well that they’ll show nothing of what’s been alleged here today. And then there’s the issue of my client’s interests. My fee is $150 per hour. Who’s going to pay my client’s added expense to go all through a repeat of the last hearing with another judge? Mr. Roffman? I doubt it! It’s unfair to ask my client to pay for another hearing. I would add, that after having read Mr. Roffman’s Affidavit, that it doesn’t comply with the Florida Statutes which state that the petitioner must state that, and I quote, the filer fears that he WILL not receive a fair decision. Mr. Roffman states only that he fears he MAY not receive a proper decision. MAY is not the same as WILL. Thus the affidavit is improper.”
The judge took off his glasses and gave me a hard look. “Mr. Roffman,” he said, “Although I’m not prejudiced against your case or your religion, I’m going to grant your Motion.” With these words I felt a surge of relief rush through my whole body. The judge continued: “Both of you are fighting for your child, and whoever loses will probably think I was wrong, but if you already think so, then I’ll step down so you’ll believe that you can get a fair decision. I’ll have you know that my daughter is married to a Jewish attorney. I have nothing against Jews. For all you or I know, I might’ve well ruled in your favor. Mr. Lapidus, draw up the necessary papers, and I’ll see to it that the case is reassigned.”
With tears of joy in my eyes, I said, “Thank you, Your Honor,” and the hearing was over.
Schmidt was furious as we left the room. “Put a muzzle on your client,” he urged Bennett.
He’s listed as a co-counselor, and he’s a damn good one at that,” Bennett beamed.
“I never know who I’m fighting with in this case!” Schmidt barked.
“You’re fighting with us both. We’re a team,” Bennett said. With that we parted while Schmidt continued to mumble to himself. After almost five long years, I was free of Hickey and the case was reassigned to Judge Gerstein.
Luck, after years behind a cloud, had finally emerged to shine on me with a warm and loving smile. For at the very moment I was being freed from the bondage of Hickey’s decrees, John Fitzpatrick was meeting with Archbishop McCarthy to warn him of my upcoming suit.