Make It Up As You Go
The Archuleta County Division 1 judge who presided over my case was Justin Patrick Fay – an inept, unimpressive decider of fact and truth. I wouldn’t trust him to judge a pie-eating contest. A competent judge will follow the facts and rule on evidence but Judge Fay seems content with following his nose and guessing.
After weeks of anxiety and stress from having the weight of false, ill-gotten Temporary Protection Orders (TPO’s) hanging over my head, it was finally time to go to court. As it seems, the only aspect of my accuser’s long list of fantasy accusations that the court really had to determine was whether or not stalking had occurred. This is what Judge Fay said as he ruled:
“The Court does not find that the testimony and evidence establishes that stalking has been proven even by the preponderance standard. While there were repeated communications barely, the Court does not find that those repeated communications would cause a reasonable person to suffer serious emotional distress. Though, the Court’s concerns about the security camera was significantly reduced by virtue of the evidence presented during the hearing. Based upon the Court’s findings that stalking has not been established, the Court will dismiss case numbers 23C75 and -76, the temporary protection orders will be vacated.”
That was it; not a decision about accusations of harming birds, purported threats, being “weirdly avoidant,” afraid of jealous husbands, and all the other laundry list nonsense? Why then did Judge Fay sit back (asking not a single question) and allow hours of costly, wasted time in court going over all the other stuff my accusers folded into their temporary protection order (TPO) requests if it wasn’t anything he could rule on? What colossal mismanagement and abuse of court time while Judge Fay daydreamed, played Sudoku or whatever the hell he was doing. Well then, so I’m not a stalker – what a relief. That’s based on indisputable fact; not my word. The trumped-up stalking claims (I refer the reader back to the chapter My Accusers, heading Truth Be Damned – to refresh on Mange’s utterly false portrayal of at least one of my text messages) – as with all the rest, were bogus and not reasonable. Judge Fay got that right but nothing else, and never did he admonish my accusers for their wildly false claims. Had Judge Fay had stopped there, I’d have a much different view of him. What should have happened was Judge Fay firmly dismissing the orders with prejudice then clearly and sternly admonishing each of my accusers for their blatant abuse of the legal process. Instead he decided to scold, make fun of and lambaste me (which I later discovered is apparently not evidence of judicial misconduct according to idiots at the State) as he weighed-in with telling personal opinion. I wish he’d explain what the hell he meant because if I wasn’t a stalker and evidence supported that, where did he think I was lying? Read on and be mystified too. Then decide for yourself whether his comments indicate judicial misbehavior or not – with State rules of judicial conduct as reference – which I have included at the end of this chapter (see also: Updates & Latest News).
The last several pages of the 25 August 2023 hearing transcript are especially noteworthy as they illustrate Judge Fay’s faulty and prejudiced reasoning. Just as the perfunctory hearing concluded and moments after dismissing the cases against me, adding insult to injury he proclaimed his own shallow, hurtful assessments: “…despite having significant concerns about Mr. MacDonald’s credibility and the fact that his testimony and conduct seem to be egotistical and condescending, frankly somewhat bizarre and awkward and compulsive, but nonetheless, the Court does not find that — even having the concerns it does about Mr. MacDonald’s credibility, that the burden has been carried.” It was up to my accusers to provide facts to support their claims, which they failed to do; under law, the burden was theirs and not carried. But to believe that the burden was only theirs is wishful thinking. Despite what the law says, I too had a burden to show my innocence. If I had just sat there arms crossed and said ‘Prove it’ this dummy would have likely found me guilty despite zero evidence. The two texts my lame-brained accusers tried to foist on the court stood for themselves; they were never evidence of stalking. Facts about my security system confirmed that no cameras were “focused on (their) bedroom window.” This physical evidence had nothing to do with my credibility and was what Judge Fay weighed on the record to determine relative credibility of my accuser’s stalking claims. So why did he even mention concern for my honesty? Yet another twilight zone puzzle piece. Notwithstanding his findings, Judge Fay probably did not appreciate or comprehend my forthright testimonial indignation; I had been falsely accused of killing animals, stalking, and other strange activities – which put me in a very stressful situation.
Despite weeks to digest events and prepare for court, I remained shocked and stunned by my accuser’s insane assertions. I had great reason to fight back against the petitioner’s world-class lunacy; their outrageous, vacant allegations meant to harm my reputation and fraudulently obtain their TPO’s (temporary protection orders). I admit to being anxious to dispel false claims made against me; I said a lot and perhaps confused or annoyed Judge Fay. Despite my testimony and complete lack of evidence in support of my accusers, it looks like he convinced himself that at least in part Mange and Pavis were credible, and effectively sided with them as if they were right but unfortunately unable to prove anything; in his eyes I was just barely innocent. What kind of judge thinks that way? Their sensational, dubious testimony reads like the Jabberwocky. Which part of my accuser’s hogwash did he buy into? He took it hook, line and stinker. I was up against practiced liars and he just did not get that. With audacity, my neighbors Mitchell Mange and Patrice Pavis perjured themselves throughout by blabbering kooky, offensive, untenable garbage nevertheless Judge Fay did not admonish them. What use is a judge that easily and stubbornly bedazzled by bullshit? If it had been up to me rather than my attorney, I would have had him explain his reasoning (and I use that word generously here). But to be fair, my accusers were quite confident reciting their yarns – as preposterous as they were. One could argue that neglecting to punish litigants for bringing frivolous cases and lying, the courts encourage and perpetuate harm.
To comply with rules of courtroom decorum, I sat in silence (and squirmed) while each of my accusers spouted an endless stream of lies – only to have disrespectful Judge Fay castigate and make fun of me. Judge Fay’s unnecessary, baffling, obtuse critique of my testimony suggests someone lacking keen analytical skills coupled with a runaway case of blithers disease; stark evidence of his limitations. All he had at first were one-sided fictions and random slanderous snippets crafted by my accusers that in retrospect had an indelible hold on a man who just could not get his head around the fact my accusers had been boldly deceptive; somehow they too easily played him for a fool. His (the bully in robes) undue criticisms brought back memories of being bullied as a child for being different by people with so little to offer. My pointed testimony was at times purposely forceful to highlight just how idiotic and ludicrous my accuser’s half-baked complaints were. But close-minded Judge Fay misread my meaning and intent and was propelled to weigh-in with unprofessional and unfounded assessments – leaving me with little if any regard for him. He had not one word for my accusers. He called my testimony “somewhat bizarre.” There I am blind-sided by insane accusations, naturally anxious as I defend myself in a situation beyond anyone’s worst nightmare – and Judge Fay felt it appropriate to make fun of me? He found nothing bizarre about my accusers and their impossible assortment of illogical, unsupported claims? The more time passes, the more disgusted I am with oblivious Judge Fay, my screwed-up neighbors and the sham process. I’ll tell you what full-on bizarre is – to witness a slack-jawed fool lap-up Kool-Aid dispensed by my accusers and their slick, fast-talking, immoral hired-gun attorney.
Who Are You To Judge?
Judge Fay’s impertinent comments and doubt of my veracity are contrary to his administrative duty; to apply law dispassionately, intelligently and fairly. Sir: don’t mistake articulate use of language, intellect, confidence, and clarity of purposeful, measured communication (albeit at times rightly imbued with indignation); doing so predictably lessens you. Another suggestion: don’t use your position of authority to level ill-advised personal swipes at people in your courtroom – certainly not the prevailing party. Such a diminishing display of simplistic, petty ignorance; one clearly in no position to judge others; the man in your mirror is the danger, not me. More advice for Judge Fay: you don’t know me so don’t act like you do. As I said in court, I am Buddhist, a strict vegetarian (for close to 50 years) and harm no animals so to be accused of killing in particular was supremely distressing; horrific. My attorney suggested his criticism was meant to soften the blow to petitioners who failed to prove anything; to still make me look like a culprit. Yet she failed to challenge the judge’s comments while in court. Regardless, her excuse does not make what he said permissible or acceptable.
In this situation, I was judged because of my indignant response to an unwanted, unnecessary intrusion into my life; an inquisition brought-forth because of devious simpletons and presided over by an inattentive judge. How patient and kind was I supposed to be? By the way, I had prepared pages of thoughtful, detailed and accurate rebuttal to each of their many claims but my attorney said don’t submit to the court ahead of time because it would give opposing counsel something to work with. I stupidly acquiesced to her demand. It would have been nice to get something in print to Judge Fay (assuming then that he reads and comprehends with an open mind) to improve my footing. I probably do better writing than speaking anyway, plus having to defend orally in court ended-up being difficult – not a comfortable place to be under any circumstance on top of being anxious to dispel the crazy, preposterous fictions my accusers made. But in the end, it probably wouldn’t have made any difference.
Judge Justin P. Fay called my testimony “compulsive.” Whatever did he mean? My testimony was designed to confront over-the-top allegations from my accusers. Compulsive is defined as: “Resulting from or relating to an irresistible urge, especially one that is against one’s conscious wishes,” also “Having power to compel.” Nothing about my testimony was contrary to my wishes (although I wish I had never been forced into his courtroom). Judge Fay’s revealing comments suggest an undereducated hack who misappropriated a word to describe me. He also labeled me “egotistical and condescending.” We are right back at that common attorney worry; don’t offend the judge or they will rule harshly. As for his assessment of ‘egotistical,’ I think the well had already been poisoned by my accusers. It was a convenient label to describe my forceful presentation; my only chance to tell the court about me – which seems now pretty much a waste of time. Could be that it was a frail ego that compelled him to make unnecessary remarks about me on the record. Think about that. The Cambridge English Dictionary defines condescending as: “To behave in a way which shows that you consider yourself to be better or more intelligent than other people.” Sorry, maybe I did but it wasn’t intentional. It is not so much that I might consider myself superior, but rather that Judge Fay comparatively present as irrefutably inferior; that’s all on him. Probably disappointed that facts of the case did not support my guilt, Judge Fay instead lashed-out in a display of petty, insecure meanness. Oh yes, the difference between us could not be more striking; thank you for the apt illustration. I wonder if when Judge Fay has guests in his court that strike him as not so smart, does he call them ‘stupid?’ I hope not. In my defence, I am demonstrably more intelligent than most other people (MENSA member) – and sometimes don’t do a good job of concealing that; playing dumb so as to not annoy, confound, confuse others. But I am certainly not brash about my gift; facts are laid-out here only to rebut Judge Fay’s needless critique. Perhaps he felt I was being ‘condescending’ when I suggested that for their bonkers spy camera notion to be true, it would require defiance of the laws of physics; light rays can’t bend and make their way from their bedroom window to that security camera in the way they posited. Or maybe it was in response to their baseless bird poisoning claim when I wondered that if they had a cow and it died, would they accuse me of witchcraft. Or maybe it was because I suggested their bizarre tale of a swarm of magpies in my back yard was “Hitchcockian” (as in Hitchcock’s movie The Birds). It was all such a puzzle; obviously mentally unstable people hounding me with permission of the court; a perplexing, senseless waste of time while prisoner in a courtroom of madness.
As the strange, tedious hearing came to an end, Judge Fay cautioned me to not again engage in activities and/or behaviors that put us in court to begin with lest he add them to the existing record and we begin again. What a groundless statement; clear evidence of his prejudice. Where had he been for the last four hours? His counseling underscored the horror of being hostage of a superficial inquiry commanded by an imposter. Further, he encouraged me (sounded more like a scold) to leave the petitioners alone – me, the person who avoided my neighbors like the plague and kept asking them to leave me alone! His unwarranted, unsupported advisories suggest sloppy thinking; product of a judge unable to comfortably arrive at the truth. All my accusers managed to accomplish was a justly earned major hit on their credibility – with Judge Fay the inexplicable, awkward holdout.
We had chewed-up over four costly hours in an insane inquisition going back and forth over a spy camera that never was, talked at length about birds, listened to my accusers misrepresent and spin yarns about my actions and demeanor, and finally heard their idiotic argument about post holes on my property erroneously identified by Pavis as placed on the property line as a way to annoy them. On that as with the rest of their hyperbolic fictions, I found her assertion hilarious and sadly telling of blind ambition to concoct anything negative about me. Shortly after moving into my house, I located official boundary markers and set-up survey string on stakes several feet off the ground to identify property lines. When Pavis took her evidence photo of the row of holes from above the string, in her stupidity, she apparently did not realize that by moving her camera (or likely phone) just an inch or so one way or another could make the holes ‘jump’ from side to side to make it appear that the holes were on the property line. Her scrambled-brain husband came to her rescue in court and called the source of her error ‘parallax’ to explain the mistake. Rather than call it what it was – an idiotic contention from a mad woman – I too kindly adopted Mange’s explanation. By the way, where was Pavis’ camera when all the purported bird mayhem was taking place?
I tried and failed to retrieve daytime video from another security camera pointed at the yard where my neighbors accosted me day of the fake bird incident. Originally, I thought that probably too much time had passed to have the video still on the system hard drive before it was recorded-over or maybe I just wasn’t tech-savvy enough to find it. Later I discovered that when I set-up the system, I neglected to set some cameras to record. I really used the system to monitor cameras real-time from my phone so failed to catch the lack of recording. Alas, that physical proof would have greatly helped prove my innocence and underscore just how much my bully neighbors had lied. Regardless, as with my entire testimony, account about the incident was complete, accurate and true. As for their idiotic play on my ‘jealous husband’ joke, I was not worried about their assertion because it was so utterly preposterous; I had been transparent and consistent about time and place of my comment – I even identified it in my Voluntary Statement to the sheriff along with the fake plastic bird incident and Mange’s gun references. For anyone to trust their malicious twist would require a suspension of disbelief unlike any.
What my accusers had were bogus unproven claims about shooting and poisoning birds; stalking that never occurred; deceitful contention I was some sort of edgy, hand-wringing guy fearful of jealous husband vengeance, and more objectionable, inane garbage. Court reluctantly found me innocent despite their cases lacked substance; were without sufficient convincing factual basis, and not supported by reasonably credible evidence. Judge Justin Fay’s curious remarks and ruling clearly highlight his bias and lack of reliable deductive reasoning skills. In total, they are a sign of his weakness, not strength. If Judge Fay had been thoughtfully attentive (ever wonder what judges look at on their desk during proceedings?), maybe he’d have a better grasp of facts, and would not have made those unkind, uninformed remarks about me.
Motion Denied
As the prevailing party, my pro per motion for reimbursement of nearly $5,000 in legal fees spent to defend myself likely did not read as one crafted by an attorney for besides citing guiding statue and appropriate case law, it was personal; I suggested Judge Fay had been inattentive, captured by my accusers lies, inappropriately questioned my veracity and made untoward comments about my character; it was forceful and accurate. Included was language stating I stood astounded and appalled by his mismanagement. I’m sure I got points for that. He won’t get news like this from timid attorneys. I suggested that failing to award fees and not pursuing charges of perjury against my accusers would advertise lying and use of the court system to harass the innocent was permitted. That all fell flat.
Judge Fay denied my motion notwithstanding Mange and Pavis had no sound case or proof. All they managed was dreamt-up fictions to dupe the court and harass me. Judge Fay cited a single errant case to affirm his ruling: Lawry v Palm, 192 P 3d 550 (Colo. App 2008). This complex business law case was nothing like mine, and denial of legal fees there worlds apart from reasons applicable to my case. Lawry v Palm involved protracted dispute over business conduct and activities. Fay added this sole case: “…establishes that the Court shall assess attorney fees only if the party brought the action without substantial justification, or the action was interposed for delay or harassment, or the Court finds that the party unnecessarily expanded the proceeding by other improper conduct.” This genius pretends he found nothing even though the very language he attached actually supported my motion. Judge Fay overlooked points in Colorado statues (C.R.S. § 13-17-102 and C.R.S. § 13-17-103) favoring me. Using only his case citation, it defies logic that parading calculated, sick lies to obtain TPO’s (temporary protection orders) was not improper and somehow substantially justified.
Judge Fay’s unconvincing, obscure case reference hints of faulty legal acumen. Perhaps he denied attorney fees because he can; maybe even out of spite because I dared question him. He ruled as someone protected by power can do; say about anything, even cite an oblique case arguably distant from mine; his backhanded way of saying ‘FU’? Yet his decision was somewhat predictable; I was told that judges here typically do not award attorney fees; an indefensible, ill-advised tradition that makes zero sense. An appeal of his judgement was warranted; to have a fresh set of eyes review my motion. But that I was told would be costly and fruitless; judges here act as a club and back each other up.
Judge Fay’s questionable denial of reimbursement for expenditures to defend from allegations in light of obvious mockery of the process by the petitioners, plus his reluctant dismissal of the TPOs points to a decision prejudiced by faulty assessments; a callous deprivation of full measure of justice because the man can’t think straight. My take is a prejudiced, incompetent and poorly if at all substantiated judgement by an enfeebled, compromised court.
This is Your Best Effort?
Oh, when the hearing was delayed in August, 2023, and the original TPO’s extended, I was asked to sign new documents. I actually read them (because I have a habit of reading legal documents before signing), and found Judge Fay had approved a 100 yard buffer from the Mange-Pavis property (instead of the previous 3 feet); wholly impractical when I live next door to the neighbor’s funny farm. My attorney called it administrative oversight. I call it lazy inattention by a middling cookie-cutter bureaucrat.
Judge Justin Patrick Fay was appointed by former Colorado Governor Hickenlooper in 2016 to fill a retirement vacancy. I guess anyone will do. We may be stuck with him until he decides to retire. Political judicial appointments circumvent public input; it’s a good-ole-boy scam from the get go; it’s about who you know and who’s ass you kiss. Relegating the public to rating judges after-the-fact is not a substitute for fair representation and voice. We end-up with some judges who are just not up to the task. In 2022, the Colorado Office of Judicial Performance Evaluation found he meets or exceeds standards with exception that of attorneys surveyed, they found him slightly below average in application and knowledge of law, and communications. Rated by non-attorneys, they found him below average in case management, application and knowledge of law, communications and fairness. SEE: Fay, Justin 2022 Evaluation | Judicial Performance (colorado.gov). Unfortunately, the Office of Judicial Performance can’t consider practices in his jurisdiction such as blanket denial of attorney fees – even when motions are well-developed, appropriately and cogently offered.
With only a snapshot of Judge Justin Fay’s court, my impression is of an uninspired, unimpressive placeholder. I lack confidence in his objectivity, competence, comprehension, motivation and analytical skills. Goes without saying I question his application of law. First by allowing protection order nonsense into his court, then mismanaging this disaster by denying sound plea for attorney fee compensation and casting doubt on my motives and character, it is difficult to differentiate actions of the court from those of my accusers; an unlikely tag-team. So long as remedy is uncomplete, this situation will remain unacceptable. Added to that is arguable judicial misbehavior. Have no doubt that I will work doggedly to expose irregularities and injustice. There is no way that I could ever get a fair hearing or trial in front of any Archuleta County court judge – especially after this exposé. Based on experience, I don’t think that you the reader could either.
By the way, the name Justin is a derivation of Justinian. Roman Emperor Justinian is credited with providing a uniform system of laws which in turn built the foundation of our legal system of justice. If he could see what has been done with it, and get a load of his namesake, he’d roll over in his grave.
A Dangerous Judge
As you have learned, I was accused of things that I did not do or say; to those who know me evidence is clear; the charges against me crazy talk from people who conspired to harm my reputation. Where physical evidence could prove my accusers wrong, it did; the non-existent spy camera, their nutty holes in the ground allegation, the (not)stalking texts, and absence of any ‘bird killer’ texts. The rest boiled down to words; credibility of the parties. Under rules of justice, the accused is presumed innocent until proven guilty. Like anyone, I’d prefer a judge base decisions on actual facts rather than wild speculation. Given so much of what my accusers claimed was just too unbelievable, and for all the times their ‘facts’ were proven false, one would think that Judge Fay would realize that their entire story was a lie (or as I said, one long insanity rant); their credibility laughable.
I felt that a reasonable person would easily determine that their repeat and inane declarations about bird killing, stalking, the jealous husband remark and the rest of their testimony were clearly self-serving, spiteful fabrications. So I held belief that without proof, one is considered innocent. But Judge Fay’s findings paint a different picture; he bought the crap my accusers were selling; in his mind I was guilty despite lack of proof – which calls into question judicial diligence and intelligence. That Judge Fay fell for my accuser’s absurd narrative is extremely disconcerting. That makes him a dangerous judge; a potential witch-burner for the ease in which he ascribed poorly-reasoned false traits to me. A coin flip would be preferable to suffering through his inferior methods. Attention Judge Fay: judicial guesswork is not a substitute for sound, irrefutable proof of guilt or innocence. Also, be advised that liars and crazies can obviously come in pairs, you impossible dolt. As long as Judge Fay and his kind are still wearing judicial robes and screwing with people’s lives, I will be here, the on-watch inquisitor. There is one caveat however; if it is found that through some fluke poor Justin Patrick Fay was hired under the Americans with Disabilities Act (ADA), I’ll temper my criticisms accordingly.
Judges like Justin Patrick Fay say and do what they do because they know they can get away with it. That abuse of public trust must end.
Judicial Behavior – My Complaint
My complaint to the Colorado Commission on Judicial Discipline turned on key elements of the 2010 Colorado Code of Judicial Conduct. Based on unwarranted, unkind, demeaning, prejudicial personal swipes Judge Fay made toward me on the record as well as evidence by way of his comments and advisories that he failed to competently and logically comprehend and reason evidence presented, I contend that his conduct, comments and demeanor were at odds with and did not comport with in whole or part Rule 1.2, Rule 2.2, Rule 2.3, and Rule 2.8. Salient portions of those rules are below:
COLORADO CODE OF JUDICIAL CONDUCT, JULY 1, 2010
Rule 1.2: Promoting Confidence in the Judiciary
A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and impartiality* of the judiciary, and shall avoid impropriety and the appearance of impropriety.
Comment
[5] Impropriety occurs when the conduct compromises the ability of the judge to carry out judicial responsibilities with integrity, impartiality and competence. Actual improprieties include violations of law, court rules or provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.
Rule 2.2: Impartiality and Fairness
A judge shall uphold and apply the law,* and shall perform all duties of judicial office fairly and impartially.*
Comment
[1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.
Rule 2.3 Bias, Prejudice, and Harassment
(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.
(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.
Comment
[1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute.
[2] Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.
Rule 2.8 Decorum, Demeanor, and Communication with Jurors
(B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control.
Based on my reading of Colorado Code of Judicial Conduct, I reported Judge Justin Patrick Fay to the Colorado Commission on Judicial Discipline, and hoped for better than a meaningless slap on the wrist because according to rules of the 2010 Colorado Code of Judicial Conduct, his demeanor seemed to rises to an actionable level of judicial misconduct. See: Updates & Latest News for status of that complaint. That he gets passing grades as a judge is concerning; the performance bar must be set awfully low. Regardless, to me and probably others he is an incompetent judge unworthy of office. In time I hope he deeply regrets his behavior; he needs this lesson big-time. Judge: stifle urge to formulate and state stupid beliefs. Instead why don’t you really THINK, double-check (maybe triple-check) your work, and do your job well; dispense only appropriate, fair, precise and cogent legal findings.