Buffalo Beast, Buffalo, New York: issue #96, March 29-April 12, 2006
Upstate New York is frequently portrayed as an intellectual hinterland, a cultural backwater. But a local judge has proven the region is really in the vanguard, albeit of judicial overzeal, by doggedly persecuting a religion that doesn’t even exist. On February 17, Orleans County Family Court Judge James P. Punch officially stripped Rachel Bevilacqua of custody of her son, Kohl, which she’d enjoyed since 1997, and barred her from any contact with him. He granted Kohl’s father, Jeff Jary—who refused to return the child to his mother after his Christmas visit—sole custody.
Anyone who’s ever tried to argue a parking ticket or watched daytime television has some notion of fractious, sneering judges. They’re ubiquitous. It’s common too, many lawyers will tell you: the pretense of objectivity notwithstanding, judges inevitably inject their personal biases into the matters they oversee. James Punch, a black-haired, double-chinned and bespectacled larva with a Rovian smile, is exemplary.
What’s so bizarre about this otherwise typical family court drama—a bitter, protracted farce in which a child’s interests appear glaringly subordinate to some parental vendetta—is the motive behind Judge Punch’s decision. Nowhere in the partial court transcript Rachel Bevilacqua provided The BEAST is any evidence presented that her care resulted in any detriment to, or had any deleterious effect on, her son. Stranger still, Punch repeatedly interrupted Bevilacqua’s testimony during the February 3 hearing to question her about her participation in the Church of the SubGenius, a satirical group known for parodying religious beliefs in print, on radio, and in public performances. He did so despite the fact Bevilacqua testified her son had no involvement in or contact with SubGenius activities, in particular a festival featuring irreverent send-ups of religious beliefs that incorporated ribald humor and sometimes involved nudity of the hippie/free-spirit variety.
Rachel’s testimony about her religious affiliation marked a change in Judge Punch’s disposition in this portion of the proceedings. Just before Bevilacqua answered questions from her attorney, Francis Affronti, about the Church of the SubGenius, she corrected Affronti about a fundraising effort for an actual Anglican church, of which she was a member. When Affronti asks Rachel if she had been trying to start her own church, she explains she was merely trying to raise money to construct a new building for an existing Anglican parish. But, Punch poses the same question: “And you were starting up your own Anglican church?” moments later, as though he had missed the entire exchange.
From that point, Punch continued to interject until he was essentially conducting his own examination of Bevilacqua about the Church of the SubGenius.
Judge Punch: Okay, and do you consider the sub-genius thing a church of some kind?
Bevilacqua: Absolutely not. It is a performance art group. It is not a church.
Judge Punch: A performance art group?
Bevilacqua: Yes.
Judge Punch: Oh, okay. Do they have a religious theme in their performances?
Bevilacqua: Yes, the theme of the performances is parody and satire and they satire both politics and religion.
Judge Punch instructs Affronti to continue his questioning, only to resume his own line of inquiry seconds later. Examining photos of Rachel in suggestive costumes or nude at a SubGenius “X Day” festival that have been entered into evidence, Punch focuses on a picture of her wearing a papier mache goat’s head.
Judge Punch: What was the [faith] you were parodying?
Bevilacqua: I was parodying goat worshipers.
Judge Punch: You feel that's fertile area for performance to parody goat worshipers?
Bevilacqua: The intent, Your Honor, was supposed to be funny. All of our things are supposed to be funny.
When he turns to Affronti and asks, “Do you mind if I ask for a couple of questions because this is fascinating? It's a whole new world of performance arts,” Affronti, obviously uncomfortable, objects with meek deference. The judge sustains the objection at his own expense but, his gleeful inquisition thwarted, he quickly turns peevish. Even after Affronti thinks better of eliciting the Judge’s wrath and retracts his objection, Punch, in an obvious passive aggressive sulk, insists, “I'm not going to ask any more questions, not a single one.”
This, it turns out pretty quickly, is a lie. But what’s astounding is that a child’s wellbeing is at stake and what really gets Judge Punch’s goat is—well, goats. Bevilacqua contends he was distracted much earlier, though, when the photos were first offered into evidence. “Judge Punch said he needed some time to compose himself because the images were ‘so disturbing.’ So he took the pictures back with him into his office and shut the door.”
Not being a health professional, I’m unsure what salutary or mollifying effect being alone with the offending material was supposed to have. It’s impossible to say precisely what transpired during that intimate, in-camera examination; Rachel, to her credit, won’t speculate. But it’s the judge thereafter exhibited nothing like post-orgasmic placidity. SubGenius Reverend Ivan Stang, a shrewd, genteel man whose relentless, scathing humor underscores a profound seriousness, thought the material would be dull for a man in Punch’s position. “Judges,” he told me in a lilting Texas timbre, “are famous for cruising high-class S&M joints.”
“Whatever [Punch] was doing in there,” Rachel says, “it took about fifteen minutes.”
What’s worse, according to Bevilacqua, the judge—after fussing with Affronti—actually ignored her remaining testimony.
“After Mr. Affronti objected,” she says, “His Honor made a big show of not listening. He started cleaning his desk, reading a book, checking his e-mail, and all the time with this smug smile like, ‘None of this is going to show up on the transcript.’” Bevilacqua thinks it’s impossible to appreciate his manner just from reading the record, without seeing how he acted, but I think she may be underestimating—Punch is such an inelegant, irrepressible prick that his brazen ignorance fairly leaps off the page. One family law practitioner I spoke to characterized the transcript as “45 pages of drivel.”
All of the photos and the SubGenius issue should have been immaterial, of course, once Bevilacqua and her lawyer demonstrated her son was not a participant at “X Day” or in any other way associated with the Church of the SubGenius, which they did almost immediately following the judge’s interjection. Bevilacqua emphasized that even though her child had internet access, his surfing activity had always been limited by a filter. But the judge remarks later anyway that “any ten year old child cruising the web [who] Googles his mother's name and finds those pictures posted…would be very disturbed.” It’s not clear from this misapprehension whether Punch is a Luddite or merely a recalcitrant dolt; but Bevilacqua, an articulate woman with a frank, deliberate way of speaking, observes interestingly of the Orleans County judiciary: “I think they’re just afraid of the internet.”
Whether or not that’s true, Affronti and Bevilacqua clearly failed to establish the inconsequence of the SubGenius evidence to Punch’s satisfaction. Jary’s attorney, Lance Mark, in what struck me as a pretty half-assed bit of lawyering, led off his cross-examination of Rachel by questioning her based on a Wikipedia.com printout about SubGenii. When he attempted to enter it into evidence—even though Rachel disputed much of its contents—Judge Punch instructed Mark, “You know, it just doesn't matter at this stage. I think it's just one of those things obviously I'm not going to send the child back with her…The proof seems just incredibly overwhelming against her.”
“The way I felt at the moment when I knew he wasn't going to return Kohl to me,” Rachel told me, “Was kind of like stepping on a stair that isn't there. And kind of like having a limb torn off while hot irons are applied to the back of your neck.” Still Punch wasn’t through with the photos. Minutes later, he was at it again.
Judge Punch: Can I interject a question. Could you hand her the exhibits and just show me one thing in those exhibits that's funny to you. Would you just pick one out for me just so I, because the sense of humor is elusive to me I guess and maybe you can help me with that, okay.
Bevilacqua: Okay.
Judge Punch: Why don't you just the first thing you come to that's hilarious, pull it out and explain it to me.
Bevilacqua: As I'm sure you realize it's very difficult to explain humor.
Judge Punch: Why don't you stop talking and just do what I ask you to do, okay?
Bevilacqua: Yes, sir.
Judge Punch: We will keep going until you can find something that's just going to knock my socks off with the humor of it and we'll proceed. Since you have such a big organization devoted totally to humor, I would really like to learn more about it so find the funniest picture and then explain the joke to me. How about the Barbie doll that’s being crucified with the swastika on the nipples, is that a pretty good one?
In the midst of this rigorous badgering, Punch audaciously queries Affronti: “Any objection to my asking my questions?” Practically daring the lawyer to reiterate his earlier exception.
Judge Punch: Would it be funnier if it was a goat as opposed to a pig's head? Is it funny because it’s a goat or just because it's an animal?
Bevilacqua: Well, my creative thinking at the time was I thought goat was a funny word and it would be funny.
Judge Punch: Just to say goat…Isn't this a lot of trouble to go to to dress up in some kind of, I don't know, it looks like some kind of S and M outfit and actually get a goat's head? Is that a real skull?
Bevilacqua: No, no, that's a papier-mache.
Judge Punch: Papier-mache, that's a lot of trouble just because the word goat is funny?
Remarkably, after all of this gratuitous ire, Rachel actually apologized to the judge for upsetting him, but Punch snapped back, “I don't need your sympathy, ma'am. Don't offer me your sympathy again, do you understand?”
“I didn't mean it as sympathy, sir,” she said.
“Stop talking,” Punch ordered. “Go ahead, let's move on. Obviously there's nothing funny in those pictures.”
“We had no idea that any of that was going to happen,” Rachel says now of Judge Punch’s monomania. “My lawyer had said at the very beginning that no performance art can be a factor in child custody, it's irrelevant. So we didn't prepare anything to deal with that. We had no warning that these pictures were going to be entered in evidence or that they would be accepted as a basis for decision-making if they were. We didn't realize that basically all those [neglect] allegations were an excuse to open the case up so Judge Punch could get to the real issue: my butt, and its photographic representation on the internet.”
The “overwhelming” evidence against Bevilacqua amounted, according to her, to testimony from Dr. David Sheffield Bell—who was allowed to testify despite being the judge’s personal physician—that her Kohl may have suffered for years from untreated asthma. (She insists no pediatrician, in years of routine physicals, ever diagnosed her son as asthmatic.) Kohl’s father also testified, although she points out his testimony also focused on photos of her SubGenius activities.
“We thought we had an open-and-shut case,” Bevilacqua says. “The allegation was that I had run away and couldn't be found. Well, [we had] phone records showing that not only was I available, but my ex was talking to me on the very day that he said he couldn't find me.”
I called the Orleans County Courthouse, but I didn’t come within a telephonic mile of Judge Punch. The farthest I got was Chief Clerk of the Family Court, Mary Washak, a woman who, when she said anything at all, spoke in the clipped, hollow tones of a bureaucratic nonentity. Like most misnamed public servants, Washak seemed to regard people with the primitive mistrust and inextirpable savageness of someone who’s been raised by wolves.
When I asked Ms. Washak if I could speak to Judge Punch, I was greeted with a prolonged silence. I imagined her sabotaging her coworkers’ staplers with a reptilian smile.
“What is this about?” she asked with sudden urgency—as if she hadn’t been idling dumbly.
I told her I was calling about the Bevilacqua case. “You know, this woman is alleging the judge has some sort of bias against her. I was wondering if I might ask the judge some questions.” I admit I might have erred. Maybe if I’d said I was calling about goats—or better yet, just bleated into the phone, Washak would’ve patched me through.
Instead, silence.
“I doubt he’d talk to you if the case is still pending,” she said.
“Right, no, I know he can’t talk about the case,” I said, “But I wondered if he might answer some questions about himself.”
More silence.
“Why don’t you give me your number,” Washak said, “And I’ll call you back.” Like every man, I’ve been lied to by countless women; so I’ve become something of an epicure of female mendacity. I savor the peculiar inflections—roll them around on my tongue like a professional taster. Washak’s effort was pretty rancid.
Baa, I thought. Say it. Baa. Too late: she hung up. I never heard from her.
A conversation with Judge Punch might have been moot anyway. After reportedly receiving scads of unflattering emails, Punch admonished Bevilacqua in court for posting information about the case on her blog and issued a gag order, precluding her from publishing again. In imposing this restriction, however, Punch—ever obsessed—inadvertently revealed he’d violated the rules of evidence against viewing material related to a case that has not been entered into the official record—which includes a litigant’s blog. Her lawyers asked Punch to recuse himself, which he did—citing only, in Rachel’s words, “a number of factors”—and has been replaced by the Honorable Eric R. Adams in Genesee County.
Of the support from the online community, Reverend Stang says Rachel—a legal transcriptionist who goes by the SubGenius title “Magdalen,”—is “lucky she’s able to use the internet for something other than entertainment.” But, he says, her case “proves that fundamentalist religious nuts in distant lands are not the only ones who would screw up someone else’s life over something like a cartoon.”
Bevilacqua has new attorneys: Chris Mattingly and Barry Covert, from the Buffalo firm Lipsitz, Green, Fahringer, Roll, Salibsury & Cambria LLP. But the “gag” against Rachel posting to her blog remains until Adams can hear her attorneys’ motion; which means her efforts to raise money for her case are, for the time being, greatly diminished. After living on her parents’ couch for several weeks during the custody proceedings, she moved into an apartment, which she’s renting month-by-month, in Brockport. Her husband is still working in Georgia.
Rachel claims the judge called her a “pervert” in his closing remarks, something I wasn’t able to confirm because the transcripts are incomplete. But it seems utterly in keeping with Punch’s character. When they left court, Rachel says, “I looked over at my mom and she was screwing up her face trying not to cry and I knew that it was real, that she had really just had to watch her daughter be called a ‘pervert’ by a judge. I'm never going to get over that, I don't think. The memory of that word ringing out through the courthouse is going to stay with me forever, but the worst part was that my mom had to hear it.”
Judge James Punch, ladies and gentlemen. He’s a hell of a guy.
Two weeks ago, just before we ran our story on villainous Orleans County troglodyte Judge James P. Punch, a WROC-TV report by Ty Chandler revealed Punch had skipped town for a bit. The judge has impeccable timing. If we were betting people—and our dire financial straits suggest we’re incorrigibly reckless prognosticators—we’d suggest he was evading blowback from the release of a full transcript of the now infamous custody hearing for 10 year-old Kohl Jary. Readers will recall His Honor distinguished himself in that proceeding with a tortured display of self-loathing projection: expressing disgust at photos of Kohl’s mother, Rachel Bevilacqua, provocatively and humorously attired, then retiring to his chambers with said photos in hand; and later squandering precious time snidely questioning Bevilacqua about those very same pictures, despite their blazing irrelevance. It’s doubtful that even James Punch can explain how this pointless, mean-spirited exercise—infinitely more offensive than any evidence proffered against Rachel—served the child’s interests.
Following the publication of our article, Rachel was courteous enough to furnish The BEAST with the full transcript, the completion of which she contends was suspiciously delayed by the court. How propitious for Judge Punch that its publication coincided with his recusal from the case and craven absconding. The complete record confirms Bevilacqua’s most startling accusations. In fact, after we’d read it for ourselves we agreed Punch’s conduct was much worse than she’d led us to believe.
Highlights include the testimony of Kohl’s father: Rachel’s ex-boyfriend, Jeff Jary. Jary proved to be a hostile witness of tragicomic ineptitude, asserting the Church of the SubGenius’ true motives are "hidden under layers and layers of BS" which obscure its "recurring Satan theme." Coming from a smarter man, this might reasonably be deemed a clever exploitation of "Satanic panic." Jary, however, overeager and totally artless, punctuates his absurd melodrama by claiming SubGenii "have orgies [with] children present." What’s frustrating, wading through his bullshit, is no one asked him to square his insistence that the Church’s meetings are sinister gatherings—"not a joke," he averred—with his admission that everything he knew about them came from skimming books and surfing the web. With standards like those, we shudder to think what that makes us experts on.
It’s unfair to expect Judge Punch would catch such a glaring inconsistency—his probing, sweaty-palmed focus was almost certainly on the photos, which were now being entered into evidence. Not to be outdone in his own courtroom, Punch called SubGenius humor "a transparent subterfuge" masking "a little sex club." The scariest implication of their common hysteria is that Jary could one day unseat Punch as a jurist.
Maybe Punch is deluded or maybe he’s just used to masking his prejudices. Confronted with a lying toad like Jeff Jary, Punch retains his unflappable judicial bearing. Passing scathing judgment on Rachel Bevilacqua, an equable witness by contrast, the judge tosses assertive words like "clearly" and "obviously" around pretty casually—even as he’s declaiming about things that have no basis in reality. His closing statement reads like Manson-meets-Falwell.
He refers to Rachel’s spouse, Steve, as "her apparent husband," says that Rachel was "clearly prevaricating" and "severely mentally ill," and observes that “it’s pretty obvious she does not believe what she’s telling us.” “If she wants to go and have some bizarre sex with some obvious anti-religious cult,” he says, “that’s her right.” Like all repressed freaks, he’s a volatile mix of sporadic tameness and frothing brute: "But when she posts those pictures on the Web and the kids at school or somewhere else it leaks out that your mother’s, excuse me, ma’am, but a pervert and you can see her on the Web naked doing her perverted acts, that is extremely damaging to the child."
Punch is such a prodigious scoundrel he manages in the space of a few seconds to, in our amateur estimation, violate multiple sections of the New York State Bar Association’s Code of Judicial Conduct. Some choice selections:
"An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved."
"A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
"The test for appearance of impropriety is whether [a judge’s] conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.”
"A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials and others subject to the judge’s direction and control.”
"A judge shall perform judicial duties without bias or prejudice against or in favor of any person. A judge in the performance of judicial duties shall not, by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon age, race, creed, color, sex, sexual orientation, religion, national origin, disability, marital status or socioeconomic status…"
"A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
"(a) (i) the judge has a personal bias or prejudice concerning a party…"
"A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial."
Contrast this with the fact that Judge Punch stopped Jary’s lawyer more than once during the case to reassure him that he needn’t go on, because he had already decided the hearing’s outcome.
Rachel Bevilacqua declined to answer whether she was pursuing a disciplinary complaint against Punch. Proceedings of New York’s Commission on Judicial Conduct are confidential. Their website states that "A matter becomes public only if the Commission has determined that the judge should be admonished, censured, removed or retired, or if the judge under formal charges has waived confidentiality." Here’s hoping James P. Punch gets what he deserves: to be judged by an insensate boor like himself. --PJ