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Dickhead Judge takes aim at fake religion
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.
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.
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.
Punch: Okay, and do you consider the sub-genius
thing a church of some kind?
Absolutely not. It is a performance art group. It is not a
Punch: A performance art group?
Punch: Oh, okay. Do they have a religious theme in
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.
Punch: What was the [faith] you were parodying?
I was parodying goat worshipers.
Punch: You feel that's fertile area for performance
to parody goat worshipers?
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
was doing in there,” Rachel says, “it took about fifteen minutes.”
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.
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.
Punch: Why don't you just the first thing you come
to that's hilarious, pull it out and explain it to me.
As I'm sure you realize it's very difficult to explain humor.
Punch: Why don't you stop talking and just do what
I ask you to do, okay?
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
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?
Well, my creative thinking at the time was I thought goat
was a funny word and it would be funny.
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?
No, no, that's a papier-mache.
Punch: Papier-mache, that's a lot of trouble just
because the word goat is funny?
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.
Punch ordered. “Go ahead, let's move on. Obviously there's nothing funny in
“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.”
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
“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.
“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.”
“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.
thought. Say it. Baa. Too late: she hung up. I never heard from
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.”
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.
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.