JUDICIAL EXTERNSHIP SEMINAR
READING MATERIALS
VOLUME IV
NEW YORK LAW SCHOOL
Fall 2005
Professor Craig Landy
Professor Mariana Hogan
TABLE OF CONTENTS
I. CLASS 10: JUDICIAL EVALUATION ..................................................................... 1
NOTES & PROBLEMS ......................................................................................... 5
Jacqueline R. Griffin, Judging the Judges,
21 NO. 3 LITIG. 5 (1995) ............................................................................................ 6
A.B.A. SPECIAL COMMITTEE ON EVALUATION OF JUDICIAL
PERFORMANCE, GUIDELINES FOR THE EVALUATION OF
JUDICIAL PERFORMANCE (1985).............................................................................. 15
Daniel Wise, Evaluations Instituted For Acting Justices,
N.Y.L.J., Jan. 8, 1997 ............................................................................................. 22
Administrative Order of the Chief Judge of the State of
New York, 22 NYCRR § 33 (1997) ....................................................................... 24
Administrative Order of the Chief Administrative Judge
of the Courts, 22 NYCRR § 121 (1997) ................................................................. 26
A.B.A. NATIONAL CONFERENCE OF STATE TRIAL JUDGES,
JUDICIAL PERFORMANCE EVALUATION HANDBOOK (1996) .................................... 28
David C. Brody, The Relationship between Judicial
Performance Evaluations and Judicial Elections, Judicature V. 87, N. 4 Jan-Feb 04 ...... 46
II. CLASS 11: JUDICIAL OVERSIGHT--MORE ON HARMONIZING JUDICIAL
INDEPENDENCE WITH JUDICIAL ACCOUNTABILITY ..................................... 57
NOTES & PROBLEMS ....................................................................................... 60
Excerpts from The Task Force on Judicial Selection and Court
Merger, Judicial Accountability and Judicial
Independence: The Judge Loren Duckman Case
Should Not Be Referred to the State Senate,
51 RECORD 629 (1996). .......................................................................................... 62
Don Van Natta Jr., Judge Rebuked After Woman Is Slain,
N.Y. TIMES, Feb. 15, 1996. ..................................................................................... 68
James Barron, Top Court Official Declines to Reassign
Judge, N.Y. TIMES, Feb. 21, 1996. ......................................................................... 71
ii
Clifford J. Levy, Pataki Calls for Judicial Panel
to Remove a Brooklyn Judge, N.Y. TIMES, Feb. 29, 1996 ...................................... 74
Joyce Purnick, Judge Wasn't Alone in Failing Victim,
N.Y. TIMES, Feb. 29, 1996 ...................................................................................... 77
Joseph P. Fried, Judge's Troubles Echo Throughout
Courtrooms, N.Y. TIMES, Mar. 24, 1996 ................................................................ 79
Transcript of 'Oliver' Bail Hearing At Center of
Duckman Controversy, N.Y.L.J., Mar. 19, 1996 .................................................... 82
George E. Pataki, Letters To the Editor,
N.Y.L.J., Mar. 18, 1996 ....................................................................................... 108
Gary Spencer, Charges to Be Filed Against Duckman,
N.Y.L.J., Apr. 23, 1996......................................................................................... 110
Joyce Purnick, Judge Wins This Round, N.Y. TIMES, Apr. 24, 1996 ................... 114
Matter of Proceeding Pursuant to Section 44, subdivision 4, of the
Judiciary Law in Relation to Lorin M. Duckman, a Judge of the
Criminal Court of the City of New York, Kings County (1997) ......................... 116
In the Matter of Hon. Lorin M. Duckman 92 N.Y.2d 161 (1998) ....................... 127
Mark Hamblett, Budget Boost for Judicial Conduct Commission,
N.Y.L.J., Aug 26, 1998 ......................................................................................... 151
III. CLASS 12: PUBLIC PERCEPTION OF JUDGES AND THE
JUDICIAL SYSTEM ...................................................................................................... 153
NOTES & PROBLEMS ..................................................................................... 159
Harry T. Edwards, Public Misperceptions Concerning The
"Politics" of Judging: Dispelling Some Myths About the
D.C. Circuit, 56 U.COLO.L. REV. 619 (1985) ....................................................... 161
Richard K. Sherwin, Picturing Justice:
Images of Law & Lawyers in the Visual Media,
30 U.S.F.L. REV.891 (1996) ................................................................................. 176
Steven Brill, That's Entertainment! The Continuing Debate Over
Cameras in the Courtroom, 42 JUL FED. LAW. 28 (1995)..................................... 187
iii
Sigmon v. Parker Chapin Flattau & Klimpl,
937 F. Supp. 335 (S.D.N.Y. 1996) ....................................................................... 194
Marisol A. v. Giuliani, 929 F. Supp 660 (S.D.N.Y. 1996) ................................... 197
Clyde Haberman, Juror No. 11 Files a Report On
the System, N.Y. TIMES, Mar. 14, 1997 ................................................................ 200
Excerpts from The New York State Bar Association
Special Committee on Cameras in the Courtroom,
January 26, 2001 ................................................................................................... 202
Tom Perrotta, Judge Considers Request for Cameras in Court,
N.Y.L.J., June 6, 2003 .......................................................................................... 265
G.B. Smith, J., Courtroom Television Network LLC, v. The State
Of New York, (Unpublished) June 16, 2005……………………………………. 266
IV. CLASS 13: BIAS IN THE JUDICIAL SYSTEM ................................................ 279
NOTES & PROBLEMS ..................................................................................... 281
REPORT OF THE NEW YORK STATE JUDICIAL COMMISSION
ON MINORITIES (1991) ........................................................................................... 282
THE FRANKLIN H. WILLIAMS JUDICIAL COMMISSION
ON MINORITIES, Equal Justice…The Work Continues (2000) .............................. 329
Executive Summary of the Preliminary Draft Report of the
Second Circuit Task Force on Gender, Racial, and Ethnic
Fairness in the Courts (1997) ............................................................................... 342
Report of the Southern District of New York On
Implementation of Second Circuit Task Force Report
On Gender, Racial, and Ethnic Fairness .............................................................. 354
Michael Lynch, Race and Social Class in the Examination
of Punishment, in JUSTICE WITH PREJUDICE RACE AND
CRIMINAL JUSTICE IN AMERICA 156, 156-169 (Michael
J. Lynch and E. Britt Patterson eds., 1996) ........................................................... 360
V. CLASS 14: TRENDS IN THE COURTS............................................................... 368
iv
Catherine M. DiDominico, ADR in New York Federal and State Courts,
N.Y.L.J., June 7, 1996 .......................................................................................... 369
Judith S. Kaye, Courts Launch Program 2000, N.Y.L.J., January 26, 2000........ 374
Judith S. Kaye, Making the Case for Hands-On Courts,
NEWSWEEK, October 11, 1999 .............................................................................. 377
David Rottman and Pamela Casey, Therapeutic Jurisprudence and
the Emergence of Problem-Solving Courts,
NAT’L INST. OF JUST. J., July 1999 ........................................................................ 379
Midtown Community Court Materials.................................................................. 387
Meryl Gordon, Street, N. Y. MAGAZINE, December 5, 1994 ................................ 393
Excerpts from the TRIAL PERFORMANCE STANDARDS
& MEASUREMENT SYSTEM ........................................................................... 400
v
CLASS 10: JUDICIAL EVALUATION
It may surprise you to learn that many of the judges you work with are not subject to
regular evaluation, nor are most court systems as a whole subject to evaluation. People in
virtually all walks of life are subject to evaluation. As students, you are graded on your course
performance. You evaluate your professors through course evaluations. And, most workplaces
have evaluation systems for all of their workers, so what accounts for the lack of consistent
evaluation programs for judges and courts?
The Doctrine of Separation of Powers establishing an independent judiciary accounts, in
large part, for the lack of judicial evaluation programs. Also, the rigors of judicial selection
processes have been thought by some to obviate the need for evaluation. The length of most
judges’ terms may also render evaluations moot: evaluations are effective only to the extent that
the judge is receptive to evaluation or in retention circumstances as when the judge is up for
reappointment or reelection. Appellate review of judicial decisions is arguably a form of
evaluation of judges on at least one aspect of their performance.1 Finally, judicial oversight
systems are in place to investigate and respond to allegations of misconduct by a judge.
Despite the reservations, judicial evaluation is increasing in popularity. In 1987 the
National Center for State Courts and the Bureau of Justice Assistance initiated the Trial Court
Performance Standards Project. After almost a decade of work, the Project launched the Trial
Courts Performance Standards and Measurements System. In September 1995, the Judicial
Conference of the U.S. recommended that all federal courts undertake some form of judicial
evaluation. In recent years, several new judicial evaluation plans have been unveiled locally. On
January 8, 1997, Judge Jonathan Lippman, the Chief Administrative Judge of the New York
1
See U.S. District Judges: Record on Appeal, N.Y.L.J., Aug. 1, 1994 at 1 for an example of
publicized evaluation of individual judge's records on appeal.
1
Courts, announced a plan to evaluate certain judges in the state court system. Under the plan,
only those lower court judges (appointed criminal, family, and civil court judges) who were
seeking appointment as an Acting Supreme Court Justice or who were sitting as Acting Supreme
Court Justices would be evaluated.2 A four-judge panel consisting of three administrative
judges, Justice Joan B. Carey, Deputy Administrative Judge for the Courts in New York City;
Justice Barry A. Cozier, Deputy Chief Administrative Judge for Management Support; Justice
Jacqueline W. Silbermann, Administrative Judge for Matrimonial Matters, and the administrative
judge of the court where the justice serves would conduct the evaluations. They would evaluate
the judges on productivity, scholarship, temperament, and work ethic, as well as any complaints
filed with court administrators.3
The first round of evaluations under the new scheme resulted in four demotions by the
Office of Court Administration and several reassignments.4 The Daily News editorial
commenting on the demotions crowed, "Some judges get junked;"5 perhaps a reference to their
earlier "Junk Justice" series criticizing the judiciary. The editorial lauded Judge Lippman for
holding a group of New York judges accountable for their performance, calling the process
"...truly groundbreaking."6
On the other hand, the reaction among the bench and bar was not uniformly positive. The
judges commenting on the process cited several concerns. Some feared that given the
2
Appointment as an Acting Supreme Court Justice brings arguably greater prestige and a
caseload of more significant cases, and a salary increase of $9,800 per year.
3
Daniel Wise, Evaluations Instituted for Acting Justices, N.Y.L.J., Jan. 8, 1997, 1.
4
Daniel Wise, 4 'Acting Supremes' Demoted by OCA, N.Y.L.J., May 8, 1997, 1.
5
Some judges get junked, DAILY NEWS, May 9, 1997.
6
Id.
2
composition of the panel doing the evaluating (all administrative judges), the most compelling
criteria evaluated would be productivity. Others worried that the frequency of the evaluations-initially at four month intervals and then every year--would leave the judges constantly
vulnerable to political pressure in deciding controversial cases. Additionally, some questioned
why only one relatively small group of judges was being singled out for evaluation.
Despite the controversy, the Chief Judge of the Court of Appeals formally adopted the
program for evaluation of Acting Supreme Court Justices.7 Shortly after the announcement of
the formalization of the New York State plan, the U.S. Court of Appeals for the Second Circuit
sent 5,500 lawyers who practice before the court a survey on the judges.8 The survey is
anonymous and covers such issues as the judge's courtesy, preparedness, and opinion-writing.
The completed forms will be distributed only to the judge being evaluated. Chief Judge Jon O.
Newman, in announcing the program, stated, "Any institution serving the public should from
time to time invite an assessment of its performance."9 The reaction to this program was also
mixed. Because the program relies on each judge's desire for self-improvement, some skeptics
referred to it as "window dressing."10
The state plan involving evaluation by judges and the federal plan involving evaluation
by attorneys each received mixed reviews. Another local plan involves evaluation by a citizen
group. The Nassau County Patrolman's Benevolent Association has distributed a "Judicial
7
On April 29, 1997, Judge Judith Kaye, Chief Judge of the New York State Court of Appeals,
amended the rules of the Chief Judge relating to the temporary assignment of justices and judges
[22NYCRR Part 33]. The amended rules are included in the readings.
8
Deborah Pines, 5,500 Lawyers Mailed Surveys on U.S. Judges, N.Y.L.J., May 28, 1997, 1.
9
Id.
10
Id.
3
Review Form" to all its members.11 Each police officer who appears in court is asked to evaluate
the judge using rankings from excellent to unacceptable.12 The PBA will use the forms to
determine whether or not the organization will endorse judges up for reappointment or
reelection. Again, response is mixed. Defense lawyers fear that evaluations by police witnesses
could have a chilling effect on the judges, but the PBA defends the process by arguing that it will
help them make more meaningful endorsements.
While the Daily News maintains that judicial evaluation programs will "[help] restore
some public faith in the courts"13, others recognize that they are not without dangers. These
evaluation programs and the controversy surrounding them illustrate some of the challenges
inherent to fair and effective judicial evaluation. Some of the significant questions include: who
is doing the evaluation; what criteria are being used; what is the purpose of the evaluation; what
is the timing of the evaluations; how is data being collected, synthesized and analyzed; how are
the results being used and disseminated; and, what are the sources of information? Compare
these aspects of the local plans to the Trial Court Performance Standards and Measurement
System goals and methods.
As you read the materials, think about whether judges and/or courts ought to be evaluated
at all; and if so, under what circumstances? How would you structure an evaluation plan? What
criteria would you use? Given the inherent problems of evaluating judges and courts, how does
the TCPS?
11
Daniel Wise, Poll on Nassau Judges, Prosecutors Criticized, N.Y.L.J., July 21, 1997, 1.
12
Id.
13
Some judges get junked, DAILY NEWS, May 9, 1997.
4
CLASS 10: NOTES & PROBLEMS
1. Pick an Evaluation. Put yourself in the shoes of an attorney who practices before your
judge. Pick the sample evaluation in the materials that you think works best and fill it out as you
think an attorney who appears before your judge would. Review your completed evaluation. Do
you think it conveys an accurate assessment of your judge? Do you think your judge could or
would benefit from seeing the evaluation? How would you improve the evaluation form? Bring
your completed evaluation form to class.
2. Evaluate the New York plan to evaluate Acting Supreme Court Justices. We will use the
ABA Guidelines for the Evaluation of Judicial Performance to evaluate the New York plan as
described in Judge Kaye's Administrative Order.
3. Creating an Evaluation System. Is it impossible to have a meaningful evaluation system for
judges while maintaining the independence of the judiciary? In class we will attempt to develop
an evaluation plan for New York State Judges that does not threaten judicial independence.
Think about the following issues in advance of class:
a. What do we hope to accomplish by evaluating judges?
b. Which judges would you evaluate? Would you limit your evaluations to the Acting
Supreme Court Justices and the judges that apply for those appointments?
c. What makes a good judge? What criteria would you use to evaluate judges?
d. Who should do the evaluating–Other judges, litigators, jurors, witnesses, litigants,
court administrators, non-lawyer members of the general public, a blue ribbon
commission?
e. What about confidentiality of sources? Will you consider anonymous reports? How
will you protect sources of negative comments from retaliation?
f. How will the evaluations be used? Who will see them?
5
Litigation
Spring, 1995
From the Bench
*5 JUDGING THE JUDGES
Jacqueline R. Griffin
District Court of Appeal, Fifth District
Copyright © 1995 by the American Bar Association; Jacqueline R. Griffin
In the past four years, I have developed a case of what I can describe only as "chronic cognitive
dissonance"--a state of mind in which I believe I am perceiving things clearly, but cannot
reconcile my perceptions with what others seem to perceive. It reminds me a little of the
exchange between Don Quixote and Sancho Panza, in which Sancho complains about his
master's insistence on calling a barber's basin a knight's golden helmet:
Who the devil can hear a man call a barber's basin a helmet and vouch for it four days running
and not think him who says it to be stark mad or without brains?
Don Quixote's vigorous response was appropriate to the certainty of his belief in what he saw:
I swear thou art the shallowest, silliest and most stupid fellow of a squire that I ever heard or
read of in my life. Is it possible that all this while you have been with me you have not
discovered that everything to do with knights errant appears to be chimaera, folly and nonsense?
This is not really the case. There is a crew of enchanters always amongst us who change our
deeds and transform them according to their pleasure and desire either to favor us or injure us so
what seems to you to be a barber's basin appears to me to be Mambrino's helmet.
But am I Sancho or Quixote? Are my perceptions correct or have I been deceived by
enchanters?
My discomfort is increased by the fact that I find myself in disagreement with some of the same
progressive voices with whom I have so often agreed in the past. I am not afraid of change;
honest, I'm not. When I first developed this malady, I was a 43-year-old, brand new appointee to
the state appellate bench, only the second woman ever to serve on my court. After 15 years as a
civil trial lawyer, most of my professional life has been about change. Yet the apparent uncritical
acceptance of this new idea has left me shaking my head.
The cause of my worry? Judicial performance evaluation commissions.
You may not even have heard of them; so far they exist, or are about to be implemented, in only
a handful of states: Alaska, Arizona, Colorado, Hawaii, Tennessee, and Utah.
Although both the title and the structure of these "commissions" vary significantly from state to
6
state, the underlying premise seems constant. In order to enhance "voter awareness" and popular
participation in judicial elections, states have sponsored commissions to regularly review each
judge's performance, to publish the commissions' findings to the public immediately before
election, and to recommend to the voters whether the judge should, or should not, be retained on
the bench.
Depending on the approach taken in any given state, a majority of the evaluating
commissioners may be lay people, as in Colorado, or a majority may be lawyers and judges.
Commissioners may be selected and appointed in a variety of ways, typically a combination of
appointments by the governor, the leaders of each house of the state legislature, and the state's
chief justice. In one state, the state supreme court makes all appointments. In another, the
governor gets to appoint a majority of the members. The enthusiasm of the appointing
institutions for this idea of judicial evaluation commissions appears, not surprisingly, to be
proportional to their power of appointment.
Once created, the commissions decide on appropriate judicial performance criteria and then
disseminate polls to lawyers, jurors, litigants, court staff, law enforcement, and other judges, to
rate the judges on these criteria. They hire professionals to compile and analyze the poll results.
Some judicial evaluation plans also require the judge to appear before the commission for an
interview, for which he is given an internal score. Under some versions, the commission has
witness-subpoena power; some conduct public hearings. Finally, after completing this work, the
commission selects whatever it determines to be "pertinent information" obtained about the
evaluated judge, drafts the narrative as it chooses, and then disseminates it to the public, along
with its recommendation that the voters either retain or not retain the judge.
These commissions have been spawned in the context of merit retention and are justified on the
basis that they fill a void created when merit retention was introduced. The argument, *6 of
course, is that in the crucible of a contested election, the public is suffused with pertinent
information about the incumbent judge, whereas, in a merit retention election, because there is
no opposing candidate, the public is unfairly starved of the information it requires to make an
informed decision.
In fact, contested judicial elections are not very informative. Moreover, what normally happens,
in Florida at least, is that most of the incumbent judges draw no opposition, and thus go virtually
their entire careers with no opponent. They do not even appear on the ballot. In merit retention,
on a regular basis, each judge appears on the ballot, and her performance is open for public
discussion. Anyone who has any adverse comment about the judge is free to speak, and, as we
have learned in Florida, that can and does happen. The fact that it rarely happens may simply
mean that our selection process is pretty good, and judicial performance evaluation commissions
would constitute an unnecessary new burden to impose upon the already critical shortage of
funds available to operate our courts. See ABA Special Committee on Funding the Justice
System, The Justice System Funding Crisis: What We Can Do about It, 32 The Judges' Journal 6
(Winter 1993).
Of the jurisdictions with these commissions, Alaska's is the oldest. Created in 1976, Alaska's
"Judicial Council" is described in an article by Susan Keilitz and Judith White McBride entitled
7
Judicial Evaluation Comes of Age, appearing in the Winter 1992 issue of the State Court Journal.
The authors observe that Alaska's council has "rarely" recommended that a judge not be retained,
and "few" Alaskan judges have been rejected by the voters. Apparently, Alaskans attribute this to
the fact that they have a good selection process. Keilitz and McBride report that there is little
hard evidence to demonstrate the effectiveness of the program. Whether it has done any harm or
had any negative impact on the judiciary or the judicial process goes unmentioned and,
apparently, uninvestigated.
Colorado's plan, which was implemented in 1988, is probably the most widely known--perhaps
because it is in some ways the most radical. In Colorado, a majority of the evaluating
commissioners are neither lawyers nor judges. This was done in part because of the belief that
the public had a general distrust of lawyers and would not give credibility to a commission
dominated by them. See Anne Rankin Mahoney, Citizen Evaluation of Judicial Performance:
The Colorado Experience, 72 Judicature 210 (Dec.-Jan. 1989). Colorado has done a good job of
documenting the development and evolution of its program, and its annual reports offer candid
insight into the strengths and weaknesses of these commissions.
The public evaluation aspect of these commissions is beginning to engender resentment on the
part of judges because of the critical lack of resources and excessive caseloads that are
increasingly a feature of the state courts. See ABA Special Committee on Funding the Justice
System, The Justice System Funding Crisis: What We Can Do about It, 32 The Judges' Journal 6
(Winter 1993); Brent Stinski, Why Lady Justice is Wearing Rags, 32 The Judges' Journal 12
(Winter 1993). Heretofore such problems were borne with more stoicism, but judges point out
that it is not fair for a commission, directly or indirectly, to express criticism of a judge's level of
performance or recommend against retention based on criticism of the quality of a judge's work,
if she, in fact, is doing the best that can be done under the circumstances. Some (nonjudge)
observers are beginning to suggest something in the nature of a bill of rights for judges subject to
public evaluation by these commissions so that they can, at least, obtain the training they need.
See Gordon I. Zimmerman, An Educational Bill of Rights for Judges, 16 State Court Journal 31
(Fall 1992).
It is useful to emphasize the distinction between "judicial evaluation" plans and judicial
evaluation "commissions." The court systems of at least half of the states are exploring, or have
developed, judicial evaluation plans-- internally operated programs for assessment and selfimprovement of judges. From state to state, these programs are as striking for their differences as
their similarities, but, typically, they involve the dissemination of surveys to several sources
concerning observations of a judge's performance in a number of areas such as integrity, legal
ability, preparation, communication, and docket management. The evaluators may include
attorneys who appear before the judge, litigants, jurors, social workers, court personnel, law
enforcement and probation officers, or other judges. I have even seen some discussion of polling
"court watchers."
These surveys are done under a cloak of anonymity in an effort to foster candor on the part of
evaluators and to protect the judge from improper influence. Peer evaluation--in which a select
committee of peers observes a judge's work and provides confidential feedback--has also figured
in the evaluations. In some plans, a self-assessment by the judge supplements other techniques.
8
Consistent with the self-improvement function of judicial evaluation, in most jurisdictions the
results of these evaluations are communicated only to the evaluated judge and the presiding
judge. In 1985, the American Bar Association's Special Committee on Evaluation of Judicial
Performance published its Guidelines for Evaluation of Judicial Performance, in which it
observed that "[e]xcept to the extent required by the particular program, the results and data
should remain confidential." Confidentiality is deemed desirable in order to foster willing
participation and candor on the part of the judge.
Judicial evaluation plans offer substantial potential for improvement of the judiciary. Most
judges want to be better judges, and any program that offers a judge reliable feedback can
materially assist in that process. Even judges who do not understand they *7 have a need to
improve or who do not really care about their performance will find the data difficult to ignore
and are likely to use this to make the necessary improvements to be retained or reelected. Finally,
the raw data collected from these evaluation programs are invaluable for the development and
design of continuing judicial education. The only real downside risk from such judicial
evaluation plans appears to be wasted time or money if the program is poorly conceived or not
supported by a commitment to the goals by all the participants.
Although the sources of my information are largely anecdotal, it appears that the impetus for
the creation of judicial evaluation commissions comes mainly from legislators. The courts have
stepped in when legislative action seemed inevitable, in the belief that if lawmakers were bent on
the creation of such commissions, the court system could do a better job. In one state, there were
legislative threats to do away with merit retention altogether if a commission was not created. In
another, a creation of judicial evaluation commissions was the legislature's price for scrapping a
widely criticized method of selecting the justices of the state supreme court. In yet another state,
the creation of the commissions has been described as "spite legislation"--a means of controlling
the judiciary by a very conservative legislature that is highly suspicious of the judiciary and
unhappy with the decisional trends of the 1980's.
You may be wondering what this has to do with an intermediate appellate court judge in
Florida, and why I would pick a periodical read mostly by trial lawyers to write about it. The
answer is simple. The idea of judicial evaluation commissions seems to be moving east--sort of
like a swarm of killer bees. Anyone who uses and cares about our court systems needs to be
aware of this development and to think deeply about the risks and benefits inherent in this radical
new development. So far, aided by an unusual ecumenical fervor on the part of some of the states
that have created these commissions and by the qualified approbation of certain well-respected
institutions, such as the American Judicature Society, criticism or even skepticism of this new
institution seems strangely mute.
In my own state of Florida, so far this idea of judicial evaluation commissions has not fared
very well, and this is in large measure attributable to the lawyers of our state, not the judiciary.
Various committees of the Florida bar have looked at commission proposals for years, but have
remained skeptical. Most trial lawyers recognize that carefully selecting a judge who is expected
to exercise the extraordinary privilege of judging with integrity and complete independence is
preferable to a system that discourages our best lawyers from choosing a judicial career and
9
continually reminds those who do that "big brother" is watching.
Criticizing the Critics
The only critical article I have found concerning judicial performance evaluation commissions
was written by a lawyer, not a judge. In 1987, Darrell McGowen, a Chicago attorney, wrote an
article published at 75 Illinois Bar Journal 620 concerning then-pending proposals for merit
selection, which at that time were expected to include a plan for "judicial retention
commissions." He observed:
If a judge is nearing the time for retention commission evaluation and is presiding over highvisibility cases in which he or she is called upon to rule contrary to the philosophical, social or
political interests of the retention commission members, or contrary to the political party or
interest group responsible for their commission membership, there is a real danger that the judge
will act, or appear to act, out of concern for his or her desire to be approved by the commission.
He also pointed out that these commissions may have an effect opposite to the one intended:
A judicial retention system which is dependent on the political process and the multitude of
influence groups which make up society will not in fact always be fair and unbiased and will
frequently carry with it the perception of being unfair and biased. In a governmental system
which relies on its citizens to voluntarily abide by court rulings, whether or not they agree or
disagree with such rulings, it is of fundamental importance that those handing down the rulings
be perceived as being fair and unbiased.
After spending the last several years observing decision-making in matters important to the
bench, the bar, and the public, it seems to me that bad decisions sometimes are made not so
much through bad motives, but simply through inadvertence. There is too much to do and too
much to know, and everything happens very fast. It is hard to take the time to think about things.
Things get done because they have been done by somebody else, or we assume somebody else
has thought them through. The idea of the establishment of state committees funded at public
expense to tell the voters whatever the committees deem appropriate about whether or not a
judge should be on the bench deserves a lot of thought.
To me, the peril inherent in judicial evaluation commissions seems so obvious and likely to
result in problems so predictable that I do not understand why others do not seem to see these
likely problems or dismiss them so easily as inconsequential. Lip service is paid to the obvious
threat to judicial independence these commissions pose, with no more apparent safeguard than
the hope that whoever the commissioners are, they will do the right thing. Yet, these institutions
are being created, sometimes at a constitutional level, with the expectation that they will govern
the election or retention process for the next century. Once begun, they may not be easily ended.
If a judge's right to remain a judge is dependent (or even only influenced) by the will of a
committee of 10 to 15 other people, sooner or later judicial behavior will be affected.
Last month, I spoke to one of the proponents of these commissions, who related to me the
following recent events. In one of the states with judicial evaluation commissions, two of the
members of the commission established to review trial-level judges in a certain district belonged
10
to some arch- conservative organization that was unhappy with one of the local judges because
of a couple of rulings he had made. These commissioners tried to convince the commission to
give a "do not retain" rating to the judge in hopes he would be turned out of office. They failed,
however, to get the commission to go along.
This was told to me to reassure me, I think--to show me that my fears that these commissions
might be misused *60 are unfounded. My perception of this story was different--and chilling.
What it tells me is that within such a short time after the creation of these commissions, there is
already evidence of efforts to attempt to use the commission to replace a judge for the
unpopularity of his decision-making rather than his lack of skill or diligence as a judge.
Until now, the reports on the workings of these commissions have made them sound quite
benign. Indeed, one report actually suggested that the judges thought the commission interview
was fun. It is highly unlikely that this judge was having any fun. By rights, he should have been
angry and disappointed. Why would anyone intentionally create a system that would expose its
judges to such a risk? What if next time this arch-conservative organization has four or six
members on the commission instead of just two? Or, suppose other commissioners find it
convenient to create alliances with these two commissioners for reasons that may have little or
nothing to do with this judge. And the next time this judge has a difficult issue to decide, will he
be completely heedless of the power of the commission and its members?
There is no doubt which side of this *61 issue is the politically correct one. The possibility that
the risk may not be worth the largely unmeasured benefits in judicial performance is dismissed. I
believe the reason for this is not that judicial evaluation commissions are so great a political
innovation that their ineluctable logic and unassailable merit cause any criticism to wither in its
light. It is certainly not that these commissions do not pose an awful lot of problems, both in
theory and in practice, because they do. It is because the proponents have occupied the political
high ground in a way that has largely preempted debate.
The dual premises on which the argument for these commissions is built are that judges must be
"accountable" to the people and that a well-informed voting public is a good thing. It is
impossible to argue with these statements, but that does not make the desirability of judicial
evaluation commissions self- evident. The unique office of "judge" is given to those chosen to be
entrusted with extraordinary responsibilities. It is essentially a fool's errand to create the office of
"judge of the judges" for, if judges must be carefully selected and accountable, then surely those
entrusted with evaluating the judges should be especially well chosen and especially
accountable--and so it goes.
Ironically, however, judicial performance evaluators have no accountability for anything they
do. It is interesting to note that one of the recommendations in the 1993 report of the Colorado
judicial evaluation commission is for the establishment of an "appeals" process.
Given, therefore, the unchallenged imperative for "accountability" and the importance of an
informed electorate, the desirability of judicial evaluation commissions becomes self-evident.
"How else could it be done?" Perhaps the problem comes from the assumption that, if these
objectives are sound, something must be done to promote them no matter what the
11
countervailing consequences.
State judges are the most exposed to public evaluation of any elected official, and the public is
as well informed about judicial performance as it chooses to be. Trial judges conduct their work
every day in a public place. Every appellate judge's work is instantly available in every public
library in every county in the state. The press covers the courts intently. It is wrong to justify
commissions on the basis that voters do not have the time, skill, or motivation to take advantage
of this access, and on the further premise that someone else should do it for them and feed it to
them in a quick, easy-to-read format. The most extreme example of this is the suggestion in one
state that the commission's evaluation of each judge should be printed on the ballot!
In the abstract, we believe what was said in The Federalist: "The complete independence of the
courts of justice is peculiarly essential in a limited constitution." The Federalist No. 78
(Alexander Hamilton). Yet, for proponents of the judicial evaluation commissions, the issue of
judicial independence is too abstract, and we are too used to having plenty of it to contemplate
seriously that anything could actually jeopardize it. Of course, any judge who dares to worry
aloud about judicial independence is met with the taunt that he opposes judicial evaluation
commissions because he is afraid he will be exposed by them. This has left state judges, already
one of the most politically powerless and unsophisticated groups in America, very little room to
debate. And with each state, the discussion gets even more abbreviated. As it is, state-by-state,
commissions happen.
Apart from "voter awareness" and "accountability," the positive purpose of a judicial evaluation
commission is to impel poorly performing judges to do better. If they do not, they risk a "do not
retain" or a "no opinion" recommendation. I readily concede that if the commission is composed
of competent people who have no political or other agenda and if they are given adequate
resources and funding to do their work, the commission should have an inspiring effect on the
work habits or work product of weak judges. This would be very good, and since it is always
much easier in my own work to affirm the good work of a trial judge than to reverse based on the
judge's error, my own self-interest would favor this result. The contingencies do niggle, however.
I have not seen any standards for appointment to membership of these commissions other than
diversity of geography, gender, race, ethic origin, and political affiliation. The lawyer members
usually have only the requirement of membership in the state bar. Certainly, it would not be
realistic to expect the appointees to these judicial evaluation commissions to be more competent,
conscientious, or politically pure than the persons presently being appointed to the various
judicial nominating commissions of individual states. In fact, it could be worse since the judicial
evaluation commission will likely be a more powerful and more politically charged appointment.
Conjure up a possible scenario for the membership of one of these commissions in your own
state and then decide whether it is a good idea.
It is also worth noting that the commissioners do their work without compensation other than
recoupment of expenses. This is a task that is extremely time-consuming so the members either
have to have the luxury of a lot of time, or they will not do their jobs very well. And someone
can serve on these commissions for up to eight years. There appears to be no requirement of
training--ironic in a performance evaluation commission. Equally ironic is that commissioners
12
are given absolute immunity for whatever they do--in other words, there is no "accountability."
And any judge who is given a "do not retain" has no access to information on why or how the
decision was made, and he is unlikely to have the resources to mount a response *62 to the statefunded public recommendation against him.
Finally, there is the question of resources. Legislatures seem more interested in creating these
commissions than in funding them. Not surprisingly, adequate funding was the Colorado
commission's first listed recommendation for improvement of the program.
Protecting Good Judges
There is potentially one very good reason to create judicial evaluation commissions, although it
is not the force driving most state legislatures. In theory, at least, such commissions might help
protect good judges from defeat at the polls. A judge sitting for merit retention is especially
vulnerable to well-organized and well-funded attacks by special interest groups who may be
unhappy with a particular decision of the judge or who may object to a judge's religious, social,
or judicial philosophy.
In my own state of Florida, we have been witnesses to two such attacks. The first, orchestrated
mostly by pro-life forces, sought to unseat Chief Justice Leander Shaw, who had authored the
opinion of the Florida Supreme Court confirming that the right to privacy in our state
constitution included abortion. More recently, a far more vicious campaign was waged in a failed
attempt to remove Chief Justice Rosemary Barkett from the bench, primarily based on the charge
that she was "soft on crime."
Even the most popular and adept judges are ill suited for the sort of hand- to-hand combat that
such campaigns increasingly have become. And even where opposition to a merit retention
candidate is not formally declared, special interest groups often efficiently disseminate "voter
guides" designed to unseat offending judges. This is commonly done at the eleventh hour, so the
candidate has no time or ability to respond.
It varies from region to region, but these days approximately 30 percent of the electorate
routinely votes "no" in judicial retention elections, no matter who the judge happens to be. That
does not leave a very large margin for error where a "special interest" attack is leveled at a judge
up for retention. The thinking of many supporters of judicial evaluation commissions is that a
judicial evaluation done by a "blue ribbon" panel in which the public has confidence will
counteract the false or distorted information disseminated by special interest groups bent on
removing a competent judge from office.
The available figures suggest that the recommendations of judicial evaluation commissions do
not make much of an impact on the 30 percent of the electorate who usually votes "no." No
matter how glaring or effusive the commission's evaluation of the judge, they still vote "no." The
hope can only be that the rest of the voters will take the evaluation commission's favorable
recommendation into account when they cast their ballot.
13
So far, however, there does not appear to be much evidence to prove this thesis. None of the
published articles or reports I have seen has identified any judicial retention election where a
candidate who had been favorably reviewed by the commission was attacked by special interest
groups. Even if a judge turns out to be incompetent, unethical, or unwilling to do his work, the
possibility that the negative recommendations of a judicial evaluation commission might assist in
getting him off the bench may not justify the likelihood that the commission will interfere, even
inadvertently, with the independence of competent judges and the risk that one of these
commissions might malfunction.
In the Talmud, it is written: "Woe to the generation that judges its judges." Sometimes there is
wisdom in an old idea.
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This article is reprinted with permission from the January 8, 1997 edition of New York Law
Journal. © 1997 NLP IP Company.
New York Law Journal
Volume 217, Number 5
Copyright 1997 by the New York Law Publishing Company
Wednesday, January 8, 1997
EVALUATIONS INSTITUTED FOR ACTING JUSTICES
INITIAL APPOINTMENTS WILL BE FOUR MONTHS
By Daniel Wise
COURT administrators this week began informing judges throughout the city of plans to
overhaul the system of elevating lower court judges to Supreme Court.
Chief Administrative Judge Jonathan Lippman said that without a formal system of evaluation,
lower court judges promoted to "acting" Supreme Court status often continue in that capacity
with no review of their performance.
"Appointment as an acting Supreme Court justice is a privilege, not an entitlement," Judge
Lippman said. "We want a merit-based system that insures that only the most effective and
productive judges are serving as 'acting' justices."
The decision to revise the appointment system, said Judge Lippman, was made after an informal
review at the end of 1996 of the performance of approximately 104 judges who have been
appointed acting Supreme Court justices, mostly from Civil and Criminal Courts. Those reviews
revealed a relatively small minority with problems, he said.
To avoid any perception of unfairness, Judge Lippman added, all acting justices were given a
four-month appointment, rather than a full year's appointment as has been customary. In the near
future, all of the acting justices will meet with their supervisors, and those with problems will be
given an opportunity to correct them before a final decision on their status is made at the end of
April.
The decision will be made by a four-judge panel consisting of Justice Joan B. Carey, Deputy
Administrative Judge for the Courts in New York City; Justice Barry A. Cozier, Deputy Chief
Administrative Judge for Management Support; Justice Jacqueline W. Silbermann,
Administrative Judge for Matrimonial Matters, and the administrative judge of the court where
the justice serves.
Judge Lippman said the panels will evaluate productivity, scholarship, temperament and work
ethic, as well as any complaints filed with court administrators.
One in 10 acting justices could find their positions in jeopardy, according to estimates. Neither
22
Court of Claims judges, who are assigned to hear felony cases, nor elected Supreme Court
justices, are subject to the review procedures.
In the future, reviews of acting Supreme Court justices will be conducted annually, Judge
Lippman said.
Promotion Process
A parallel procedure is being instituted to decide who should be appointed an acting justice.
The same three administrative judges will be on those review panels as well as the administrative
judge from the court - Family, Criminal or Civil - where the lower court judge has been serving.
Lower court judges become eligible for appointment to the Supreme Court after two years. For
Civil and Criminal Court judges, the appointment carries with it a $9,800 pay increase. Family
Court judges receive the same pay as Supreme Court justices, $113,000 a year.
Because merit will be the key factor, Judge Lippman said, seniority will be taken into account
only when all other factors are equal. In addition, those appointed for the first time will be given
a four-month appointment, during which their performance will be evaluated.
During that probationary period, the Association of the Bar of the City of New York, together
with the appropriate county bar association, will be offered a chance to review the judge's
credentials.
The new procedures were approved by the Administrative Board of the Courts at its December
meeting.
Judges React
Reaction to the plan from a number of acting justices reached yesterday was not favorable.
Acting Justice Beverly S. Cohen, the president of the acting justices' association, said a number
of judges expressed concern that "people will be taken down for political reasons or because
someone else has more political pull."
Justice Cohen said that she recognized the importance of weeding out unproductive judges, but
added that a method should be found that does not single out Civil, Criminal and Family Court
judges from elected Supreme Court justices and Court of Claims judges.
Acting Justice Jeffrey Atlas, a Criminal Court judge, said the new procedures have left many
acting justices "scared, furious and demoralized." Court administrators seem to think that the
"key to productivity is to instill fear. That's dreadful."
23
MCKINNEY'S NEW YORK RULES OF COURT
STANDARDS AND ADMINISTRATIVE POLICIES
RULES OF THE CHIEF JUDGE
Copr. (c) West Group 2002. All rights reserved.
Current with amendments received through 6/15/2002
Pursuant to the authority vested in me, and upon consultation with the Administrative
Board of the Courts, and with the approval of the court of Appeals of the State of New York, I
hereby amend, effective immediately, Part 33 of the Rules of the Chief Judge [22 NYCRR],
relating to temporary assignment of justices and judges, to read as follows:
PART 33. TEMPORARY ASSIGNMENT OF JUSTICES AND JUDGES
33.0 General
Temporary assignments of judges and justices of the Unified Court System pursuant to
article VI, section 26, of the Constitution shall be made by the Chief Administrator of the Courts,
in his or her discretion, subject to the Constitution, article VI, section 28, subdivision b, after
determining the need therefor and the advisability thereof consistent with the objectives of the
Unified Court System; provided, however, that such temporary assignments shall be made with
due regard forthe courts from which and to which a temporary assignment is made and with due
regard for the official and appropriate interests of the judge being assigned. When made for a
period in excess of 20 calendar days, such temporary assignments shall be made by the Chief
Administrator in consultation and agreement with the presiding justices of the appropriate
appellate divisions on behalf of their respective courts, provided further that if the Chief
Administrator and a presiding justice are unable to agree, the matter shall be determined by the
Chief Judge.
33.1 Temporary Assignment of Judges to the Supreme Court
In addition to the criteria set forth in section 33.0 of this Part, all
assignments to the Supreme Court of judges of courts of limited jurisdiction, other
than the Court of Claims, shall be made pursuant to rules promulgated by the Chief
Administrator which shall provide for:
(a) minimum standards of judicial service as a prerequisite for consideration;
24
(b) recommendations by administrative judges, bar associations and others who may have
knowledge of the capabilities of the judge under consideration; and
(c) limited terms of assignment and a procedure for evaluation of the qualifications of the
judge prior to a designation or redesignation for temporary assignment.
25
MCKINNEY'S NEW YORK RULES OF COURT
STANDARDS AND ADMINISTRATIVE POLICIES
RULES OF THE CHIEF ADMINISTRATOR OF THE COURTS
Copr. (c) West Group 2002. All rights reserved.
Current with amendments received through 6/15/2002
Pursuant to the authority vested in me, and upon consultation with the Administrative Board of
the Courts, and with the approval of the court of Appeals of the State of New York, I hereby
amend, effective immediately, Part 33 of the Rules of the Chief Judge [22 NYCRR], relating to
temporary assignment of justices and judges, to read as follows:
PART 121. TEMPORARY ASSIGNMENT OF JUDGES TO THE SUPREME COURT
121.1 General
All temporary assignments of judges to the Supreme Court from a court of limited jurisdiction,
other than the Court of Claims, [for a period of more than twenty calendar days] or designations
of eligibility for such assignments, shall be made by the Chief Administrator of the Courts, in his
or her discretion, upon consultation with and agreement of the presiding justice of the
appropriate Appellate Division, pursuant to Part 33 of the Rules of the Chief Judge and in
accordance with the procedure set forth in this Part.
121.2 Procedure for Selection
(a) Selection of judges for temporary assignment pursuant to this Part shall be made by
the Chief Administrator upon recommendations from [the appropriate Deputy Chief
Administrative Judge as to] an evaluatory panel consisting of the appropriate Deputy
Chief Administrator for the Courts within and without the City of New York, the Deputy
Chief Administrator for Management Support, the Administrative Judge for Matrimonial
Matters, and the administrative judge of the court where the judge serves. The Chief
Administrator may alter the membership of the panel where circumstances require. The
panel shall consider the need for judges to be assigned, the availability of judges for
assignment and the capability of the judges eligible for assignment.
(b) In determining the capability of judges eligible for assignment, the [Deputy Chief
Administrative Judge] evaluatory panel shall consult with administrative judges and with
bar associations and other persons or groups as may be appropriate, [concerning the
competence, character, experience and judicial temperament of the eligible judges.] and
shall consider the following criteria with respect to each judge:
(1) productivity, including effective docket management and prompt case
disposition;
26
(2) scholarship, including knowledge and understanding of substantive,
procedural and evidentiary law of New York State, attentiveness to factual and
legal issues before the court, application of judicial precedents and other
appropriate sources of authority, and quality and clarity of written opinions;
(3) temperament, including the ability to deal patiently with and be courteous to
all parties and participants; and
(4) work ethic, including punctuality, preparation and attentiveness, and meeting
commitments on time and according to the rules of the court.
The panel also shall consider any complaints filed with court administrators.
(c) No judge shall be eligible for temporary assignment pursuant to this Part for a period
in excess of 20 calendar days unless that judge has served in a court of limited
jurisdiction for a period of two years.
(d) The Chief Administrator, upon consultation with and agreement of the Presiding
Justice of the appropriate Appellate Division, may except a judge from all or part of the
requirements of section 121.2(b) in determining the judge's eligibility for an assignment
not in excess of 20 calendar days if the needs of the courts warrant such action.
121.3 Terms of Assignment
Temporary assignments shall be for terms of no greater than one year, provided that the initial
assignment shall be for a term of no greater than four months. Where appropriate, the Chief
Administrator may designate, pursuant to section 121.2 of this Part, a judge as eligible for being
selected for temporary assignments over the course of a term of not more than one year. Judges
shall be eligible for redesignation at the conclusion of a term pursuant to the procedure set forth
in this section.
121.4 Termination of Assignment
The Chief Administrator, upon consultation with and agreement of the presiding justice of the
appropriate appellate division, may terminate at any time any temporary assignment made
pursuant to this Part.
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CLASS 11: JUDICIAL OVERSIGHT--MORE ON HARMONIZING JUDICIAL INDEPENDENCE WITH
JUDICIAL ACCOUNTABILITY
We have discussed the possibilities and limitations of judicial evaluation as a means of
holding judges accountable and improving the quality of the judiciary. As we discussed, judges
are most often elected or appointed for terms of ten years or more, federal judges for life, so the
electorate and even the appointing politicians cannot hold them directly and immediately
accountable. Long terms help preserve the independence of the judiciary. Judges should decide
cases according to law--free of personal, economic, or political pressure and without fear of
reprisal. This does not mean that judges should be free from oversight. We will examine the
New York State mechanisms for judicial oversight by studying a recent controversy.
In the spring of 1996, a New York City Criminal Court Judge, Loren Duckman, came
under intense scrutiny by the public, the press, and politicians for his handling of a domestic
violence case. His case offers an example of New York State’s judicial oversight mechanisms at
work and offers an opportunity to examine the line between judicial oversight and independence.
Judge Duckman presided over the case of People v. Benito Oliver in Brooklyn Criminal
Court. The defendant was charged with misdemeanors including attempted assault on his exgirlfriend, Galina Komar. After an extended hearing on bail, Judge Duckman released the
defendant on $2,000 bail and scheduled the case for trial. Several days after posting the bail, Mr.
Oliver went to the car dealership where Ms. Komar worked, shot and killed her, and committed
suicide.
As you can see from the news clippings included in the readings, Judge Duckman
instantly became the personification of “junk justice” in the media. He was roundly disparaged
46
for his decision and his alleged insensitivity to domestic violence. Local politicians criticized
him and the Governor demanded his removal.
Judge Duckman was referred to the Commission on Judicial Conduct for investigation.14
Ironically, Judge Duckman's highly publicized case followed two consecutive years of declining
complaints against judges before the Commission.15 The investigation was conducted in secret
and included weeks of closed hearings generating over 4,000 pages of transcript. After
investigation, the Commission's staff filed two complaints against Judge Duckman; interestingly,
neither grew primarily out of his handling of the Oliver case. The charges alleged that Judge
Duckman willfully disregarded the law in some cases and that he engaged in intemperate and
injudicious conduct. They were supported by 363 factual specifications. The Commission
administrator recommended the most extreme penalty-- removal, and their charges were upheld
by an independent referee appointed by the Commission. Judge Duckman contended that the
problems cited by the Commission were not indicative of his overall performance as a judge.
They stemmed from only 30 cases over a five year period in which he handled roughly 50,000
criminal cases.16 At Judge Duckman's request, the hearings before the full Commission in
September 1997 were open to the public. In October 1997, the Commission on Judicial Conduct
removed Judge Duckman from the bench, and on July 7, 1998, the New York State Court of
Appeals upheld his removal.
14
The complaints against Judge Duckman were filed by Joseph Bruno, the New York State
Senate Majority Leader and George E. Pataki, the Governor of New York State.
15
Daniel Wise, Commission Reports Decline In Complaints Against Judges, N.Y.L.J., Sept. 24,
1996 at 1.
16
Matthew Goldstein, Judge's Removal Argued Unjustified In Brief Filed for Thursday Hearing,
N.Y.L.J., Sept. 9, 1997 at 1.
47
Use the readings and the coverage of the Duckman controversy to analyze the inherent
tension between judicial oversight and the judicial independence. The media coverage will also
inform our discussion of public perception of the judiciary during class 12.
48
Class 11: NOTES & PROBLEMS
1. CBS New Video.
A. As you can see, both the print and television coverage of the Oliver case were
constant. Compare the media coverage of the bail hearing with the unedited courtroom
minutes of the hearing included in the readings. How does the early coverage compare
with the complete record of what happened in court? The bail hearing minutes were
printed in the NEW YORK LAW JOURNAL nearly a month after the incident and several
weeks after Judge Duckman took a leave of absence from the bench. What are the
implications of the this delay and fact that the complete record never appeared in more
widely read periodicals?
B. Judge Duckman was initially reluctant to comment on the case. Was he
prohibited under the ethical rules discussed during class 9?
C. The political response to Judge Duckman’s handling of the case raises
questions on the independence of the judiciary. Both Mayor Giuliani and Governor
Pataki criticized Judge Duckman after Ms. Komar’s murder. Governor Pataki pushed for
Judge Duckman’s removal from the bench. Look at the comments these politicians made
regarding Judge Duckman’s decision. Is there a difference between “healthy criticism”
or "fair comment" and “personal attacks” likely to have a “chilling effect on the
independence of the judiciary”? What distinctions do you see? Where is the line
between judicial oversight and erosion of the doctrine of separation of powers? What
about freedom of speech? Does the First Amendment preclude limitations of comment
regarding judges and their decisions?
49
2. Discussion of Judicial Oversight Mechanisms.
Be prepared to discuss the New York Commission on Judicial Conduct. Who is
on the Commission? How do cases get to the Commission? How does the Commission
determine cases? What resources do they have? What forms of discipline are available
to the Commission? To what extent are their proceedings public? We will discuss the
implications of the answers to these questions during class. The NEW YORK POST has
referred to the commission as "...a distressingly toothless tiger."17 Do you think the
commission effectively oversees the judiciary?
What other forms of judicial oversight are possible? Which are most effective?
What oversight process would you propose?
17
Who Judges the Judges?, N.Y.POST, Mar. 7, 1995.
50
Copyright (c) 1996 The Association of The Bar of the City of New York
The Record of The Association of The Bar of the City of New York
October, 1996
EXCEPRTS FROM THE JUDICIAL ACCOUNTABILITY AND JUDICIAL
INDEPENDENCE: THE JUDGE LORIN DUCKMAN CASE SHOULD NOT BE
REFERRED TO THE STATE SENATE
by The Task Force on Judicial Selection and Court Merger
. . .
IV. THE COMMISSION ON JUDICIAL CONDUCT
A. History
In 1973 and 1974 various groups began to advocate for reform of the judicial
disciplinary processes. Because the procedures of the Court on the Judiciary and
Appellate Division were cumbersome, only the most egregious cases were handled. No
permanent staffs existed and no standardized procedures had been developed. The Court
on the Judiciary and the Appellate Divisions, composed entirely of judges, were thought
to be insufficiently independent of the judges under investigation to provide an effective
means of oversight. Moreover, their procedures did not comport with traditional notions
of fairness, because the courts acted as investigator, prosecutor, judge and jury. n67
Hearings were held throughout New York State in 1973. The Report of the New York
State Commission of Investigation Concerning Discipline of the Judiciary in the First and
Second Departments (1974), stated that the procedures for removal have "not worked,
and that a need exists for an independent body to investigate, evaluate, and where
necessary, discipline the Judiciary." As far as the contemplated interplay between the
Commission and the other procedures for removal, the 1973 Report of the Joint
Legislative Committee on Court Reorganization stated:
Like impeachment, [the procedures for removal by the Legislature] have
served as a shadowy threat rather than as a ready sanction for the
disciplining of unfit judges.
The Committee does not propose to tinker with them. They serve as a valuable
safeguard against the most flagrant abuse of judicial power and as a supplement to the
policing of judges' conduct by proceedings in the judicial branch. n68
51
In 1974, the Legislature created a temporary commission with a fulltime professional
staff to investigate and prosecute cases of judicial misconduct. It was made permanent in
1976 by a constitutional amendment. n69 A second amendment, effective April 1, 1978,
replacing the previous section, expanded the Commission's membership and jurisdiction
and abolished the former Courts on the Judiciary. n70
The drafters of the Constitutional amendment creating the Commission took care to
ensure that the Commission was constituted with members accountable to the Governor
and the Legislature. Four of the Commission's eleven members are appointed by the
Governor, four are appointed by majority and minority party leaders of the Senate and the
Assembly, and three are appointed by the Chief Judge of the Court of Appeals, who in
turn is appointed by the Governor with the approval of the Senate. Thus a majority of the
Commission's members are directly appointed by the Governor and legislative leaders; it
is fully responsive to elected political leaders. n71
In deference to the constitutional concept of an independent judiciary, the
Commission is also designed to have sufficient independence to prevent political
concerns from influencing its disciplinary functions: its members have four-year
staggered terms, and neither the Governor, the legislative leaders, nor the judiciary
appoints a majority of the members. As stated by the Joint Legislative Committee On
Court Reorganization which initiated the constitutional provision creating the
Commission:
The composition of the body is designed to assure its independence of
either legislative, executive or judicial dominance. Since no single
appointing authority can control the balance of the Commission's
membership, its makeup should assure public confidence in its
independence and impartiality. n72
The debates on the adoption of the amendment leading to the creation of the
Commission demonstrate a great concern for judicial independence. 1974 S. Deb., Ch.
739, at 3172-75. One senator spoke at length against the amendment on the ground that
the Commission was too political and too beholden to the governor and the governor's
political party. Id. at 3138-39 ("A judge who functions in a system in which his actions or
decisions are reviewed by a commission whose composition is essentially political cannot
be as independent as we would want him to be or as he should be.") On the other hand,
another senator spoke at length of the necessity that the Commission not be controlled by
judges in order to ensure that it be accountable to the people. Id. at 3175-77.
In addition to the composition of the Commission, any judge disciplined by the
Commission has the right to seek review by the Court of Appeals. N.Y. Const. art. 6, §
22(a); Judiciary Law § 44(7). The Court of Appeals plays an important role in
safeguarding judicial independence. No judge may be disciplined by the Commission
without every aspect of the investigation, the hearing, and the potential sanction being
subject to a comprehensive review. Only a judge who waives the right to have the Court
of Appeals review the Commission's procedures and determination would be disciplined
by the Commission. n73
52
The Court of Appeals acts not only as a further safeguard of judicial independence,
but has increased penalties in instances where it believes the Commission has erred on
the side of leniency. In re Sims, 61 N.Y.2d 349 (1984).
B. Experience of the Commission on Judicial Conduct
Under Article 6, §22(a) of the Constitution, the Commission shall receive, initiate,
investigate and hear complaints with respect to the conduct, qualifications, fitness to
perform or performance of official duties of any judge or justice of the unified court
system and . . . may determine that a judge or justice be admonished, censured or
removed from office for cause, including, but not limited to, misconduct in office,
persistent failure to perform his duties, habitual intemperance, and conduct, on or off the
bench, prejudicial to the administration of justice, or that a judge or justice be retired for
mental or physical disability preventing the proper performance of his judicial duties.
The Commission is empowered to establish its own rules and procedures. Judiciary
Law §42(5). Its operating procedures and rules are published at 22 NYCRR Part 7000.
The Commission oversees approximately 3,300 judges and justices. The [*650]
Commission has removed 110 judges from office. In addition, more than 400 judges have
been publicly disciplined and more than 700 have been confidentially cautioned. Over
200 have resigned while under investigation. n74 The Commission on Judicial Conduct
thus has disciplined a far greater number of judges than all other methods combined. n75
The Commission's power to discipline judges for "cause" extends to conduct
"including, but not limited to, misconduct in office, persistent failure to perform his
duties, habitual intemperance, and conduct, on or off the bench, prejudicial to the
administration of justice." n76 In accepting the Commission on Judicial Conduct's
sanction of removal from office for Jerome L. Steinberg, a New York City civil court
judge, the Court of Appeals explained the meaning of "cause" for removing or otherwise
sanctioning a judge:
It is the constitutional provision that provides the basic authority for
imposing disciplinary sanctions, including removal, upon Judges "for
cause". In addition, the new constitutional provision contains some specific
examples of the types of conduct that would constitute grounds for the
imposition of such sanctions. But the list of offenses . . . is not an exclusive
list . . . . This is precisely where the various prescriptive canons and
regulations [citing the rules governing judicial conduct and the code of
judicial conduct] come into play. These canons and regulations, along with
"the general moral and ethical standards expected of judicial officers by the
community" infuse added meaning into the sparse statutory term "for
cause" and provide guidelines for the commission and this court to use in
determining when and to what extent a sanction should be imposed . . . n77
Thus the broad meaning of "cause," first articulated by the Appellate Divisions (see
pp. 26-27, supra) when they had disciplinary authority, survives in the proceedings of the
53
Commission on Judicial Conduct. The Commission has found cause in cases alleging
judicial bias, whether toward a particular party or concerning a type of case or crime. See,
e.g., Commission on Judicial Conduct 1995 Annual Report at 77 (description of cases
involving judges "who have appeared to make light of violence towards women . . ."); In
re Leroy A. VonderHeide, 72 N.Y.2d 658 (1988) (pro-prosecution bias); McGee v. State
Comm'n on Judicial Conduct, 59 N.Y.2d 870 (1983) (same); Sardino v. State Comm'n on
Judicial Conduct, 58 N.Y.2d 286 (1983) (predisposition against defendants).
CONCLUSION
The natural tension between judicial independence and judicial accountability was
successfully resolved in New York by the creation of the Commission on Judicial
Conduct, a politically responsive but independent body to review allegations of
misbehavior that may be made against the 3,300 members of the New York Judiciary,
and to discipline judges who, after due process hearings, are found to have been guilty of
judicial misconduct. An historical review of the procedures for the removal of judges in
New York State demonstrates that the Commission has been far more active and effective
than any of the other institutions and procedures devised. The Commission has removed
110 judges in twenty years and otherwise publicly disciplined 400 more. By comparison,
the Legislature has removed two judges in the last two hundred years. n78 Its standards
and procedures are written and routinized, and it has an expert staff that is devoted solely
to judicial oversight.
...
June 26, 1996
54
ENDNOTES
n67 See, e.g., Cyrus Vance, Report of the Governor-Elect's Task Force on Judicial
Selection and Court Reform (1974); Special Report on Legislation Concerning the
Discipline and Removal of Judges, Association of the Bar of the City of New York
(1974); Report of the Joint Legislative Committee on Court Reorganization, (1973).
n68 1973 Report of the Joint Legislative Committee on Court Reorganization 15.
n69 N.Y. CONST. Art. 6, § 22.
n70 N.Y. CONST. Art. 6, § 22.
n71 N.Y. CONST. Art. 6, § 22 (b). In addition, the Commission must have at least two
non-lawyer, non-judge members, and only four of the eleven members may be judges.
n72 1973 Report of the Joint Committee on Court Reorganization at p. 18.
n73 Stern, 7 PACE L. REV. at 387.
n74 New York State Commission on Judicial Conduct, 1995 Annual Report 1, 22, 53-54.
Over the last twenty years, while the Commission's workload has greatly increased, its
budget has been decreased. The Commission's total budget for 1978-79 was $ 1,644,000 - $ 60,000 more than its budget for 1995-96. (If adjusted for inflation, the decrease would
be substantially greater). During this period, the number of complaints received and
reviewed in a year has more than doubled. Id. at 21. Managing such a case load under this
type of budgetary duress clearly threatens the ability of the Commission to handle its
constitutional tasks.
n75 Stern, 7 PACE L. REV. at 292-94 (footnotes omitted).
55
n76 Article 6, § 2(a); N.Y. Jud. Law § 240.
n77 In re Steinberg, 51 N.Y.2d 74, 83 (1980) (citations omitted).
n78 Stern, 7 PACE L. REV. at 293-94; New York State Commission on Judicial Conduct,
1995 Annual Report at 54.
56
Copyright ©1996 – 1997 by The New York Times Company, Reprinted by Permission
The New York Times
February 15, 1996, Thursday, Late Edition - Final
Section B; Page 3; Column 4; Metropolitan Desk
Judge Rebuked After a Woman Is Slain
By DON VAN NATTA Jr.
Gov. George E. Pataki and Mayor Rudolph W. Giuliani yesterday criticized a
Brooklyn judge for freeing a violent felon who later killed his former girlfriend at a
Queens car dealership, a slaying carried out several weeks after she had sought protection
from the courts.
Using uncharacteristically harsh language, Mr. Pataki and Mr. Giuliani challenged
Judge Lorin Duckman to explain why he chose to free the man, Benito Oliver, 35, of
New Rochelle, despite the protests of prosecutors who had tried to protect his former
girlfriend, Galina Komar, 33, who was killed on Monday.
Mr. Giuliani said he would try on several fronts to have the judge removed, possibly
through impeachment.
Mr. Pataki called the case "a travesty of justice," saying that Judge Duckman's actions
"raise serious questions about his fitness to continue to serve" on the bench.
"For the judge to have permitted him to be at liberty on such facts is an outrage," Mr.
Pataki said.
The case is the latest of several that the Governor and Mayor have seized on as
examples of a judicial system that they say is more concerned with the rights of criminals
than with those of victims. Mr. Pataki, in particular, has been sharply critical of the Court
of Appeals for rulings that he maintains go too far in protecting the rights of criminal
defendants.
In the latest case, at about 12:40 P.M. Monday, Mr. Oliver walked into the Koeppel
Volkswagen dealership in Woodside, where Ms. Komar worked, and shot her once in the
head with a .44-caliber revolver. Mr. Oliver then shot himself in the head. Both died
instantly.
Three weeks earlier, Mr. Oliver was jailed and charged with attacking Ms. Komar
three times in late November and December. Ms. Komar told the police that he had
placed a butcher's knife against her throat and threatened to kill her.
After Mr. Oliver posted a $2,000 bond on Dec. 27, the police immediately arrested
him again, charging him with placing three threatening phone calls to Ms. Komar from
his jail cell at the Brooklyn House of Detention. A judge set bond at $5,000.
But on Jan. 24, Judge Duckman reduced Mr. Oliver's bail to $2,000, saying he did not
believe he should be jailed any longer on charges that he had violated a court order of
protection. In New York State, the crimes of stalking and violating protection orders are
57
misdemeanors that do not carry long prison terms. Because of that, judges are often
powerless to keep a person accused of stalking someone in jail for a long period, lawyers
say.
Even if Mr. Oliver were convicted of all charges, he faced a maximum of two years in
prison, prosecutors said. At the Jan. 24 hearing, Judge Duckman pointed out that Mr.
Oliver had been in jail for 40 days, "which could be the maximum imprisonment
assuming that he is convicted," he said.
Mr. Oliver's release drew angry criticism from prosecutors, who had argued that Mr.
Oliver had three felony convictions, including one for rape in 1977. They also argued that
Mr. Oliver had injured Ms. Komar, putting bruises on her forehead and arms and bumps
on her head.
But Judge Duckman dismissed those arguments. "I am not suggesting that bruising is
nice, but there is no disfigurement," he told a prosecutor at the hearing. "There are no
broken bones. There are no serious physical injury charges, are there?"
At a news conference yesterday, Mr. Giuliani, who went to Ms. Komar's funeral
yesterday, said, "I think the judge should be required to explain how it is that he works
hard to let out on bail someone that a woman said had bruised her, someone that a woman
said was terrorizing her, someone who has a long history of criminal activity."
Judge Duckman did not return calls to his home and office yesterday.
More than once at the Jan. 24 hearing, Judge Duckman said he wanted Mr. Oliver to
be released from jail so he could be reunited with his dog. While in jail, Mr. Oliver had
phoned Ms. Komar, telling her he wanted his dog returned to him.
"He has been in jail enough for a person who is charged with these crimes," Judge
Duckman said. "I want to know about the dog."
The assistant district attorney at the hearing, Patria Frias, challenged the judge. "If
something as simple as a dog can irritate him where he is threatening the complainant
over the phone," Ms. Frias said, "then I am really worried about what he can do if he gets
out."
Mr. Giuliani's attacks on Judge Duckman came after he criticized a Federal judge
who ruled that 80 pounds of drugs were illegally seized in a drug case.
And in December, Mayor Giuliani demoted two Brooklyn Criminal Court judges,
refusing to give them 10-year terms and instead giving them one-year interim
appointments. He also challenged their qualifications to sit on the bench.
Coincidentally, one of the judges Mr. Giuliani had demoted -- Judge Eugene L.
Schwartzwald -- increased Mr. Oliver's bail on Jan. 2, just days after the Mayor had
questioned his qualifications.
At a hearing, Judge Schwartzwald increased the bond on Mr. Oliver from $2,000 to
$5,000. "I see I am looking at your record," Judge Schwartzwald said. "Your record is
actually a terrible record."
Yesterday, Mr. Schwartzwald said: "I did it because I thought the allegations were
serious. And I thought the man was dangerous."
58
Three weeks later, Judge Duckman reduced the bond to $2,000.
The judge also said he was convinced that Mr. Oliver would leave Ms. Komar alone
if his dog was returned to him.
Judge Duckman explained: "By getting the dog back to Mr. Oliver, that would
eliminate one of the problems we have had and do a great deal toward assuring the safety
of Ms. Komar, as well as putting the dog back into the hands of somebody who can
actually care for the dog, because I didn't want anything to happen to the dog, either."
59
Copyright ©1996 - 1997 The New York Times Company, Reprinted by Permission
The New York Times
February 21, 1996, Wednesday, Late Edition - Final
Section B; Page 1; Column 2; Metropolitan Desk
Top Court Official Declines to Reassign Judge
By JAMES BARRON
New York State's top administrative judge yesterday refused to reassign -- even
temporarily -- a Criminal Court judge whose removal has been demanded by Gov.
George E. Pataki and Mayor Rudolph W. Giuliani.
The chief administrative judge, Jonathan Lippman, said it would be "inappropriate"
for him to "assign or reassign" Judge Lorin Duckman, who has been criticized for freeing
defendants in two domestic violence proceedings who were subsequently arrested for
other crimes, in one case a murder.
Judge Lippman's refusal came in response to a letter from the State Senate majority
leader, Joseph L. Bruno, who demanded Judge Duckman's reassignment last week after
asking the State Commission on Judicial Conduct to investigate whether Judge Duckman
"is fit to make the decisions required by his office."
Judge Lippman said he would not reassign a judge "based upon a particular judicial
decision." He also said that "it would be inappropriate for me to comment on a judge's
exercise of discretion in reviewing the amount at which bail should be set, which was the
question before Judge Duckman."
But Judge Lippman left open the possibility that Judge Duckman might be given
different responsibilities, perhaps as soon as next week. He noted that Criminal Court
judges do "rotate assignments in the normal course."
Court officials said that judges are shifted depending on caseloads and scheduling
demands at the beginning of their monthlong sessions. The next term begins on Monday,
but court officials said yesterday that neither the new schedule nor Judge Duckman's
place on it had been worked out.
Judge Duckman, 48, has been under fire for his handling of two cases. In one, he
freed a convicted rapist with a history of domestic violence, who killed his former
girlfriend, Galina Komar of Brooklyn, at a Queens car dealership on Feb. 12. She was
killed three weeks after she sought protection from the courts.
Judge Duckman's critics maintain that he underestimated the injuries she had suffered
in previous beatings when he said at that time that she was "bruised but not disfigured."
Judge Duckman also suggested that the convicted rapist, Benito Oliver, 35, would stop
bothering Ms. Komar, 33, if she gave back his dog.
The Mayor also criticized Judge Duckman for allowing a defendant in another
domestic violence case to go free last summer, hours after a jury had found him guilty of
60
attacking his former girlfriend. The man, Maximo Pena, 39, was arrested and charged
with another attack on the same woman last week.
Judge Lippman's remarks to Senator Bruno, a Republican from Saratoga Springs,
came as the state's Chief Judge delivered a speech in which she asserted that the judiciary
is necessarily insulated from partisan pressure.
"By design and by tradition," Judge Judith Kaye told the Brooklyn Women's Bar
Association, "our courts stand apart, off the front lines and off the front pages, so they
can at all times retain their impartiality." She added, "This is a role that is often
misunderstood, readily misportrayed, an easy target, particularly because the courts
cannot and do not answer back."
"Without independence and respect," she said, "courts are at risk of being chilled,
tempted to reach results that conform to the opinion polls and popular passions of the
moment."
Judge Lippman told Senator Bruno that he would ask the Commission on Judicial
Conduct to "expedite its handling of your request" for an investigation. Henry T. Berger,
the chairman of the commission, said that it was "unusual to be asked to expedite a
matter."
"We do get occasional inquiries from the Office of Court Administration," the
operations unit of the state court system, which is headed by Judge Lippman. "They don't
add 'please expedite' because they know we work as fast as we can."
It typically takes a year to process a complaint, Mr. Berger said, but with budget cuts
in the last five years, "things just go more slowly." He said the commission's budget of
$2.4 million five years ago had been reduced to $1.5 million and its staff had gone from
45 people to 21.
Mr. Berger said that Senator Bruno's letter asking the commission to investigate
Judge Duckman had not arrived, although he was aware of its contents. But perhaps most
significantly, he noted that the commission was not set up to go over the tenor or tone of
judges' opinions.
"As a general matter we do not review decisions by judges," he said. "We're not an
appellate court. We look at whether the judge's conduct violates the canon of judicial
ethics and the code of conduct."
The commission can sanction judges for financial impropriety, for statements from
the bench that show some type of bias, or for actions that raise serious questions about
judicial temperament, Mr. Berger said.
Since its founding in 1975, the commission has recommended some sort of
disciplinary action on 586 complaints, Mr. Berger said.
Mayor Giuliani kept up his attacks all of last week, saying he would "press hard" for
the judge's removal.
Mr. Pataki asked aides to review the judge's judicial history for any pattern of
egregious decisions that would be grounds for impeachment.
61
Judge Duckman's supporters say that the other side is ignoring the fact that domestic
violence charges are misdemeanors in New York State.
62
Copyright © 1996 – 1997 by The New York Times Company, Reprinted by Permission
The New York Times
February 29, 1996, Thursday, Late Edition - Final
Pataki Calls for Judicial Panel to Remove a Brooklyn Judge
By CLIFFORD J. LEVY
ALBANY, Feb. 28
Gov. George E. Pataki today urged a commission that investigates judicial
misconduct to remove a Brooklyn Criminal Court judge who has faced withering
criticism over his handling of two domestic violence cases. And he said that if the panel
did not oust the judge, Lorin Duckman, he would ask the State Senate to do so -- a
punishment that it has meted out only once, in 1872.
Mr. Pataki charged that Judge Duckman had shown a pattern of insensitivity toward
crime victims and a bias against prosecutors that he said was demonstrated most clearly
in the case of a woman who was slain by her former boyfriend in Queens earlier this
month. The judge, rejecting the advice of prosecutors, agreed to lower the bail for the
man, a convicted rapist, after he was arrested for beating the woman, thus allowing him
to go free.
"I have reached a verdict," the Governor said at a news conference this afternoon. "In
my mind, based on the facts that I have, Judge Duckman is unfit to serve. We cannot
have a judge who doesn't believe that domestic violence is a crime."
Although it is far from clear whether the State Commission on Judicial Conduct will
remove Judge Duckman, sentiment in the State Senate seems decidedly against him.
Upon a recommendation from the Governor, the Senate can unseat a judge with a twothirds vote. The Governor is a Republican, and the Republicans control the Senate,
needing only four additional votes to reach a two-thirds margin.
Calls to Judge Duckman were not returned today. But his lawyer, Ronald G. Russo,
said the judge would not resign and would defend himself before the judicial
commission, and, if need be, the State Senate.
"It seems to me that the way these things get resolved is by impartial people
reviewing the record and coming to the determination as to whether there were any
improprieties," Mr. Russo said. "I cannot understand why the Governor saw fit to have a
press conference on this matter. This is political grandstanding of the rankest kind. This is
a full-blown attack by the executive on the judiciary."
The Governor's comments capped weeks of attacks on the judge by an array of
politicians, including Mayor Rudolph W. Giuliani and Joseph L. Bruno, the majority
leader of the State Senate. The officials, most of them Republicans, have tried to turn Mr.
Duckman into a symbol of what they contend is a judiciary that is too easy on criminals.
63
Last week, Mr. Pataki cited Judge Duckman in proposing a law that would allow
prosecutors to appeal sentences and bail amounts. The law would also stiffen penalties
for people who violate orders of protection.
Mr. Giuliani, a former Federal prosecutor, has repeatedly criticized Judge Duckman
over the case in Queens, in which the woman, Galina Komar, had received an order of
protection against her former boyfriend, Benito Oliver.
Mr. Oliver was jailed for violating the order and beating Ms. Komar. A few weeks
after Judge Duckman let him out of jail, Mr. Oliver shot and killed Ms. Komar, then
killed himself.
"The Governor has acted very prudently and very sensibly, and I support what he has
done," Mr. Giuliani said today. "It may very well be that Judge Duckman has a very fine
career ahead of him as a lawyer, as an advocate, in many other areas. But I think that he's
indicated that this area of judging is not one in which he has the balance that's necessary."
In calling for the judge's removal, the Governor also disclosed a new allegation
against Judge Duckman. Mr. Pataki said a prosecutor in the Bronx had reported in a 1992
letter to Mayor David N. Dinkins's judicial screening committee that the judge had made
disparaging remarks in an assault case in which both the defendant and the victim were
black women.
"At the risk of sounding racist and sexist," the judge reportedly said, the case "is
really just two women, and you know sometimes certain things are just cultural."
In an interview on Tuesday, Mr. Duckman, who is taking time off, declined to discuss
the death of Ms. Komar or his handling of another domestic violence case that has stirred
controversy.
In the second case, Judge Duckman allowed a Brooklyn man to go free just hours
after a jury found him guilty of attacking his former girlfriend. Earlier this month, the
man was arrested again and charged with assaulting the ex-girlfriend in her apartment in
Brooklyn.
But in the interview, Judge Duckman denied making comments in 1991 that, when
publicized last week, created another furor. Mr. Duckman reportedly told lawyers that he
had personal experience with domestic violence and then played down the importance of
the issue.
The State Senate has taken only four votes to remove judges, one in 1866 and the
other three in the 1870's, officials said. The only one to garner the two-thirds margin was
in 1872, when Justice John H. McCunn of New York City Superior Court was ousted on
corruption charges.
The Senate currently has 61 members -- 37 Republicans and 24 Democrats -- and a
two-thirds margin would be 41 votes.
Mr. Bruno, the Senate majority leader, who has asked that Judge Duckman be
reassigned, repeated his criticism of the judge today. But he also declined to say how he
would vote if Mr. Pataki sent the recommendation to him, maintaining a public stance of
impartiality.
64
Senator Martin Connor of Brooklyn, a Democrat who is minority leader, also would
not discuss his likely vote, saying that he had advised his members to keep an open mind.
But he said he believed that Mr. Pataki was trying to exploit the Duckman case to
improve his standing.
"I think that the Governor is trying to ride a political horse here," Mr. Connor said.
"That doesn't mean that there is not cause. I just don't know."
Mr. Pataki said the State Commission on Judicial Conduct had agreed to finish its
inquiry into the judge's performance within two months, even though its investigations
usually take about a year.
The 11-member panel oversees nearly all the local and state judges in New York and
removes about one or two of them each year, in addition to handing down less severe
penalties, such as censures.
Gerald Stern, the administrator for the commission, declined to comment on the
Duckman case. But last week, the commission's chairman, Henry T. Berger, seemed to
express doubt that the commission had jurisdiction in the case. He said the panel was not
set up to go over the outcome of judges' decisions.
The Governor appoints four members of the commission, the Legislature names four
and the state's chief judge appoints three.
The members, who include judges, lawyers and some with no legal training, serve
four-year terms. Mr. Pataki has so far filled only one seat, but he will be able to name
another person next month, though that appointee will not take part in the Duckman
inquiry because it will have already started, officials said.
GRAPHIC: Photos: "In my mind, based on the facts that I have, judge Duckman is unfit
to serve. We cannot have a judge who doesn't believe that domestic violence is a crime."
-- GOV. GEORGE E. PATAKI, speaking about judge Lorin Duckman, above.
(Associated Press)
65
Copyright ©1996 – 1997 by The New York Times Company, Reprinted by Permission
The New York Times
February 29, 1996, Thursday, Late Edition - Final
Section B; Page 7; Column 4; Metropolitan Desk
Judge Wasn't Alone in Failing Victim
By Joyce Purnick
It is now tragically apparent that Galina Komar, killed by a former boyfriend only
weeks after his release from jail, did not have to die. The system might have saved her.
But it faltered.
This is an effort to sort out what happened, and to filter out the political and media
spins that tend to color what the public learns.
The Judge
Most of the attention in this case has focused on Lorin Duckman, the Criminal Court
judge in Brooklyn who released the man who beat, threatened and ultimately murdered
Ms. Komar -- and then killed himself. Gov. George E. Pataki yesterday urged the State
Commission on Judicial Conduct to remove the judge.
Detractors say Judge Duckman should not have freed the defendant -- Benito Oliver - and was insensitive to Ms. Komar's plight.
The transcript of Mr. Oliver's bail hearings in late January strongly suggests that the
judge was in fact hostile to prosecutors. He repeatedly interrupted and lectured them and
asked questions that sound dismissive of Ms. Komar's injuries. She had been bruised but
suffered no "disfigurement," he noted.
He asked similar questions in another assault case last December. The defendant -Angelo Torres -- was said to have "hit the son with a belt several times across the leg,"
and hit both mother and son repeatedly. Judge Duckman kept asking for corroboration
and finally said: "So there is no injury. So, all you have basically is somebody slaps
somebody with a belt, pushes them into a wall." He released Mr. Torres pending trial.
The judge's questions may have reflected respect for the high standard state law sets
for judging personal injury. But disfigurement would be a felony, not relevant to the
misdemeanor charges against Mr. Oliver.
The Prosecution
Much of the judge's anger was directed at an ill-prepared prosecution. He berated one
assistant district attorney who could not document that Ms. Komar had been beaten. "You
don't have a picture," he complained. "You don't have a hospital record, and you don't
have an employee that corroborated any of the acts that you are talking about."
But judges rarely require such corroboration at a bail hearing, because it is not
required by law; the complainant's sworn statement is. "Judge Duckman is not entitled to
66
hold a victim of domestic violence to a higher standard than he holds other victims," said
Lisa Smith, Special Executive Assistant for Domestic Violence in the Brooklyn District
Attorney's office.
The assistant district attorney did not, however, argue that point in court. Nor did she
present a coherent, persuasive case about the threat that Mr. Oliver's release could -- and
did -- pose to Ms. Komar. Charles J. Hynes, the Brooklyn District Attorney, says he cares
deeply about domestic violence, and there is good reason to believe his commitment.
Why, then, does he have inexperienced assistants prosecuting these sensitive cases?
The Law
The judge did not need the facts he sought to keep Mr. Oliver in jail. New York does
not permit preventive detention, but Mr. Oliver was a convicted felon; if the judge saw a
risk of his fleeing he could have continued his high bail. Citing Mr. Oliver's
"constitutional rights" and the 40 days he had already spent in jail, however, the judge
freed him.
State law poses broader problems in cases of domestic violence. There is no state law
that specifically addresses stalking; harassment, if proved, is a misdemeanor at best. The
law does not firmly penalize anyone who violates a court order of protection unless they
seriously damage property or gravely injure a person. And it does not regard all bruises
and cuts as serious. Republican legislators want to stiffen the law, but so far the
Democrats resist.
The Press
The New York Post and The Daily News are waging a tabloid war over "junk
justice," and politicians, led by the Mayor and the Governor, are grabbing headlines by
complaining about judges. That is an easy thing to do, because judges rarely speak
publicly.
Facing calls for his impeachment, Mr. Duckman gave circumscribed interviews to
two columnists -- this writer and Jim Dwyer of The News. He denied The Post report that
he had once said he had beaten his wife, saying he had experienced domestic violence
only when his late wife pointed a knife at him 20 years ago. He would not discuss his
cases, but his lawyer used the occasion to focus The News's attention on his complaints
about the prosecutor's handling of the Oliver case.
Mostly, the news media have joined elected officials in blaming one person for a
systemwide meltdown. The judge failed. So did overburdened prosecutors, and the law
itself. That can mean only one thing. It will happen again, with or without a Judge
Duckman in Criminal Court. Get ready for the headlines.
67
Copyright ©1996 – 1997 by The New York Times Company, Reprinted by Permission
The New York Times
March 4, 1996, Monday, Late Edition - Final
Section B; Page 3; Column 5; Metropolitan Desk
Judge's Troubles Echo Throughout Courtrooms
By Joseph P. Fried
For weeks, the actions of Judge Lorin Duckman in New York City Criminal Court
have reverberated to City Hall and as far as Albany, with political leaders charging that
his handling of domestic violence cases indicates the judicial system is overly concerned
with the rights of defendants.
But it is in the city's courtrooms that the impact over the debate is being most closely
felt. Several defense lawyers say that since the outcry over Judge Duckman's rulings and
remarks in court, some judges are setting higher bail than usual in certain cases. Even
some judges are privately saying that they are watching their words on the bench more
carefully than before.
"I would be very careful not to say anything anecdotal in my personal life, to
humanize things," one Criminal Court judge said last week, speaking on condition that he
not be identified. He was apparently referring to remarks Judge Duckman is accused of
having made to a prosecutor and lawyer in 1991 that he himself had been involved in a
domestic violence incident.
Other judges and lawyers interviewed after Governor George E. Pataki called on
Wednesday for a state commission to remove Judge Duckman stressed that it was too
early to tell whether there would be the so-called "chilling" effect on judges that judicial
officials and defense lawyers have publicly worried about. But New York's Chief Judge,
Judith Kaye, said on Friday that she was concerned that the atmosphere of castigation
could subtly change the way judges decide cases.
In response to the controversy, representatives of bar associations in the city are to
meet tomorrow to form a committee to promote a judiciary that should be free to decide
cases without "intimidation," said Barry Kamins, a past president of the Brooklyn Bar
Association.
In long and introspective interviews in which they struggled to assess the impact of
Judge Duckman's situation on their own behavior in court, two Criminal Court judges,
who spoke on condition of anonymity, said they could not guarantee that his situation
would not affect their own actions in court, like setting bail or imposing sentences.
"I would like to look in the mirror and say it would not," one of them said. But he
added that the psychological dynamics were such that even he might not be able to
determine the impact of the controversy on his own decision-making.
68
"I think the effect is subconscious, subliminal," he said. "We are making hundreds of
these decisions a week, many are close calls, and nobody is ever criticized for keeping
too many people in jail."
And the other judge said, "I would not be prepared at this point to say that the present
climate of hostility to judges would not or could not affect my decisions, though I would
hope very hard it would not." But, he added: "If it did, would I admit it? That would be a
terrible thing to admit."
Governor Pataki's call for the State Commission on Judicial Conduct to remove Judge
Duckman from the bench -- and for the State Senate to do so if the commission did not -was the latest development in a drumbeat against the judge. He came under scrutiny
when a three-time felon, Benito Oliver, he had freed from jail over the opposition of
prosecutors shot and killed his former girlfriend, Galina Komar, on Feb. 12 and then
killed himself. Mr. Oliver had been arrested on charges of assaulting her and violating
court orders of protection she had obtained against him.
Mr. Pataki also cited other cases that he said showed a pattern of insensitivity by
Judge Duckman toward crime victims and a bias against prosecutors.
Some lawyers say there is evidence that the campaign against Judge Duckman has
begun affecting other judges -- at least their minds, and possibly their actions.
"I have asked judges who sit in criminal court who are personal friends of mine
whether it's had an effect on them and they said, 'absolutely,' " said Martin B. Adelman,
president of the New York Criminal Bar Association. "They're afraid that if something
goes wrong, they'll be crucified."
He said that none of the judges said that the controversy had caused them to rule in a
way they otherwise would not have.
"If they did, they wouldn't admit it to me," he said. "They may not even admit it to
themselves."
One Brooklyn lawyer, Joyce B. David, said a client of hers in a domestic violence
case had been subjected to much tougher bail conditions at his arraignment late last
month than he would have before Ms. Komar's slaying, something she insisted was "a
clear reaction to the Duckman situation."
She said her client, a homeowner and accountant in Brooklyn, had been charged with
a misdemeanor assault on his 12-year-old son in a case stemming from a dispute with his
former wife over visitation rights. Her client, she said, had no previous criminal record
and "there was no reason to believe he would flee," making him a good risk for release
without bail.
Despite this, she said, the Brooklyn District Attorney's office asked for $25,000 bail
and a Criminal Court judge set the alternative of a $10,000 bond involving collateral or
$5,000 cash. Ms. David held that before the Duckman controversy her client would have
been freed without having to post any bond or cash.
Patrick Clark, a spokesman for the District Attorney's office, only said, "With this
particular set of circumstances, it was an appropriate bail to request."
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Valerie Raine, the head of the Legal Aid Society's Brooklyn office, said there has
been a sense among her staff of lawyers that "bail is being set higher now" in cases
involving crimes like assault, as opposed to drug-related cases. But she added that she
was "not prepared to say" that this was a fallout from the furor over Judge Duckman.
But another lawyer, James J. DiPietro, who has been in private practice for 10 years,
said that since the furor arose, "I have been in courtrooms seeing some judges setting bail
that seems higher than normal, and one must draw the conclusion that the Duckman
situation has something to do with it."
He cited one proceeding, which he watched last week while waiting for a case of his
own in the Criminal Court in Brooklyn, in which he said a defendant was held on about
$7,500 bail on a charge of misdemeanor assault against his wife, who had not reported
any previous attack by her husband. Normally, Mr. DiPietro said, bail for such a
defendant would have been about $1,500.
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This article is reprinted with permission from the March 6, 1996 edition of New York
Law Journal. © 1996 NLP IP Company.
New York Law Journal
March 6, 1996, Wednesday
SECTION: Pg. 1
Transcript of 'Oliver' Bail Hearing At Center of Duckman Controversy
At the heart of the recent controversy surrounding Criminal Court Judge Lorin
Duckman is his conduct during three days of hearings on bail and continuation of a
protection order in a domestic violence case, People v. Benito Oliver.
Amid the calls for discipline or removal of Judge Duckman, snippets of the 66-page
hearing transcript have been used by both sides in the debate to support opposing views
about the conduct of the judge and of the Kings County District Attorney's office.
Following is the complete text of the hearing transcript:
Proceedings
THE REFEREE: Calendar seven and eight, Benito Oliver, 215.50, 110/120.00,
defendant incarcerated and produced before the Court.
MR. HALLOCK: Larry Hallock, 67 Wall Street, assigned counsel.
THE COURT: Good afternoon.
MS. FRIAS: Patria Frias for the People.
THE COURT: Mr. Hallock has asked for the opportunity to make a bail application.
I understand you have witnesses downstairs ready to proceed?
MS. FRIAS: That is not correct.
THE COURT: Are you ready for the hearing or trial today?
MS. FRIAS: Not today. It was put over until today for defense attorney to make a
bail application.
THE COURT: When will you be ready for a hearing and trial?
MS. FRIAS: Let me check the officer's availability.
We would probably need about a week or more than that, just to obtain the Rosario
material.
THE COURT: Ms. Frias, why should Mr. Oliver not be at liberty right now, on the
condition that he posts bail of $ 2,000? Because my understanding is that a bail of $
2,000 bail and then was re-arrested, based on a violation of an order of protection
resulting from telephone calls which he made from Rikers Island.
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MS. FRIAS: That's correct. I have also reached out to the complainant, just to
ascertain what it is, if there is something I may not be seeing between the complainant
and this defendant.
However, the People would like to reach out to the Court and inform the Court that
there are two, possibly three -- definitely three, possibly four -- cases between these
complainants and the defendant. The defendant repeatedly goes back to continue
harassing and hurting this woman. Not only her, but she has a child. They had to leave
running away from the defendant in the past, in the middle of the night, scared of what he
may do to her.
The People at this point would request that the defendant, that his bail status be
continued and we can work much quicker to go to trial, if that is the issue. But right now
I will just say that he has bench warranted in the past and I am not sure if his family is
prepared to put up the bail for this case, possibly knowing that he has made serious
threats to the complainant regarding her life.
Also, in the past she left her job and her place of residence upon a minute's notice,
trying to run away from that man, scared as to what he may do.
Also, since the last case, the second case, which is the violation of the order, your
Honor, I would like to just inform the Court that his family has reached out to her,
threatening her to the point where she reached out to our office, trying to see what she
can do, and all we can say is you have to deal with that.
She has had to file a complaint against the defendant's sister because she has called
her on more than one occasion.
On one occasion she was even at the precinct trying to resolve this problem with the
defendant, and since then she has reached out -- the defedant's sister has reached out to
the complainant and has threatened her life.
THE COURT: What has she said to her?
MS. FRIAS: To the complainant, on one occasion she called and initially she started
off by saying, look, help us move all this stuff out. She was, like, no problem.
Then the sister wanted the complainant to pay for the moving to, I think it is
Pennsylvania -- wherever the sister lives -- and the complainant can't afford that. Then
the defendant's sister demanded she drop the charges and that if she didn't do that her
uncle, his uncle, will deal with her and -THE COURT: That is hardly a threat to someone's life.
MS. FRIAS: She put it [in] words, she said, he may not kill you, because he is in
now, but his uncle will kill you. I felt that was a threat.
On another occasion -THE COURT: A threat of what?
MS. FRIAS: To her life, to the complainant's.
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THE COURT: I don't believe that a statement by somebody that somebody else might
do something to someone constitutes a threat -- by a person making a statement -- to the
person's life.
But you may have a different view of the law than I do.
MS. FRIAS: On another occasion the sister again called demanding that the
complainant drop the charges and that his family is a psycho, and that his sister will take
care of the complainant if she doesn't do what she knows she has to do.
THE COURT: The question is why should I not allow him to be at liberty and defend
himself if he posts a bail, the original bail that I thought was appropriate in the case,
which he was prepared to post? Why should he still be in jail on these cases in light of
the fact that, one, he wants to go to Pennsylvania and stay away from her and, two, there
is no mandatory imprisonment in this case. Three, he has already been held for a period
of time, which could be the maximum imprisonment that he gets, assuming that he is
convicted. The majority of these cases take place back at the end of November, the
beginning of December.
There is allegedly a knife used in one, he throws her into a wall, hits her, and then
calls up on the telephone.
MS. FRIAS: The incident occurred on 12/15.
THE COURT: There is an incident that starts in November, isn't there?
MS. FRIAS: There are several TOP's [temporary orders of protection], so it is an
ongoing.
THE COURT: There is no actual physical injury, is there, other than some bruising?
I am not suggesting that bruising is nice, but there is no disfigurement. There are not
broken bones. There are no serious physical injury charges, are there?
MS. FRIAS: My information is that at the first time and place of occurrence the
defendant went to the complainant's job and grabbed her and forced her out of her
employment. If not, he would make a scene. She was forced to leave. He grabbed her
by the arm, forced her back home. Once they were there -THE COURT: Just respond to the injury part of it -MS. FRIAS: Let me get to that right now. He used a butcher knife. As a result of his
using the butcher knife, putting it to her throat, she gets marks on her neck, redness. He
did slap her around, causing swelling to the face, a bump on the head. That was at one
occurrence, Nov. 27.
Then on Dec. 9 the defendant made sexual advances to the complainant and she
doesn't want to and he slaps her in the face repeatedly, slams her against the wall, pushes
her and then again brings out the knife, puts it to her throat.
This results in a black and blue to the forehead, bruises to the arms and body, busted
lip and bumps to the head.
THE COURT: Is this documented? Is this documented anywhere?
MS. FRIAS: By her.
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THE COURT: Is it documented by a report to the police to promptly respond and
take her to the hospital?
MS. FRIAS: It is documented with the complaint. That is the basis.
THE COURT: Is it documented by a police officer who sees her, who takes her to the
hospital for treatment?
MS. FRIAS: Let me check if there was any medical attention on this case. There was
no medical attention on those cases.
THE COURT: Were they promptly reported to the police?
MS. FRIAS: Yes.
THE COURT: Did anyone see her when the complaints were made or were they
merely telephone calls?
MS. FRIAS: What we have on the first TPO, people at her job did see him get there
and take her by the arm.
THE COURT: Then there is a third TPO, right?
MS. FRIAS: Right. On the third TPO, which is Dec. 15, your Honor, this started in
the evening of the 14th and went through to about four in the morning of the 15th. On
that occasion there was an argument where defendant slapped the complainant on the
face several times, again, grabs the throat, throws her against the wall, throwing things,
appliances, and things like that, on the floor. Again, a butcher knife, puts it to her throat
and threatens to kill her, to use it with her.
THE COURT: Again, was she treated in connection with that?
MS. FRIAS: No, your Honor. All I have is an indication that she had lacerations to
the throat from the knife, redness, bruising.
THE COURT: Is there any corroboration of that, any medical treatment?
MS. FRIAS: We are currently trying to obtain -THE COURT: As of now, almost a month and a week later you don't have any
corroborating affidavit of that; is that right?
MS. FRIAS: Other than her testimony. We will have officers who saw her on that
day, on the day of the arrest.
THE COURT: Have you spoken to them?
MS. FRIAS: I personally have not. I will.
THE COURT: Mr. Hallock, do you want me to keep him in?
MS. FRIAS: I am not the assigned Assistant.
THE COURT: Do you want me to keep him in?
MR. HALLOCK: Just in regard to -- I was going to start out differently, but I just
want to start out with something that really upset me that the D.A. said.
74
There was no immediate response here, no immediate call out to the Nov. 27 incident
and the Dec. 9 incident at all.
The other thing is that this supposedly started at her job. If you read the TPO, it says
11:30 a.m. and 3 a.m. My understanding is she works 9 to 5 at a Volkswagen dealership.
He dragged her home. But the other problem is, Judge, they don't live together. This is
my client's apartment, where each one of these happens, 2545 East Sixth Street. It is his
apartment. She does not live there.
So each one of these incidents happens at my client's apartment where he keeps,
supposedly, dragging her and she somehow goes home, and even on the last incident on
Dec. 14 this happened at 9 p.m. on Dec. 14. My client that night drove her home, got up
the next day to go to work, and as he walks out the door the police arrest him.
THE COURT: I remember the argument.
MR. HALLOCK: So that's approximately 15 hours later. There are no medical
reports on any of these incidents. There is nothing.
As a matter of fact, I spoke to the people at her job and asked, did you ever see her
with any bruises on her face, on her arms, anywhere. They told me, no. This is at the
Volkswagen dealership in Queens.
The other thing is, Judge, what happened in this case -THE COURT: You don't have to go into the facts. I want to set up some bail
situation so he is out.
MR. HALLOCK: Originally they set bail at $ 1,000 and then the District Attorney's
office came in and said, Judge, this defendant is threatening the complaining witness
from jail. I said to you he is not threatening her. All he wants is his dog back, and I told
you that.
If you read the new complaint, and I have the data analysis sheet from the District
Attorney -THE COURT: Can I have it, please?
MR. HALLOCK: It says defendant called complainant numerous times from the
detention in violation of the order of protection. The defendant accused the complaining
witness of entering defendant's home without his permission.
Remember, they don't live together. She doesn't even have keys. She went to the
landlord to get the dog out, without the defendant's permission, even through the
defendant had asked the complaining witness to get the dog out of the apartment.
Now, supposedly he called her earlier to ask her to get the dog. Let's see the records
from the jail situation showing that he called earlier to get the dog out. There are none.
Then he said, the defendant said, you better have that dog ready or else. That's the
threat he supposedly made, which is essentially what I told your Honor. He has been
asking for the dog back. it is a prize-winning dog. It is his pride and joy. That is his
thing, his dog, and his sister has been calling her to get the dog back.
75
The lady, the woman wouldn't give him the dog back. That is what this is all about
right now. That is why the family keeps calling her.
THE COURT: Tell me about the dog. Tell me about the bail package. They raised
bail to $ 5,000?
MR. HALLOCK: What happened was he made $ 2,000 bail. Bail is posted on Dec.
27. As he walks out of the Brooklyn House the District Attorney's office re-arrested him
on that complaint that I just told you.
As he makes that bail he gets put back in front of the Criminal Court judge and the
judge sets $ 1,500 bail on this case. Upon going back to AP-5, being returned on a
warrant that was issued while he was going through Central Booking, because if you look
at the court papers, on Dec. 28 they issued a warrant saying the defendant made bail. He
made bail but he was arrested as he was walking out of the door. So, he didn't really
make bail. He never got out of this case.
At that point the judge raises his bail on this case to $ 5,000 and sets bail on his other
case at $ 1,500.
THE COURT: Where is the $ 2,000?
MR. HALLOCK: Looking through the court papers, first [it] was forfeited on the
28th. Then he was returned on a warrant and then it was exonerated. But there is no
exoneration in that paper. The clerks haven't filed out any forfeiture on any exoneration.
As of now, that $ 2,000 is still against this case. he is still being held in on his $ 2,000.
THE COURT: Do you have the bail receipt?
MR. HALLOCK: No, his aunt has the bail receipt.
THE COURT COURT: When can you get the aunt in?
MR. HALLOCK: Could I try and get her in today or possibly tomorrow?
THE COURT: Ask him.
THE DEFENDANT: I can.
THE COURT: Second call. See if you can get her here this afternoon.
Ms. Frias, what is this business with the dog?
MS. FRIAS: Yes, your Honor. I was able to obtain the phone calls that he was
making. It wasn't just one call, it was three calls. The situation -THE COURT: He has been in jail enough for a person who is charged with these
crimes. I want to know about the dog.
MS. FRIAS: The situation with the dog is the following. It is his prize dog. If
something as simple as a dog can irritate him where he is threatening the complainant
over the phone, then I am really worried about what he can do if he get out.
In this situation he called three times to her place. He contacted her to go to his house
to get the dog.
THE COURT: Can we get the dog back to somebody in his family?
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MS. FRIAS: Yes. The complainant told him, get your family to get your dog. But he
demanded the dog. Luckily, she didn't go as per his instructions to take the animal to the
ASPCA. She has had somebody baby sitting the dog in a very good home. The dog is
fine.
THE COURT: I want to know where the dog is and I want the dog returned to him.
MS. FRIAS: She can do that.
THE COURT: Is it her dog?
MS. FRIAS: No.
THE COURT: Then the dog is going to be released to him and that will assure further
that there is not any problem. I want you to call her up and find out where the dog is.
You will make arrangements to have the dog exchanged. You are going to get his aunt in
here with the bail.
Second call for this afternoon. I want you to call her up and find out where the dog
is. You will make arrangements to have the dog exchanged.
You are going to get his aunt in here with the bail. Second call for this afternoon.
We'll work out a package to get him out and to have bail set to assure his release.
Then we will recall the case on Friday after he gets out and we will get witnesses and
police officers and hospital records and straighten out when we are going to go to trial on
this.
You find the dog. I want the arrangements made to get this dog back in his custody
and I want to find out what happened with the $ 2,000. When we get such documentation
for the clerk to certify on the green card there is money there, I will reduce the $ 5,000 to
the $ 2,000 and he can get out.
MS. FRIAS: I would like a TOP [temporary order of protection].
THE COURT: Absolutely. We will adjourn it for two days to make sure there is no
contact between him and this woman for the next two days, and I will bring him back
here every day under intensive supervision. I just don't want him in custody, and I assure
you my analysis of the case is that this case doesn't warrant him staying in jail without an
opportunity for a trial, and that the $ 2,000 will insure his return, and the return of the dog
to him or to his family, will assure there is no further violence in this case. Let us get to
work. We have a lot of work to do with this case today.
(Whereupon, other matters were called on the Jury 3 calendar.)
THE REFEREE: Calendar seven and eight, Oliver Benito.
MR. HALLOCK: Larry Hallock, 67 Wall Street, for the defendant, assigned counsel.
Ms. Frias: Patria Frias, office of the District Attorney.
THE COURT: Have you located the dog?
MS. FRIAS: We have located the dog.
THE COURT: Is there going to be any problem putting the dog back in the
possession of Mr. Oliver?
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MS. FRIAS: Currently I will leave it up to the court to determine some kind of
arrangement, but I would like to be heard briefly on what has happened with the dog
since the defendant has been there.
THE COURT: Okay.
MS. FRIAS: It was only at the request of the defendant, even after the defendant was
told not to call the complainant, I reached out to the complainant to take his dog and he
did so approximately three times.
Once she did that and she, instead of taking the dog to the ASPCA as the defendant
wanted, she felt that it would be better if she could find a home for it so she did that, and
we do know where the dog is, and at this time I don't feel comfortable in giving his
information, but I can tell the judge and the judge can determine how you would like to
make the arrangements, but the dog is alive and safe, even though the complainant -rather, the defendant, and his sister did instruct the complainant -- rather, the defendant,
and his sister did instruct the complainant to just take him out of the apartment, take him
to the ASPCA.
THE COURT: Is there a way we can get members of the family to go to an address
where the dog is presently being held, to take the dog back into custody?
MS. FRIAS: I am sure that can be arranged.
THE COURT: That is what we will do. I don't need the address. Work it out with
Mr. Hallock. He will find a member of Mr. Oliver's family to go make the exchange at
some safe place. It could be the District Attorney's office, if you bring in the dog to here,
tomorrow morning.
We could pick up the dog in front of the District Attorney's office. You can have the
person bring the dog here, have the dog put in the hands of the detective-investigator and
Mr. Hallock could have a member of Mr. Oliver's family come and get the dog.
MS. FRIAS: Also, I understand that currently the concern is the dog and the dog is in
fine hands, I assure you.
THE COURT: I want to tell you what my feeling about the dog was. My feeling was
if one of the reasons that there was an animus between Mr. Oliver and Ms. Komar was
the dog, that by getting the dog back to Mr. Oliver that would eliminate one of the
problems we have had and do a great deal towards assuring the safety of Ms. Komar, as
well as putting the dog back into the hands of somebody who can actually care for the
dog, because I didn't want anything to happen to the dog either, while this case is being
resolved. That is my concern.
MS. FRIAS: Understanding that, I would like to point out that having the dog not be
an issue, the prior history involving these people has shown me what a danger this man is
to this complainant.
He has proven this, not only n these two cases, but on prior cases and just his violent
tendencies have me and the ADA's office quite worried.
THE COURT: You went me to keep him in jail. I heard your application and I look
at the situation differently, and I would like him to be released while we are resolving
78
this, because I don't think it is appropriate that while we are determining the guilt or nonguilt of the defendant that he should be incarcerated.
I don't know whether he is guilty. I don't know if he is not guilty. I know what my
responsibilities are and I am going to do what I can do to help him get out and maintain
the safety of the complainant.
I'm going to tell him what I expect of him from this day forward. I don't want to hear
anything more about that. You can ask me to increase the bail, which you did last time. I
denied it. I know you don't want me to make a decision, but when I finally set bail I will
give you an opportunity to be heard again.
MS. FRIAS: I am saying this, your Honor. This defendant was arraigned and he has
been -THE COURT: I don't want to hear anything further, if you are volunteering
something -MS. FRIAS: I am not even talking about the bail.
THE COURT: I don't want to hear about the case. I want to hear from Mr. Hallock
and I am coming back to you.
MR. HALLOCK: In regards to getting in touch with his family and getting his bail
set, I called the house on four different occasions when we first left here and as recently
as 10 minutes ago.
THE COURT: Is that a person you have been speaking with?
MR. HALLOCK: I spoke to her originally about posting the bail and where to go to
post it and that is how he originally got his bail posted.
My understanding is there are $ 2,000 posted on 95K092520 and there is no bail
posted on the other docket.
THE COURT: Can we verify that? What computer did you use?
MR. HALLOCK: I was downstairs in the clerk's office.
Also, I have a name, but it wasn't in there before. It is a Captain Jaworsky, which is
the officer that released him to the District Attorney's office, who works in the Brooklyn
House of Corrections, and he also knows the defendant made bail. When I was unable to
get in touch with [her], I tried to call him, too. I'm not sure he will be there now.
THE COURT: Put him back in. Check the computer.
MS. FRIAS: I just -THE COURT: I hope you are not going to repeat any more of the facts. I don't want
to hear about his prior record. I don't want to hear about his prior acts of violence. I
don't want to hear about the relationship between them. Is there something I haven't
heard before? Is there anything I haven't heard before?
MR. FRIAS: I just want to understand if we are here on a bail hearing why exactly
are we releasing him? There haven't been any changed circumstances for bail to be
reheard.
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THE COURT: Thank you.
Take him in the back.
Is there any more information, Mr. Hallock, from anybody in the family?
MR. HALLOCK: Yes, Judge. I believe that the clerk has a bail receipt.
THE COURT: I have got it.
MR. HALLOCK: I called this house again on the break. There was still nobody
there. However, there is proof they did put up $ 2,000. I would ask your Honor -apparently what has to happen for him is you have to reset, reinstate that $ 2,000 bail and
perhaps ROR [release on his own recognizance] him or set a dollar bail on the other one,
although I think the dollar will act as a hold until he pays that.
THE COURT: Okay.
Now, Ms. Frias, we have found out there is a way we can do this. You tell me why
you think, first of all, I don't have the power and where it says I need a changed
circumstance. I don't need a changed circumstance. But tell me why you think I don't
have the power to change the bail based on the argument that Mr. Hallock made.
MS. FRIAS: You are the judge. You have the power to do what you want to do.
All I can say is that the defendant was arraigned. $ 1,500 was set on the new case.
usually they look at the circumstances. We have no changed circumstances and that $
1,500 was before we even had an information. We now have an information.
I did show you some generated phone records from this case.
THE COURT: The information that you have is information we discussed this
morning concerning the statements that were made by members of Mr. Oliver's family.
You did not provide me with any proof that Mr. Oliver was responsible for that, which is
a legal argument that would be required to introduce that into evidence, if we are trying
to show consciousness of guilt.
There is no way we could attribute it to him directly, other than to say it was stated
through family members who were upset.
In exchanging the dog we eliminate one of the problems that may well be causing
members of the family to make whatever statements they make or may have caused three
telephone calls that Mr. Oliver made.
In addition, $ 2,000 is, as far as I am concerned, sufficient surety to hold him, not
only for the prior case, but for this case. he has also been in jail for a considerable period
of time. There has been no finding of guilt.
What we are going to do -- the third thing the case was on for today, in addition to
finding out about the dog and the money that was already posted, was for you to tell me
when we were going to be ready to take some testimony in this case, and if you are going
to be ready next week we will put the case on for the next week after the dog is
exchanged and if I find out that there has been any violation of the order of protection
then I will reentertain your application to set bail.
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Now, when you were in front of me in AP-5 the day we discussed whether or not I
was going to lower the bail on Docket Number 95K092520 you asked me to raise the
bail, based on the allegation that you had that there was a subsequent act by him that
constituted a violation.
After hearing all of the facts on that I ruled. I found, in my opinion, that there should
not be a raising of the bail and, even knowing about these telephone calls and knowing
that you could confirm them, although not confirm the substance -- I thought that the bail
was appropriate. So I have already ruled n this whole thing.
Then another Judge picked up this case, Judge [Karen B.] Yellen, and she picked up
this case in Arraignments on or about the end of December, and while I am not going to
say she didn't act in a way that was fair or just or relying on the law, I would say that the
bail that was set by her in this additional case was high and it may have been influenced
by an incident that happened the very week before where she was criticized in connection
with a domestic violence case for having released somebody in sever articles in the
newspaper and on the radio.
So, while I am not saying she did anything that was wrong, I do not believe she
completely evaluated the facts, and I am not sure that if the same application were made
to her today after the defendant has been n jail for a month it would still be the same.
Besides, my decision earlier than that, when I knew all the facts and I heard all the
arguments, was that bail should not be raised, but today I think he should be out.
For those reasons, unless you have something else to add -MS. FRIAS: Just briefly, your Honor, regarding -- you mentioned the case, how we
are going to go forward, and when we can go to trial.
We can have a hearing on the older case and I believe the new case there are hearings
to be had, but we can be ready for the hearing and also I would like to orally consolidate
the docket, since they're just -THE COURT: We are not going to have any oral consolidation. If you discuss with
Mr. Hallock that he is not going to have any objection to them being consolidated, then
you can redraft the accusatory instrument with the one prosecutor information.
You can discuss this with Ms. Frias. If you have a problem we can work that out. Do
you a have a problem with it right now?
MR. HALLOCK: No, Judge, because I think that the facts are very interwoven and
that would bring up the facts of the second case.
THE COURT: So just draw up a new accusatory instrument that contains all of the
charges, one accusatory instrument. Talk to the clerk as to what docket number will
survive and then you have to show it to Mr. Hallock to see if he has any objection to the
new accusatory instrument, and then we will arraign the defendant on the new accusatory
instrument and during the pendency of that proceeding, until we file and arraign the
defendant, all the time will be excludable.
Is that okay, Mr. Hallock?
MR. HALLOCK: Yes.
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THE COURT: In any event, I still want to put the case on for the next week to make
sure the safety of the complainant has been assured, as well as to make sure that all of
this discovery material has been exchanged, that there have been the investigations done
with respect to when the complainants were filed, whether any medical treatment was
obtained, whether there were any photographs, and I would like you to, although I can't
compel you go, go to the place of business and to speak to the people that Mr. Hallock
spoke to who said she did not, that Ms. Komar did not bear any bruises or marks or
scrapes or cuts -- or maybe she did. But Mr. Hallock seems to have some information
that people saw her and she didn't appear injured.
In addition, there was information that was put forth that the woman works from the
morning and that the allegation is that she was dragged from her place of business at a
time other than when she could have been expected at work. I don't know whether that is
true or not. But you may have a problem with respect to your bill of particulars that has
to be worked out.
Again, that is what we are going to do next week when I bring him back.
Do you have anything else to say?
MS. FRIAS: I would like the order of protection to be extended.
THE COURT: I will extend the order of protection. Let me deal with the bail. Here
is what we are doing. Before me is a bail receipt for a person posting bail in connection
with Docket Number 652440, in connection with this case, and that was issued in
connection with Docket 95K0092520. Bail in this case was originally set on 12/16 at $
3,500. That is when the case was a felony. When the case was reduced from a felony to
a misdemeanor Judge [Jerome M.] Kay reduced the bail to $ 2,000, and the case went to
AP-5. That was on 12/21.
The case was adjourned from 12/21 to 12/28, same bail conditions, after I denied a
request by the People to raise bail, when we heard that there were additional allegations
to be filed based on some telephone calls that the defendant made from Rikers Island.
On 12/28 bail was still the same and the defendant had not been produced. The
accusatory instrument was superseded and the case was adjourned to the 29th. On the
29th a warrant was ordered. Unbeknownst to us someone had posted bail on the 27th and
as the defendant was leaving the Brooklyn House, he was re-arrested and brought back
into court and bail was raised on the docket number ending 520 on Jan. 2 to $ 2,500 over
$ 5,000, an act which we think as a matter of law may well have led to an exoneration of
the bail.
So to that extent I am vacating the exoneration of the bail and I am reinstating the bail
posted in the amount of $ 2,000 on 12/27, nunc pro tunc, to that date, 12/27.
At this time the defendant officially has bail continued and he is free.
With respect to Docket Number 95K094450 he is paroled, ROR. There is an order of
protection on both of the cases at the present time.
Would you like two orders of protection to continue or one order of protection?
MS. FRIAS: The order of protection continued --
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THE COURT: There is one order of protection in the name of three people.
MS. FRIAS: That is good.
THE COURT: It says Galina Komar, Tatiana Komar and Syakami Sanbi (phonetic),
somebody else.
But anyway, since we are going to have some consolidated docket, I am extending the
OP [order of protection] on the docket ending 250, since that seems to cover everybody.
MS. FRIAS: Which docket are you RORing him on?
THE COURT: On the new one.
MS. FRIAS: 4650.
THE COURT: Yes.
MS. FRIAS: I have reinstated bail of $ 2,000. We are extending the OP.
THE COURT: There is a motion to consolidate. You may just have some objections
to the consolidated instrument. You will hear whether or not there is any objection to the
count or form. You can take those up. The time will be excluded between now and next
week. Give me a date next week. I will adjourn the case for tomorrow if you want to
bring in the dog tomorrow.
MS. FRIAS: I would like to be heard on the dog issue.
I don't feel comfortable having our DI's [detective-investigators] involved in his.
THE COURT: Have the person bring the dog.
MS. FRIAS: Maybe we can have the dog taken to a precinct. I don't think DI's should
be involved in transporting him.
THE COURT: I don't care where it goes as long as it happens. I will put the case
down for Friday till we can find out what has happened between today and Friday. Make
sure that there is no problem. When do you think is the soonest this can happen, because
he is getting out this afternoon?
MS. FRIAS: I can reach out to the complainant and speak to the person caring for the
dog and loving it. My concern is, who is going to take the dog to the precinct.
THE COURT: Here is what I will do. I will adjourn the case for tomorrow. We will
discuss it further tomorrow, and Mr. Oliver will come back with a member of his family
who is available to get the animal. You tell me where you want the dog brought, and by
whom, and we will agree to produce somebody there. He is that? is that okay?
MR. HALLOCK: That is fine.
THE COURT: Do you want me to put it on for tomorrow?
MR. FRIAS: Okay.
THE COURT: Please stand up.
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We will adjourn the case for tomorrow. I want you back here tomorrow morning.
There is an order of protection that is involved. I don't want you to call anyone
connected with Ms. Komar or her family. Do you understand that?
THE DEFENDANT: Yes, I do, your Honor.
THE COURT: Don't have any member of your family contact her or call her. Do you
understand that?
THE DEFENDANT: Yes, I do.
(Whereupon, a discussion was held off the record.)
THE COURT: On Docket 95K094650, the defendant is paroled.
JAN. 25, 1996
THE REFEREE: Jury 3, calendar number five and six, Benito Oliver, 215.50,
110/120.00.
MR. HALLOCK: Larry Hallock, 67 Wall Street, New York, N.Y., for the defendant
Benito Oliver.
MS. FRIAS: Patria Frias, office of Charles J. Hynes.
THE COURT: Please bring me up to date.
MS. FRIAS: Since yesterday, as per instructions, I contacted the complainant. She
assured me the dog was well, so I said, we have to make arrangements to get it to the
defendant, as asked for by the judge. She did make arrangements. The dog has been
sitting at the 114th Precinct since 9:30 last night and I just spoke to an officer there just
now who told me that the dog is being held there me that the dog is being held there and
wants the dog out of there by 3:30 this afternoon. Anybody from the defendant's family
may go and ask for Officer Anzalone. Once he does that the dog will be the defendant's,
or in the defendant's family's possession.
THE COURT: Have you had any contact with Ms. Komar?
MS. FRIAS: My last contact with the complaining witness was last night.
THE COURT: I would appreciate it if you would call Ms. Komar. I want to make
sure there has not been any contact made by Mr. Oliver to Ms. Komar.
MS. FRIAS: I called her this morning. I haven't been able to reach her. She is
unavailable at this time.
THE COURT: This case will be adjourned until tomorrow. We will take up the
matter of discovery, the matter of the order of protection, and the matter of when we are
going to adjourn the case to, and I want to know that the dog is safe and back in the
possession of Mr. Oliver, and the faster we can get him out of here, the better.
The orders of protection are extended. Defendant's present bail is continued. On one
of the dockets the parole is continued. On the second docket let us get him out of here as
quickly as possible.
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MS. FRIAS: Your Honor, the dockets are bing consolidated. At what point are we
going to just use one docket?
THE COURT: As soon as you file an accusatory instrument that you are prepared to
go to trial on, we will consolidate the dockets and it will be under one docket, and then
we will deal with that.
Let us get Mr. Oliver out of here. The time will be excludable, on your consent, Mr.
Hallock.
MR. HALLOCK: Yes.
MS. FRIAS: And the order of protection is to include no phone calls?
THE COURT: The same way it has been issued in the past.
I think Mr. Oliver knows that I do not want any kind of contact between him and this
person. If you want to come in tomorrow and file it, I will consolidate it tomorrow.
Good luck. See you tomorrow morning.
THE DEFENDANT: Thank you, your Honor.
JAN. 26, 1996
THE REFEREE: Calendar number eight and ten, Benito Oliver, defendant charged
with 110/120.00, 215.50.
MR. FRIAS: Patria Frias for the people.
Good morning, your Honor.
MR. HALLOCK: Larry Hallock, 67 Wall Street, New York, N.Y., for the defendant.
THE COURT: Good morning, Ms. Frias.
MS. FRIAS: Today I would like to serve and file the prosecutor's information.
THE COURT: Serve a copy on Mr. Hallock.
MS. FRIAS: So served.
THE COURT: Mr. Hallock, I will give you an opportunity to look at this. It has Ms.
Frias' signature on it. She is going to redo the last page because it is supposed to be
signed by Mr. Hynes by Ms. Frias, but that is okay. We wont' hold that to be a
jurisdictional defect at this time. Will we, Mr. Hallock?
MR. HALLOCK: No, I won't, but, Judge, I haven't examined this yet. I am reading
count one. It is attempted assault in the second degree. My understanding is that is an E
felony.
THE COURT: It is.
MR. HALLOCK: I don't think they can make out a prosecutor's information with an
E felony.
THE COURT: That is correct.
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MR. HALLOCK: At least, I am not going to allow them to proceed with a
prosecutor's information with an E felony.
THE COURT: You can run it through the word processor and fix it. But, I would
prefer to wait for the next time to be arraigned on this, or would you like to be arraigned?
We can change it to attempted assault in the third degree. How is that?
MR. HALLOCK: That is okay. I think there is the same problem with count five.
THE COURT: Attempted assault in the second degree. That would have to be
changed. Actually, do you want to know something? It is assault in the third degree.
MR. HALLOCK: This is the following count to assault in the third degree.
MR. HALLOCK: This is the following count to assault in the third degree.
THE COURT: Relating to the same charge, right.
MR. HALLOCK: Yes, it is the exact same charge.
THE COURT: It seems as if you have to dismiss count one and dismiss count five.
MR. HALLOCK: And count 10, an assault in the second degree, which is an E
felony.
THE COURT: That is correct.
Okay, Ms. Frias, did you want to dismiss these counts now?
MS. FRIAS: People move to dismiss the felonies, including attempted assault in the
second degree, count one.
THE COURT: Count two will be numbered count one. Count three will be
renumbered count two. Count four will be renumbered count three.
Count five is dismissed.
Count six will be renumbered count four. Count seven will be renumbered count
five. Count eight will be renumbered count six. Count nine will be renumbered count
seven. Count 10 is dismissed.
MS. FRIAS: That is correct, your Honor.
THE COURT: Count 11 is renumbered count eight. Count 12 is renumbered count
nine. Count 13 is renumbered count 10. Count 14 is renumbered count 11. Count 15 is
renumbered count 12.
You are making a representation and you are authorized to file this information.
Waive reading of the rights and charges, not the rights thereunder, Mr. Hallock?
MR. HALLOCK: Yes, Judge.
THE COURT: Your client offers to plead not guilty?
MR. HALLOCK: That's correct.
THE COURT: Now, with respect to discovery, has any discovery been filed?
MS. FRIAS: We have thus far served and filed on both dockets open file discovery.
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MR. HALLOCK: I acknowledge receipt of the open file discovery on both cases,
Judge.
MS. FRIAS: With the understanding that any additional Rosario material would be
immediately turned over. I haven't received a copy of a valid order of protection in
regard to some dockets here, some counts in the new prosecutor's information,
specifically 10, 11 and 12.
At this time the People would like to serve to defense counsel the underlying violated
order of protection to sustain the enumerated counts.
THE COURT: Okay. With the filing of the order of protection -MS. FRIAS: We served it, your Honor. I don't have a copy right now.
THE COURT: Serving the order of protection, it appears that the accusatory
information is sufficient on its face.
Docket Number 95K094650 is dismissed as having become consolidated into Docket
95K092520.
MR. FRIAS: So noted.
THE COURT: Okay. Now, do we have a date for trial?
Mr. Hallock, are you ready?
MR. HALLOCK: Judge, I could start a trial today. The problem is I am going away
from the 14th through the 26th of this month.
THE COURT: I don't think we will be finished with that trial. Let us work out a date.
MS. FRIAS: Defense counsel and I did talk of Feb. 28.
THE COURT: I will put it down for Feb. 28.
MR. HALLOCK: I just want to inform the Court of what is happening.
THE COURT: Start off by telling us where the dog is.
MR. HALLOCK: Yesterday, Judge, my client went to the 114th Precinct in Queens
and retrieved the dog. It was very interesting. One of the police officers tell in love with
the dog and wanted to know if the defendant would be willing to give it to him and his
kinds. The police officer also bought the dog toys and food that he brought from home,
so the dog is in good shape. He actually groomed the dog, too, and brushed the dog all
out. So the dog is fine.
THE COURT: The dog is healthy?
MR. HALLOCK: Yes.
My client received a call yesterday from his sister who lives in Pennsylvania, Zaida
Martinez. This is the same person the D.A. is telling you was threatening Ms. Komar, the
complaining witness. She received a call from her informing her if Mr. Oliver does not
take a plea for one year today in court she guaranteed that he would be back in jail before
the end of the weekend, which leads me to raise a concern with your Honor, because my
client then informed the police that he would be staying at his aunt's house all night and
87
he stayed at his aunt's house all night, because he wants to make sure has somebody who
could say he was home and didn't do anything.
The police said to him, if I call you the rest of the night, you will be there? He said,
yes.
He was afraid to go back to his apartment because of the fact that he lives alone and
he doesn't want to be without anybody who would be an alibi, or at least somebody to
verify where he is.
Now, the complaining witness in this case, Judge -- I don't know, she may be mad,
may be upset.
THE COURT: Let us not speculate. I am prepared to hear from Ms. Frias or to take
an adjournment for a couple of moments. I there anything additional?
MR. HALLOCK; My only concern and reason I am telling your Honor this is
because I want the court to be aware this is becoming very vindictive at this point.
THE COURT: I don't want you to go that far, but we are going to find out what the
story is. Have a seat.
MS. FRIAS: Your Honor, the People resent -THE COURT: You don't resent anything.
MS. FRIAS: The People object -THE COURT: Excuse me, I don't want you to just start talking for no reason. I don't
want you to get defensive. What I would like you to do right now is call the complaining
witness and find out whether or not this telephone call was made.
MS. FRIAS: Which telephone call, your Honor?
THE COURT: Whether or not Ms. Komar called Mr. Oliver's sister in Pennsylvania
last night. The case is adjourned for you to find out. When you come back here I will
entertain an application as to whether or not to extend the order of protection. Thank
you, Mr. Frias.
MS. FRIAS: I just want to understand, your Honor.
THE COURT: Ms. Frias -MS. FRIAS: I didn't understand what the defense attorney's allegations were, so that I
can tell the complainant.
THE COURT: Call the complainant and have a conversation with Mr. Hallock. I
want to know whether or not Ms. Komar called Mr. Oliver's sister. That is what I want to
know. That is what the adjournment is for. Give me a yes or a no as soon as possible.
Call us back.
(Whereupon, other matters were called.)
THE REFEREE: Recalling calendar number eight and 10, Benito Oliver.
THE COURT: Have you contacted Ms. Komar?
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MS. FRIAS: Yes, I did, your Honor. My information is that the complainant has not
made nay phone calls to the defendant's sister.
THE COURT: Has not made.
MS. FRIAS: Ha not made any such call. She worked last last night and she tells me,
no, he did not make any such phone calls.
THE COURT: Well, I suggest that somebody out to order the phone records to find
out whether this is true. I do not, in the absence of Mr. Oliver going to the area that Ms.
Komar was in, I do not want him arrested until you can prove that he made a telephone
call. I am going to issue an order of protection that is limited. I will hear you right now
as to what you want me to do. I am sure you want a full order of protection, but I am
going to, based on what Mr. Hallock said, and the information I have from him, I am not
issuing a full order of protection and having him arrested again.
MS. FRIAS: Your Honor, the defense counsel, Mr. Hallock, has made some serious
allegations against the complainant.
THE COURT: You have made some serious allegations against Mr. Oliver.
MS. FRIAS: Our allegations have been corroborated.
THE COURT: No, they haven't. You don't have a picture. You don't have a hospital
record and you don't have an employee that corroborated any of the acts that you are
talking about.
In addition, you have an act where after there was an alleged act of violence against
this lady by Mr. Oliver, she voluntarily does to his apartment, is driven home by him, and
the net morning he is arrested. So, let us say that the presumption of innocence still
applies and you have not fully investigated the case.
So that the allegations, from my standpoint, go both ways.
MS. FRIAS: My information is she did not go voluntarily to his apartment, but that is
an issue for trial. Currently, in light of wanting to issue a limited, as opposed to a full, in
light of Mr. Hallock's information, I would suggest to the court that if we can put it over
for a date before Mr. Hallock goes on vacation, so he can produce the proof that the
phone calls were made -THE COURT: You can produce the proof. You can subpoena the phone records.
You have an interest, not only in protecting the rights of your alleged victim, Ms. Frias,
but to make sure that improper charges are not brought against people. So it is a two-fold
process.
In addition, I am still concerned because I would like to see the minutes of the
application that was made in front of Judge Yellen to find out whether or not she was
accurately told that I had heard a bail application to increase the bail based on the fact
that you said three calls were made from Rikers Island.
I would like to know whether or not she was told that the calls were made after Mr.
Oliver had been released from jail, and if that is true, than Mr. Oliver ended up spending
an extended period of time in jail, which he should not have spent.
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My information is that an Assistant District Attorney misrepresented the facts and did
not tell Judge Yellen that I had rejected an application to increase the bail, and did not tell
Judge Yellen when the calls were made or accurately note what the calls were.
But you will have to go order the minutes of that arraignment in order to find that out.
But, in any event, the order of protection is extended on a limited basis. I don't
believe there is that degree of fear and danger to the other two people that you say should
be covered by this order of protection.
MS. FRIAS: There is Ms. Komar's daughter, as well as her mother, who all reside at
the mother's address.
THE COURT: What reason do they have directly to fear Mr. Oliver?
MS. FRIAS: The daughter, being the complainant's daughter, had to flee along with
her mother and just to leave the prior address as a result of the prior case involving the
same complainant and the defendant.
THE COURT: What are you talking about? Give me a time, date and place. Give me
a time, date and place and give me some facts so that I can understand what it is that you
mean.
MS. FRIAS: I'm not sure which. I believe it is the 6889 case,t he arrest of the
defendant involving this complainant whereby she had to leave in the middle of the night
after that case, along with her daughter, and run to the complainant's mother's house.
THE COURT: Based on that you want to include the daughter, and run to the
complainant's mother's house.
THE COURT: Based on that you want to include the daughter in your application.
That is denied. What about the mother?
MS. FRIAS: The mother, I have reached out to the mother, who explained to me that
her relationship with the defendant has also been very adversarial and she has reason to
believe he may come for her, as well.
THE COURT: The application as to the mother is denied. The order of protection
will be extended, limited to Ms. Komar and that is it.
MS. FRIAS: I would like to be heard, just briefly.
THE COURT: I hope you are not going to repeat something that you have already
said. I heard everything about this case. The fact that you haven't stated something today
doesn't mean it hasn't been said. Do you have some new information for me?
MS. FRIAS: I think so, your Honor.
THE COURT: Tell me.
MS. FRIAS: Just, I don't know if it has been recapitulated regarding the relationship
and extent of the abuse which in prior incidents have resulted in the arrest and conviction
of the defendant.
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THE COURT: I understand all of that. What does that have to do with the issue of a
limited order of protection? How many prior incidents have results in a conviction for
the defendant, Ms. Frias?
MS. FRIAS: I believe just one.
THE COURT: When was that?
MS. FRIAS: I just have the '89 incident.
THE COURT: What was that a conviction to, Ms. Frias?
MS. FRIAS: Tampering with a witness and preventing testimony.
THE COURT: That was what the conviction was, or that is what the charge of.
THE COURT: Now -MS. FRIAS: I also have information from the employment of the complainant as to
the employees who have witnessed situations where the defendant has gone and forcibly
removed the complainant from her job, so that to the extent -THE COURT: What is the time, date and place of these alleged acts? When you say
"forcibly removed," are you talking about someone who grabbed somebody by the hand
and said. "I want to go out and talk?"
MS. FRIAS: He grabbed her by the arm. In order to not get fired, because her
manager said, we can't do this. We run a dealership. There are always people in there. I
can't have scenes here. She would have to go outside to deal with the defendant, and then
proceeded to the defendant's home where we have delineated the various counts.
THE COURT: When did the last one of these acts take place, that you have a witness
who is prepared to testify that that happened?
MS. FRIAS: I don't have the specific date on that.
THE COURT: You have to have a certain date on that if you think it is relevant
enough to issue a full order. I am prepared to issue no order of protection. If you think
there is a reason, you have to give me some dates when these things took place.
MS. FRIAS: Rright. What I will do is reach out to the complainant again.
THE COURT: The unfair thing is you are making a record and you asked to be heard
and you don't have accurate information or reliable information and it is not fair, and I
asked you if you could tell me anything that would aid me in making a decision and that
is not what you are doing.
What an Assistant District Attorney is supposed to do is bring accurate and reliable
information before the court before an action is taken which would unduly restrict the
liberty of another person.
You have an obligation not only to be honest with the court and to be fair and
supportive to your complainant, but to be fair and supportive to the people that you are
prosecuting, and before you start asking for more restrictive conditions and bail which
doesn't seem to matter to you, since you don't seem to care that he was in jail for all those
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dates for those charges, you ought to investigate the case and know the time, dates and
places of these things.
Now, I am not suggesting that he is innocent. I am suggesting he is entitled to the
protection of the Constitution, and I don't want him arrested this weekend unless he is
actually in her presence or does something actually positively to harm her.
Now, you had better call her up and tell her that.
MS. FRIAS: All along up until today we have been carrying forward a full order of
protection which not just yourself, but two other judges, have thought fair.
THE COURT: I told you what I though about the actions of the two other judges to
whom you misrepresented certain facts, and that what you did after you couldn't get me
to raised the basil was you had to have him re-arrested after he posted $ 2,000.
That was well within your power. I don't think it was exactly fair. Then it went to a
judge [Judge Eugene Schwartzwald] who was on the front page of every newspaper in
the city, who was worried about getting reappointed. What did you expect that person to
do? He raised the bail.
And it went to a judge [Judge Karen B. Yellen] who had just been criticized because
of a misrepresentation said by your office where they didn't tell that judge about the
condition of a victim and she paroled somebody and she was in every newspaper in the
city, and I am not sure that her bail was reliable.
Now, when the case came back to me, I have calmly, coolly and dispassionately
evaluated all the facts. I did what I was going to do. Do I want to hear anything more
about it? because all you are doing right now is just making things up. I want you to go
out and if you really want to find out about this, get the telephone records and find out
whether or not that person in Pennsylvania was actually called. Don't tell me that Mr.
Hallock should do it, because you are the police. You are the State. You can call the
state police offices in Pennsylvania and find out whether or not a long distance call was
made to his sister last night. You can do those things.
Now, let us get this case together. Another thing. I want you to provide in writing,
Ms. Frias, all of the acts which you are going to introduce during the course of this next
case. We are going to have a Vetimiglia hearing before Mr. Hallock goes on his
vacation, because the way I see you handling this case is that somebody told you
something and you don't know the time. You don't know the date. You don't know the
places and I don't want you to get up there during the course of the case and ask this
witness on the witness stand about these things if it hasn't been subject to a Ventimiglia
hearing.
Is that clear?
MS. FRIAS: That is clear.
THE COURT: You can always order the minutes, Ms. Frias.
Make sure when the minutes are ordered that you have the complete minutes of every
proceedings that you and I have discussed about this case and then you'll see how much I
know about this case.
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Do you have anything else you would like to say right now?
MS. FRIAS: Just one last thing. The basis for the violation of the order of protection
on the subsequent docket which was later consolidated does involve phone calls which
we did provide the court with information of from the Brooklyn House of Detention that
were made.
THE COURT: You provided me with information the calls were made. You didn't
provide me with information that had been documented as to what the substance of the
calls were, and from what I understand, there was a combination of reasons.
One was because he felt he was being unduly held in jail, and the second one was
because he cared about his dog.
Whether or not those constituted actual threats is something left for somebody to
decide. I still contend this case isn't going to go before a jury for them to decide. We
will see, though.
So what does that have to do with anything? I am writing down, no phone calls.
What happens when she calls the police and says, he called me on the telephone, go and
arrest him?
MS. FRIAS: All I am reaching out to you is that we have made representations to the
court and, to the best of my ability as an Assistant, I have attempted to meet your
demands.
THE COURT: What does not have to do with anything?
MS. FRIAS: In getting phone calls, as you felt to corroborate any additional
information, we have done that. In trying to make out allegations that the complainant' is
calling the defendant's sister, it should [not] bear on whether this defendant should have a
full or limited order of protection against this complainant.
THE COURT: Yes, it should, and that is the end of the discussion. When you get to
stand up here as a judge you will see that judges listen to both sides. When you stand
where you stand you think that when a prosecutor stands up and says something, because
she has done everything she could do, and she won't tell a lie or say something that she
didn't have a reason to believe was true, then that should be the end of the discussion. I
disagree, and I am making a decision. Now, the case is going to be adjourned, and unless
he comes into the actual presence of this woman, I don't want him to be arrested, and you
better tell her that, because that is what I am writing here. He is not to go to her home,
not to go to her place of business, but unless he is actually in her presence, in the
presence of a police officer, I do not want him arrested.
Is that clear.
MS. FRIAS: No, your Honor. It is not clear. I am sorry.
THE COURT: Thank you. It is clear, because that is what I am writing. No police
officer is to arrest him unless the police officer sees him in her presence. Do you
understand?
MS. FRIAS: If there are other witnesses?
93
THE COURT: Do you understand? That is my order.
MS. FRIAS: That there are no phone calls?
THE COURT: That is correct. You tell her, you have a serious conversation with her,
because when this case is on again, it better be on the next time in front of me for the
purpose of a Ventimiglia hearing. If it is on before that because he has been re-arrested,
it better be because of the reasons that I have said in this order protection. if he does
something to harass, annoy, alarm her in her presence, over the telephone, then he can be
arrested. But otherwise, you better instruct the police officers in the precinct that he
should not be arrested unless he violates this order of protection, and tell her that also.
Do you understand?
MS. FRIAS: I understand.
THE COURT: I don't want him arrested because she called a family member or a
family member calls her on the phone. If you want the terms changed because you heard
something has happened, fine me, and you can always change the terms ex parte, and we
can call Mr. Hallock and he will have his client come in and I will change the bail
conditions.
Is that understood?
MS. FRIAS: Understood.
THE COURT: What date do you want?
MR. HALLOCK: Can I just clear something up on the record, because I think the
record here is very dangerous, in the sense of the District Attorney saying this '89 case
my client was charged with has to do with Ms. Komar. My client didn't even meet her
until 1992.
He was in jail for three years, from 1989 to 1991. Upon being released he spent a
year and a half in a drug program in which he has not done drugs since that time.
At that point, upon finishing the drug program, he began to work in a car dealership
installing alarms upstate. At that point he met her, but that wasn't until sometime -- if it
was '92, it was late '92 -- but he thinks it was early '93.
That is the first time he met her. There is nothing on his criminal record that the
District Attorney was mentioning before, that has anything to do with this complaining
witness at all.
As a matter of fact, the charges the D.A. was pointing to has to do with possession of
a weapon and possession of drugs. It had nothing to do with her whatsoever.
THE COURT: Have a seat, Mr. Hallock.
Ms. Frias, please stand up again.
Did you represent to the Court that mr. Oliver and Ms. Komar were involved in a case
in 1989?
MS. FRIAS: I represented, I believed she may have been the complainant in the case.
THE COURT: What did you base that on?
94
MS. FRIAS: My various conversations with the complainant.
THE COURT: She told you about the date of 1989?
MS. FRIAS: Maybe I was incorrect on the date.
THE COURT: Well, think about that. In this case when everything is being taken
down and when there is such concern about her it is irresponsible to have suggested that
the 1989 case where he is charged with tampering with a witness should affect the
outcome of this case and that perhaps your reason for being so vehement and so vigorous
in your request for the order of protection is based on some faulty information or some
inadequate investigation.
Now, please verify whether or not the information Mr. Hallock just provided is true.
If it is, then go back and talk to your complaining witness. If she told you that, then she
should be investigated. If she hasn't told you that then you should be more careful. Yes?
MS. FRIAS: The basis for reaching out to get a full OP -THE COURT: This is not a conversation. Do you want to -- all you are responding to
is the 1989 allegation, and you haven't given me one date where you can say he did the
things that you say he did, other than what we already discussed in the accusatory
instrument, which is why I told you to tell me in a piece of paper, in a list, what acts,
prior convictions, immoral or illegal acts you seek to produce at trial. Then I will have
much more of an idea.
Mr. Hallock will take it up in a Ventimiglia hearing and we'll proceed. Otherwise,
right now I think you just talk without reason.
Next, what date do you want?
MR. HALLOCK: I can do it Jan. 30.
THE COURT: 1/30, before me.
MS. FRIAS: This is for the hearing?
THE COURT: I want you to have provided the information. It is for the Ventimiglia
hearing.
MS. FRIAS: I would like more time, your Honor.
THE COURT: I am sorry. That is unacceptable. I would like Mr. Oliver to come
back on the 30th so that I can make sure that the terms of the OP are being adhered to,
and so I can find out whether or not you have gotten any new information, because you
may find out that what this complaining witness is telling you isn't true and you may be
prepared at that time to let him go back to Pennsylvania and get his life together, with no
order of protection.
He deserves it now, after having spent 40 days in jail. If it was important enough to
keep him in jail, it is important enough to get the case ready.
How long was he in jail, Mr. Hallock?
MR. HALLOCK: Forty days.
THE COURT: Is that understood, Ms. Frias?
95
MS FRIAS: Yes.
THE COURT: 1/30. His parole is continued.
Mr. Oliver, do you understand how important it is?
THE DEFENDANT: Yes, I do, your Honor.
THE COURT: For you to keep the peace in this?
THE DEFENDANT: Yes, I do, your Honor. Thank you, your Honor.
THE COURT: Next.
96
This article is reprinted with permission from the March 18, 1996 edition of the New
York Law Journal. © 1996 NLP IP Company.
New York Law Journal
March 18, 1996, Monday
LETTERS TO THE EDITOR; Pg. 2
Governor Responds To Bars' Resolution
George E. Pataki, Albany, N.Y.
The author is Governor of the State of New York.
Last Friday, March 8, your newspaper reported that a group of 26 bar associations
and six law school deans has issued a joint resolution endorsing the "fundamental
principle" that "judges in New York should not be subject to the fear of sanction of
removal from office solely upon the basis of a decision, ruling or opinion, lawfully taken
pursuant to the exercise of judicial discretion." As your reported noted, the group seemed
to be aiming its comments at my decision to refer New York Criminal Court Judge Lorin
Duckman to the State Commission on Judicial Conduct to determine whether he should
be removed from office.
I can only wonder how many of those who endorsed the resolution took the time to
read the Report on the Allegations Against Judge Duckman that accompanied the
referral. Had they done so, they would have appreciated the basis for the referral was not
a lawful exercise of judicial discretion. Rather, I made the referral because there was
strong evidence that Judge Duckman harbored a personal bias -- a belief that domestic
violence is not a crime -- that, if found to exist, should automatically disqualify him from
the bench.
The report includes this paragraph, which sets forth my fundamental principle in this
area:
No judge should be removed for a single (or even a few) discretionary decision which
may be viewed as "bad." Especially in our criminal courts, judges must make difficult
rulings balancing competing interests, often in a hurried setting and frequently with less
than perfect information. Removal for a few bad decisions could be ruinous for the
independence of the judiciary, which is a bulwark of our liberty. That is true even when
a judge's decision leads to nightmarish consequences that a wiser ruling would have
prevented.
As long as I am Governor, that principle will guide my decisions in these weighty
matters. I asked the Commission on Judicial Conduct to review Judge Duckman's fitness
because, in my judgement, the matter went far beyond a few bad discretionary rulings.
Most troubling to me were Judge Duckman's remarks as set forth in a sworn affidavit by
Bryanne Hamill, a respected Bronx prosecutor -- remarks that were reportedly said in the
midst of a 1991 domestic violence case. According to Ms. Hamill (whom my staff
interviewed and found credible), Judge Duckman told her that he had once been involved
in a domestic violence incident, that "you can't believe it's you doing these things" and
97
either that it "should not be" or "is not a crime." Ms. Hamill prepared a contemporaneous
memorandum detailing these remarks.
If Judge Duckman made such indefensible comments, he should not be sitting in
Criminal Court. Domestic violence is a crime; indeed, it is among the most serious
crimes prosecuted in our criminal courts, and one in which the potential for escalating
violence is omnipresent. Plainly, no judge can rule impartially and dispassionately on
issues of bail, orders of protection, and the like, if he or she believes that such matters are
somehow beyond the control of the abusive partner and therefore not the proper subject
for a criminal case.
Put differently, if Judge Duckman made these remarks, his decision to release Benito
Oliver (who subsequently killed Galina Komar) or to confer a "time served" sentence on
Maximo Pena (who subsequently attacked Evelyn Molina) take on a different cast; they
were not just bad decisions; they were biased decisions rendered by a judge who should
not have presided over the cases.
Do the 26 bar association groups and six law school deans believe that a person who
views domestic violence as not a crime and whose decisions bespeak that view is fit to sit
in Criminal Court? If so, I would encourage them to issue another joint resolution setting
forth that belief. As Governor, I would have abdicated my responsibility to ensure that
the laws are faithfully executed if I had not referred Judge Duckman to the Commission
for it to conduct a full investigation. As I said at the time and reiterate now, if the
Commission determines that the facts are as presented to me -- the Judge Duckman
cannot rule impartially on domestic violence cases and that he has exhibited a reckless
disregard for the rights of victims -- his removal from the bench is the appropriate course.
98
This article is reprinted with permission from the March 18, 1996 edition of the New
York Law Journal. © 1996 NLP IP Company.
New York Law Journal
April 23, 1996, Tuesday
SECTION: Pg. 1
Charges to Be Filed Against Duckman
Pataki Asks Judge to Resign; Threatens Removal by Senate
Gary Spencer
ALBANY - Governor Pataki called on Brooklyn Criminal Court Judge Lorin
Duckman to resign yesterday, just hours after the State Commission on Judicial Conduct
notified the Governor that it will file formal charges against the judge for alleged bias
against prosecutors and demeaning remarks toward women.
The Governor stood by this threat, issued two months ago when he filed his
complaint about Judge Duckman's handling of domestic violence cases, that he would ask
the state Senate to remove the judge if the commission does not. "If the facts are as we
believe them to be at the present time, we believe removal is the only appropriate
sanction," he said at a press conference yesterday.
At the same time, the Governor lifted the 60-day deadline he had imposed on the
commission to act, saying he would await the outcome of commission hearings on the
formal charges and any review by the Court of Appeals, a process that could take a year
or more.
"We are going to go through the statutory process . . .," he said. "But the simplest
thing, and the fair thing for all involved, would be for Judge Duckman to resign."
Far from resigning, Judge Duckman wants to return to the bench as soon as possible,
according to his attorney, Ronald G. Russo of Fischetti & Russo, who yesterday
requested a meeting with Chief Administrative Judge Jonathan Lippman. Judge
Duckman has been on a paid leave of absence since February.
The commission informed Governor Pataki that its charges will not include any of the
three incidents that generated the most controversy and prompted the Governor's
complaint: the Benito Oliver bail reduction, the Maximo Pena sentencing, and off-therecord remarks that a Bronx prosecutor interpreted as suggesting that the judge may have
abused his former wife.
"I am gratified the judge has been cleared on the major charges," Mr. Russo said.
"He's basically been charged with an attitude problem in the first-degree."
Governor Pataki said the decision to exclude those incidents was "wrong" and he said
he will urge the commission to reconsider, arguing that they are "part of a pattern of
behavior" by Judge Duckman "of refusing to treat domestic violence cases as the serious
crimes they are."
99
It was the Oliver case and the murder of Gallina Komar that touched off the storm
that has engulfed Judge Duckman. Mr. Oliver had been jailed on a misdemeanor charge
of stalking Ms. Komar, his former girlfriend. The judge reduced his bail after a series of
hearing and, three weeks after his release, Mr. Oliver killed Ms. Komar and then himself
on Feb. 12.
In Pena, the judge sentenced Mr. Pena to time served on four misdemeanor charges
of violating orders of protection obtained by a former girlfriend. Five months after his
release on probation, Mr. Pena again assaulted the victim.
In its letter to the Governor, signed by Commission Chairman Henry T. Berger, the
panel cited the "wide discretion" judges have in sentencing and setting bail. "There is no
evidence that Judge Duckman engaged in judicial misconduct in the exercise of this
discretionary authority in the Oliver and Pena cases," it said, "or in his comments relating
to the factors that a judge may consider in setting bail," an apparent reference to Judge
Duckman's oft-quoted remark that Ms. Komar had suffered "some bruising" but "no
disfigurement."
The Governor's complaint about judge Duckman's alleged involvement in domestic
violence and perceived insensitivity toward its victims was based on an affidavit by
Bronx Assistant District Attorney Bryanne Hamill, who reported the judge told her and a
defense attorney that he had been involved in a domestic violence incident and had said
either that "it shouldn't be a crime" or is "not a crime." The defense attorney said she had
no recollection of the comments.
Bias Examined
Commission Chairman Berger told the Governor, "We fully explored the possibility
that he abused his former wife and we found no evidence of such abuse."
The commission charges will include "the judge's alleged anti-prosecutorial bias,"
based in part on transcripts of four case the Governor forwarded with his complaint. An
investigative report by the Governor's staff said the transcripts revealed a pattern in which
the judge "seems quick to resort to invective and ad hominem attacks on the prosecutors
who appear before him. When a prosecutor disagrees with his assessment of a case,
Judge Duckman appears prone to impugn the prosecutor's character and question his
professionalism."
It will also consider statements by Bronx Chief Assistant District Attorney Barry L.
Kluger to the Mayor's Committee on the Judiciary in 1992, reporting that Judge
Duckman had referred to a female prosecutor during a break as "sexy." Mr. Kluger also
reported that, in a case in which the victim and defendant were black women, the judge
allegedly said, "At the risk of sounding racist and sexist [the case] is just women, and you
know sometimes certain things are just cultural."
Mr. Russo said Judge Duckman, who is mourning his mother who died of a heart
attack a week ago, was unavailable for comment.
Following is the text of the letter:
100
Text of Letter
The State Commission on Judicial Conduct has completed its investigation of your
complaint, dated Feb 28, 1996, concerning alleged misconduct by Judge Lorin M.
Duckman on the Criminal Court of the City of New York.
The complaint and your appended staff's report concerned five major subjects;
1. The Benito Oliver matter, in which the defendant killed Galina Komar and then
killed himself after Judge Duckman had lowered the defendant's bail to $ 2,000;
2. The Maximo Pena matter, in which the defendant allegedly attacked his former
girlfriend some five months after judge Duckman sentenced him to time served (60 days)
plus two years and 10 months probation;
3. Comments attributed to Judge Duckman concerning an alleged "domestic
violence" situation in which the judge was involved;
4. Judge Duckman's improper treatment of prosecutors, which allegedly included
insulting comments and evinced an "anti-prosecution" bias; and
5. A letter by the Bronx County District Attorney's office, sent to the Mayor's
Committee on the Judiciary in 1992 concerning certain statements attributed to Judge
Duckman, including Judge Duckman's reference to a physical confrontation between two
Africa-American women as "cultural" and a statement that an assistant district attorney
was "sexy."
The Commission undertook an extensive investigation, which included a review of
hundreds of transcripts, more than 70 interviews, four personal appearances by Judge
Duckman for testimony, and an oral and written presentation to the Commission by the
judge's attorney. We have taken the following action.
The Commission has directed its staff to file formal charges of judicial misconduct
against Judge Duckman, pursuant to Judiciary Law § 44, subdivision 4. A formal hearing
before a referee will thereafter be held. The charges will include, inter alia, the judge's
alleged anti-prosecutorial bias, and insulting and other injudicious conduct toward
prosecutors, as well as the allegations in the letter to the Mayor's Committee on the
judiciary. As to these matters, some of the alleged instances of judicial misconduct
which you sent to the Commission, as well as others identified during our investigation,
will be part of the formal charges.
The Benito Oliver case, the Maximo Pena case, and the judge's alleged reference to
his "domestic violence" situation will not be included in the charges for the reasons set
forth below.
Judges by law have wide discretion in both setting bail and imposing sentences.
There is no evidence that Judge Duckman engaged in judicial misconduct in the exercise
of this discretionary authority in the Oliver and Pena cases or in his comments relating to
the factors that a judge may consider in setting bail.
The judge's comments to an assistant district attorney about his personal life appear to
have conveyed the impression that he abused, or may have abused, his first wife. We
fully explored the possibility that he abused his former wife and we found no evidence of
101
such abuse. Consequently, there is no discernible connection between his personal
experiences and his handling of domestic violence cases.
As to the Commission's authorization of formal charges against Judge Duckman, we
expect the Commission's staff to file a Formal Written Complaint within three to four
weeks in this matter. Those charges and the subsequent proceedings, including the
hearing before the referee, are confidential pursuant to Judiciary Law, § § 44 and 45,
unless the respondent-judge waives confidentiality pursuant to Judiciary Law, § 44,
subdivision 4.
We will, of course, advise you of the disposition of the formal charges.
102
Copyright ©1996 - 1997 by The New York Times Company, Reprinted by Permission
The New York Times
April 24, 1996, Wednesday, Late Edition - Final
Correction Appended
Section B; Page 1; Column 1; Metropolitan Desk
Judge Wins This Round By Losing
By Joyce Purnick
In that muddy way the political system has of softening the rough edges with
improbable compromise, the Criminal Court judge accused of mishandling domestic
violence cases just won a round in his fight to stay on the bench -- by losing. And the
Commission on Judicial Conduct asserted its quasi-independence from Gov. George E.
Pataki by almost doing as he asked.
The Commission is indeed charging Lorin Duckman of Brooklyn Criminal Court
with judicial misconduct, as the Governor wanted. This puts him in an unenviable
position. But consider the alternative. If the Commission had absolved Judge Duckman of
all wrongdoing, the Governor would have pushed the Republican-dominated Senate to
oust the Judge anyway, which no State Senate has done since 1872.
The Commission's charge effectively delays -- and may prevent -- an impeachment
proceeding, an inevitably disruptive spectacle pitting one branch of government against
another. And the heated emotions over the political buzz-phrase of the season -- "junk
justice" -- are likely to cool as the Commission conducts its closed-door hearings over the
next several months.
Compromise may not have been the Commission's motivation; nobody knows
because its proceedings are, by law, secret. But the impact is obvious.
THE Commission subtly separated itself from the Governor by in effect clearing
Judge Duckman of error in the case that drew headlines -- his decision to release a
defendant who went on to kill his former girlfriend and then himself. To Mr. Pataki's oftstated outrage, that case and another, in which the judge released a man who then
assaulted his ex-girlfriend again, are not part of the Commission's charges, it said, citing
the bench's "wide discretion in both setting bail and imposing sentences." Instead, the
judge is charged with being biased against prosecutors, and making insulting remarks.
That may be enough to end Judge Duckman's career on the bench, one way or
another. "Litigants have to accept a judge's presumed wisdom, and Duckman has been
turned into something between a joke and a monster by this public process," said Stephen
Gillers, professor of legal ethics at New York University Law School.
Nor did the judge's conduct on the bench help his cause. Court transcripts show that
he was indeed repeatedly insensitive and impatient in domestic violence cases. In the case
that attracted the most attention, Benito Oliver, a defendant the judge released over the
prosecutor's objections, killed his former girlfriend, Galina Komar, and then himself. The
103
judge, clearly furious with the Brooklyn District Attorney's office because it was
repeatedly unprepared for trial, released Mr. Oliver after he had spent 40 days in jail.
Judge Duckman even narrowed the court order of protection against Mr. Oliver and was
dismissive of the prosecutor's report of threatening telephone calls that Mr. Oliver placed
to Ms. Komar from jail.
If ever there was a portrait of injudicious judicial conduct, this case seemed to
provide it. But as the Commission on Judicial Conduct interprets the law, it cannot
remove someone from the bench for making a mistake, or for poor judgment, unless there
is an underlying pattern of judgment that betrays a prejudice, incompetence or ignorance
of the law.
"YOU may think Duckman did it all wrong," said Michael A. Cardozo, presidentelect of the City Bar Association. "But if we start finding misconduct because we don't
like the way a judge exercises discretion, because in retrospect his decision turns out to
be a gross blunder, it's going to chill the independent judiciary. What the Commission did
do was say, we're not going to remove him on one case or that case, but as we look at the
entire record, we think there is an anti-prosecutorial bias."
The particulars of the case against the judge have not been released. The public does
not know what they are. Neither, despite his call for the judge's ouster, does the
Governor. His staff examined several of the judge's cases, but not all of those that the
Commission is reviewing. The details will not be publicly released unless the judge
decides to open the Commission hearings to the public. Or until they are concluded and
the Commission recommends that the judge be publicly admonished, censured or
removed from office. That is expected to take until December, or until early next year.
Maybe by then, lawyers and judges were saying yesterday, the public and the
politicians will have tired of "junk justice" and found another target.
CORRECTION-DATE: April 25, 1996, Thursday
CORRECTION:
The Metro Matters column yesterday, about the controversy over Judge Lorin
Duckman's handling of a domestic-violence case, referred incorrectly to the prosecution's
record. Before Judge Duckman released the defendant on bail, the prosecution had asked
for more time to prepare for trial only once; it had not been unprepared repeatedly.
104
STATE OF NEW YORK
COMMISSION ON JUDICIAL CONDUCT
------------------------------------------------------X
In the Matter of the Proceeding
Pursuant to Section 44, subdivision 4,
of the Judiciary Law in Relation to
LORIN M. DUCKMAN,
A Judge of the Criminal Court of the City
of New York, Kings County.
------------------------------------------------------X
This article is reprinted with permission from the October 27, 1997 edition of New York
Law Journal. © 1997 NLP IP Company.
Copyright 1997 New York Law Publishing Company
New York Law Journal
October 27, 1997, Monday
DISCIPLINARY PROCEEDINGS;
State Of New York Commission On Judicial Conduct
Matter of Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in
Relation to Lorin M. Duckman, a Judge of the Criminal Court of the City of New
York, Kings County.
Before The Commission: Berger, Chair; Brown, Coffey Crotty, Goldman, Luciano,
Marshall, Newton, Pope, Salisbury and Thompson
Gerald Stern (Robert H. Tembeckjian and Jean M. Savanyu, of counsel) for the
Commission; Ronald G. Russo (Richard W. Levitt, of counsel) for respondent.
The respondent, Lorin M. Duckman, a judge of the Criminal Court of the City of New
York, Kings County, was served with a Formal Written Complaint dated June 5, 1996,
alleging, in 363 specifications, that he willfully disregarded the law, displayed
intemperate demeanor, abused the power of his office and exhibited bias against the
prosecution. Respondent filed an answer dated Aug. 24, 1996.
Also on Aug. 24, 1996, respondent moved to dismiss the complaint in certain
respects. The administrator of the Commission opposed the motion on Aug. 30, 1996.
105
Respondent replied by affidavit dated Sept. 10, 1996. By determination and order dated
Sept. 13, 1996, the Commission denied respondent's motion in all respects.
By order dated Aug. 15, 1996, the Commission designated Matthew J. Jasen as
referee to hear and report proposed findings of fact and conclusions of law. A hearing
was held on Nov. 6, 7, 8, 12, 13, 14, 15, 18, 19, 20, 21, 22, 25 and 26 and Dec. 2, 3, 4, 5,
6 and 11, 1996, and the referee filed his report with the Commission on May 28, 1997.
By motion dated June 2, 1997, the administrator moved to confirm the referee's report
and for a determination that respondent be removed from office. Respondent opposed the
motion on Aug. 11, 1997. The administrator filed a reply dated Aug. 21, 1997.
By letter dated Sept. 2, 1997, respondent waived confidentiality pursuant to Judiciary
Law § 44(4), and on Sept. 11, 1997, the Commission heard oral argument in public
session, at which respondent and his counsel appeared, and thereafter considered the
record of the proceeding and made the following findings of fact.
As to Charge I of the Formal Written Complaint:
1. Respondent has been a judge of the Criminal Court of the City of New York since
April 1991.
2. Between mid-1991 and early 1996, as set forth in Appendix A, respondent gave the
appearance of bias against the police and the prosecution in that he repeatedly referred to
prosecutors appearing before him by pejorative or derisive names; impugned their
motives; derided their professional integrity and "sense of justice;" rebuked them for their
plea, bail and sentencing recommendations; expressed anger, raised his voice and yelled
or screamed when they did not accede to his suggestions for more lenient dispositions;
often got red in the face, stood up, leaned over the bench and stared at them or paced
behind the bench with his hands on his hips; criticized them for policies of "your society"
or "your government" and otherwise delivered inappropriate speeches propounding his
views, and derided, rebuked and criticized prosecutors and the police.
3. In 13 cases, as set forth in Appendix B, respondent dismissed facially sufficient
accusatory instruments as insufficient on their face because the prosecutors would not
consent to respondent's requests for more lenient dispositions or because he believed that
the cases should not be prosecuted. He dismissed the cases without appropriate notice to
the prosecution, without giving the prosecution an opportunity to be fully heard, without
requiring written motions by the defense and without giving the prosecution the right to
re-draft the charges, as required by CPL 170.30 and 170.35. His dismissals were often
coupled with harsh criticisms of the prosecutors and police and other inappropriate
behavior, such as screaming and ejecting a prosecutor from the courtroom.
4. As set forth in Appendix C, respondent dismissed the charges in one case in the
interest of justice knowing that he was not following the provisions of CPL 170.40 and
adjourned in contemplation of dismissal two other cases without the consent of the
prosecution, as required by CPL 170.55(1). Respondent coupled these dispositions with
sarcastic criticism and other inappropriate comments directed at prosecutors.
5. As set forth in Appendix D, respondent made statements indicating bias in cases
involving domestic violence.
106
As to Charge II of the Formal Written Complaint:
6. On May 13, 1992, respondent granted a prosecution application for an adjournment
in contemplation of dismissal in People v. Tanda Brock, an assault case in which both the
defendant and the alleged victim were African-American women. Thereafter, from the
bench, in the presence of Legal Aid Society lawyer Mary Zaslofsky, respondent
admittedly told Assistant District Attorney Viola Abbitt, who is African-American, "At
the risk of sounding racist and sexist, [the case] is really just two women, and you know
sometimes certain things are just cultural."
7. In the summer of 1992, after a lunch recess, respondent told Assistant District
Attorney Deborah Fried-Rubin that he had attended a step aerobics class. When Ms.
Fried-Rubin said such a class might alleviate her back problems and that wearing high
heels did not help her back, respondent said, "Oh, you're just too sexy to wear flats," and
"There's nothing like a well-turned heel." In denying the substance of the claim that he
was encouraging her to wear high heels, respondent admitted to telling Ms. Fried-Rubin
that she had "nice legs."
8. On the same day, after respondent reduced bail on a defendant, Ms. Fried-Rubin
"plopped" her file folder on counsel's table about a foot away, and respondent called out
that she had been discourteous. At the end of the day, when Ms. Fried-Rubin told
respondent that it was a novel experience for her to be called discourteous, respondent
said, "You'd like to be a bad girl."
9. In November 1993, during an informal discussion in respondent's courtroom,
respondent told Assistant District Attorney Nancy Rothenberg Mukasey that the skirt she
had worn the day before was "much too long" and that the skirt she was wearing, which
was above the knee, "looks much better on you." Respondent made the statement when
they were both standing in the doorway between the robing room and the courtroom.
There were other people in the general area but no one in the immediate vicinity.
10. In June 1995, in People v. Pardobani et al., a four-defendant bias case,
respondent asked Court Officer Lorecia Alston to apprise him whether any defendants
were late to court. One morning before the proceedings began, Ms. Alston went up to the
bench where respondent was standing and told him that two defendants were late;
respondent asked whether she knew why they were late; when Ms. Alston said "no,"
respondent said, "Because they're on CP time." When Ms. Alston asked what he meant,
respondent said, "You know, colored people's time. You know, they have to take the train
and come from the projects . . . [which] makes them late."
11. Kevin McGrath Jr., a Kings County Assistant District Attorney, is totally blind in
his left eye and legally blind in his right. In order to read something, he must hold it
within a few inches of his face. On Sept. 13, 1994, during People v. Piczicara, Mr.
McGrath; the defense lawyer, Michael Millet, and respondent were having colloquy on a
possible disposition of the case. Mr. McGrath was reading his paperwork at the
prosecution table, leaning over the table to get close to the various documents to be able
to read them and answer the questions that he was being asked. Respondent then called
him and defense counsel to the bench, where respondent waived a rolled-up blue-back
form in Mr. McGrath's face and asked, "Do you see me?" Mr. McGrath said, "Yes, your
107
Honor," then put his hand on the blue-back and lowered it. Mr. McGrath believed that
respondent was making a reference to his vision by waving the blue-back in his face.
12. In December 1994, Mr. McGrath appeared before respondent for trial in People v.
Santos. During the course of the two-day trial, respondent accused Mr. McGrath of
having broken a courtroom lectern by leaning on it and said that he would "teach" Mr.
McGrath "how to properly stand up in court." Respondent was "angry" and was "yelling"
at Mr. McGrath. He repeatedly accused him of breaking the lectern and said that he
would teach Mr. McGrath how to use it. Respondent was admittedly "distraught,"
"upset," "shocked" and "dismayed" that the lectern had been broken and felt that "it was
like a part of me that had gotten broken." He admits that his law clerk "calmed me down"
by assuring him that the lectern could be fixed.
13. A year later, in December 1995, respondent and Mr. McGrath met after business
hours at a restaurant bar near the courthouse. Respondent turned to Mr. McGrath and
said, "And he's the one who broke my lectern." Mr. McGrath replied, "No, I didn't."
Respondent was "not kidding" or "jovial."
Upon the foregoing findings of fact, the Commission concludes as a matter of law
that respondent violated the Rules Governing Judicial Conduct then in effect, 22 NYCRR
100.1, 100.2(a), 100.3, 100.3(a)(1), n1 100.3(a)(2), n2 100.3(a)(3) n3 and 100.3(a)(4), n4
and Canons 1, 2A, 3, 3A(1), 3A(2), 3A(3) and 3A(4) of the Code of Judicial Conduct.
Charges I and II of the Formal Written Complaint are sustained insofar as they are
consistent with the findings herein, and respondent's misconduct is established.
n1 Now § 100.3(B)(1).
n2 Now § 100.3(B)(2).
n3 Now § 100.3(B)(3).
n4 Now § 100.3(B)(6).
Respondent's mean-spirited, bullying tirades against prosecutors over a five-year
period reveal that he is a biased, intemperate judge who deliberately misapplies the law
and abuses judicial powers. Such qualities are inimical to the proper role of a judge who
must apply the law fairly, impartially and dispassionately after hearing both sides to a
dispute. By his pattern of contrary conduct, respondent has demonstrated that he poses a
threat to the proper administration of justice. (See, Matter of Reeves v. State Commission
on Judicial Conduct, 63 NY2d 105, 110-11).
In 16 cases, respondent knowingly and intentionally abrogated the prosecution's
authority and subverted due process of law by disposing of properly-initiated criminal
cases without either the consent of the parties or trial. Without a legal basis to do so and
without giving the prosecution an adequate opportunity to be heard, he dismissed 13
cases as insufficient on their face, one "in the interest of justice" and two by adjournment
in contemplation of dismissal. These extra-legal dispositions were often accompanied by
impatient and personal criticisms of young prosecutors in obvious retaliation for their
insistence on following the policies of their offices rather than acceding to the more
lenient dispositions that respondent advocated. Respondent assumed the defense position
in these cases himself; little or nothing was heard from the defense attorneys.
108
In these cases and many other instances, respondent badgered young prosecutors in
cross-examination style and gave inappropriate "speeches" concerning social problems
and government policies. By that conduct, he gave the unmistakable impression that he
was biased in favor of the defense and against the police and the prosecution. Whether
he, in fact, harbors such bias is immaterial, for a judge must both be impartial and appear
impartial so that "the public can perceive and continue to rely upon the impartiality of
those who have been chosen to pass judgment on legal matters involving their lives,
liberty and property," (Matter of Sardino v. State Commission on Judicial Conduct, 58
NY2d 286, at 290-91). We are convinced that the appearance of bias "is no less to be
condemned than is the impropriety itself," (see, Matter of Spector v. State Commission on
Judicial Conduct, 47 NY2d 462, at 466).
Respondent cannot justify his behavior as the need to "teach" inexperienced and
poorly-prepared prosecutors. Teaching need not involve angry screaming and humiliating
invective and is not effective when the lesson is that a judge may abandon the law and
abuse judicial authority. Neither the chaotic conditions of the courtroom (see, Matter of
Friess, 1984 Ann Report of NY Commn on Jud Conduct, at 84, 88) nor the need to
dispose of cases on a congested calendar (see, People v. Douglass, 60 NY2d 194) are
acceptable explanations of such conduct. And the facts that other judges may follow
some of the same procedures (a fact not proven in this record) or that respondent handled
many other cases appropriately are irrelevant. It is no defense that other judges "may be
similarly derelict," and consideration of cases properly handled by respondent would only
establish "that his behavior was erratic, which itself is inconsistent with a Judge's role."
(Matter of Sardino, supra, at 291).
Respondent's wrongdoing is exacerbated by his failure to control his actions over a
five-year period and to change them even after numerous discussions about his treatment
of prosecutors with their superiors in both counties in which he sat as a Criminal Court
judge. (See, Matter of Sims v. State Commission on Judicial Conduct, 61 NY2d 349, 357).
The fact that he continually refused -- until oral argument before the Commission -- to
acknowledge that he had improperly disposed of cases also militates in favor of the
strictest sanction. (See, Matter of Shilling v. State Commission on Judicial Conduct, 51
NY2d 397, 404).
A judge may not be removed for poor judgment or even extremely poor judgment.
(Matter of Cunningham v. State Commission on Judicial Conduct, 57 NY2d 270, 275).
The proper purpose of sanction is to protect the judiciary from unfit incumbents. (Matter
of Vonder Heide v. State Commission on Judicial Conduct, 72 NY2d 658, 660). But
respondent's judgment is not at issue in this proceeding. By knowingly ignoring the law
and proper legal procedure in case after case, while simultaneously attacking the
prosecution and arguing the defense himself, respondent effectively destroyed public
confidence in his ability to properly perform the duties of a judge and harmed public
perception of the judiciary as a whole. (See, Matter of Esworthy v. State Commission on
Judicial Conduct, 77 NY2d 280, 283). Every person who enters a courtroom -- whether
attorney, defendant, complainant or observer -- has the right to expect that the judge will
follow the law and treat those before the court with dignity and fairness. To permit a
judge who repeatedly does otherwise to remain on the bench would erode the image of
the state's judiciary as an independent and honorable one.
109
By reason of the foregoing, the Commission determines that the appropriate sanction
is removal.
Mr. Berger, Ms. Brown, Ms. Crotty, Judge Luciano, Judge Marshall, Judge Newton
and Judge Salisbury concur as to sanction.
Judge Luciano, Judge Marshall and Judge Newton dissent with respect to
Specification 330 of Charge I and vote to sustain that allegation.
Ms. Brown, Ms. Crotty, Judge Luciano and Judge Marshall dissent as to Specification
342 of Charge I and vote to sustain that allegation.
Mr. Goldman dissents as to Specifications 7, 18, 19, 23(a), 27, 28, 33, 236 through
242, 250 through 257, 258 through 259, 261 through 269, 277 through 283, 294 through
302, 303 through 309, 310 through 315, 316 through 319 and 320 through 328 of Charge
I and as to Paragraphs 5, 12 and 13 of the findings of fact herein and votes that those
allegations be dismissed.
Mr. Coffey, Mr. Goldman and Judge Thompson dissent insofar as the majority finds
that respondent's actions conveyed the appearance of bias.
Mr. Coffey, Mr. Goldman, Mr. Pope and Judge Thompson also dissent as to sanction
and vote that respondent be censured.
Certification
It is certified that the foregoing is the determination of the State Commission on
Judicial Conduct, containing the findings of fact and conclusions of law required by §
44, subdivision 7, of the Judiciary Law.
Concurring Opinion By Judge Marshall, In Which Judge Luciano Joins
The majority rightly concludes that the appropriate sanction is removal.
I would emphasize, however, respondent's consistent and outrageous disregard of the
law, thus abdicating his judicial responsibilities to safeguard the public and to promote
respect for our judicial system.
The Referee in this case held hearings over a 20-day period. There were 67 witnesses
and approximately 4,400 transcribed pages and 200 exhibits in evidence after which he
concluded, among other acts of misconduct:
1. "Respondent abused the power of his office and acted in a manner inconsistent and
prejudicial to the fair and proper administration of justice."
2. "Respondent, in the exercise of his judicial duties, willfully disregarded provisions
of the law that resulted in the improper dismissal of criminal charges and willfully
engaged in intemperate and injudicious conduct with Assistant District Attorneys."
3. "Respondent's apparent bias against prosecutors resulted in Respondent dismissing,
as facially insufficient, accusatory instruments which were sufficient on their face
without giving the prosecution adequate notice or opportunity to be heard or amend."
110
4. "Respondent delivered ad hominem criticisms and injudicious lectures to Assistant
District Attorneys that unfairly attributed to them improper and harsh values and
judgments in their role as prosecutors."
5. "Respondent made intemperate, derisive comments to Assistant District
Attorneys."
6. "Respondent failed to maintain order and decorum in his court and failed to be
patient, dignified and courteous."
In the past, removal has been deemed appropriate for far less egregious conduct in
cases involving judges' intemperate behavior, refusal to follow the law and conveying the
appearance of bias. (See, e.g., Matter of Hamel v. State Commission on Judicial Conduct,
88 NY2d 317 [in connection with two cases, judge ignored the law and improperly jailed
defendants on the ostensible grounds that they had failed to pay restitution]; Matter of
Esworthy v. State Commission on Judicial Conduct, 77 NY2d 280 [in 12 cases, Family
Court judge flouted the law, conveyed the impression of bias and made intemperate
statements]; Matter of Vonder Heide v. State Commission on Judicial Conduct, 72 NY2d
658 [judge removed on five charges involving intemperate language on and off the bench
and the failure to follow proper legal procedure in disposing of cases, even though he was
a non-lawyer who professed ignorance of the law and his ethical obligations]; Matter of
McGee v. State Commission on Judicial Conduct, 59 NY2d 870 [in a handful of cases,
judge discouraged defendants from exercising their right to counsel and disposed of cases
without guilty pleas or trial]; Matter of Straite, 1988 Ann Report of NY Commn on Jud
Conduct, at 226 [judge showed hostility toward attorneys or defendants in seven cases
and ignored proper legal procedure in their arraignment or disposition, as well as
improperly intervened in three cases in which he or his son had an interest]).
Concurring Opinion By Judge Newton
I concur fully in the majority's findings that respondent committed serious
misconduct and should be removed from office.
I write separately only to underscore the gravity of the misconduct found with respect
to Charge II. Respondent repeatedly made inappropriate comments concerning gender
and race which are antithetical to the role of a judge. Such remarks cast doubt on a
judge's ability to fairly decide all cases before the court (Matter of Schiff v. State
Commission on Judicial Conduct, 83 NY2d 689, 692).
Opinion By Mr. Goldman In Which Mr. Coffey and Mr. Pope Join
I concur, with certain qualifications, in the Commission's determination that Judge
Duckman committed judicial misconduct. I dissent, however, from the Commission's
determination that Judge Duckman be removed from the bench. I believe that in
consideration of all the facts and circumstances in this case, the appropriate sanction is
censure.
I agree with the majority that Judge Duckman committed serious misconduct in the
disposition of 16 cases. Judge Duckman, over the objection of the prosecutor, in knowing
violation of law, dismissed 13 cases for purported legal insufficiency of the complaint
111
and one case in the interest of justice, and adjourned two cases in contemplation of
dismissal. Most of these improper dispositions occurred after the prosecutor rejected the
judge's suggestion as to what he believed was an appropriate disposition of the case.
The Legislature has enacted a statutory scheme in which a court may not accept a
plea of guilty to a lesser included crime (see, CPL 220.30[1]) or impose an adjournment
in contemplation of dismissal (see, CPL 170.55[1]) without the consent of the prosecutor.
n1 Further, the legislative scheme permits the District Attorney to condition the court's
acceptance of a plea to a lesser offense on the imposition of a specific sentence. (See,
People v. Farrar, 52 NY2d 302).
n1 A judge need not receive the prosecutor's permission to dismiss a case in the
interest of justice, and may make such a motion himself. (See, CPL 170.40[2]). However,
there are substantive requirements for such a disposition, many of which were not met
here. (See, CPL 170.40[1]).
Judge Duckman's apparent disagreement with the legislative allocation of power to
the District Attorney was not an acceptable basis for him to impose without the required
consent of the prosecutor what he believed to be an appropriate disposition. As a judge,
however much he disagreed with the statutory scheme, he had an obligation, if not to
respect it, at least to follow it.
I also agree that Judge Duckman committed misconduct in his intemperate namecalling of prosecutors and insensitive remarks, n2 although I believe that was
considerably less serious than his misconduct involving the disposition of cases. That he
did so in an effort to cajole prosecutors to agree to what he believed to be a just
disposition or in a mentoring effort to make them better lawyers is no excuse. A judge,
especially when dealing with young and inexperienced and often sensitive attorneys,
should forego ad hominem comments.
n2 Although I reluctantly accept the referee's implicit findings on credibility, I find
his report inadequate. It contains no explicit credibility findings, although by having
sustained every allegation urged by staff counsel except one involving the alleged
impropriety of a speech by Judge Duckman (and thus not involving a credibility
determination), the referee implicitly made every credibility determination against Judge
Duckman. The report fails to make explicit credibility findings even when the allegation
is based wholly on the testimony of a single witness, a prosecutor, and was contradicted
by not only Judge Duckman but also a defense attorney who was a witness to the incident
in question.
The uniform acceptance of the veracity of every witness who testified against Judge
Duckman, and the concomitant near-uniform rejection of all those who testified for Judge
Duckman, without any explanation, is troubling. In view of the referee's "peculiar
advantage of having seen and heard the witnesses," (People v. Prochilo, 41 NY2d 759, at
761), however, I accede to the referee's apparent credibility evaluations (although not
necessarily to his findings of fact in other areas). In any case, the vast majority of the
allegations in this case is based on undisputed evidence, such as court transcripts, and not
on disputed witness testimony.
112
I disagree, however, with several of the majority's findings that Judge Duckman's
speeches were inappropriate. A judge, especially in the congested criminal courts of New
York City, has a responsibility to dispose of cases in order to allow the courts simply to
function. In this regard a judge should be allowed considerable leeway in speaking to
attorneys to urge or cajole them to reach a disposition. I further believe that, in
recognition of the importance of an independent judiciary, this Commission should be
extremely cautious in its condemnation of judicial speech. I do believe, however, that
when judicial speech includes abusive personal attacks, it goes beyond permissible
bounds. n3 I make a distinction between unnecessary and gratuitous personal abuse,
which I believe generally constitutes misconduct, and speech, however dramatic,
expressing a judge's view of the appropriate role of the prosecutor or other aspects of the
criminal justice system or of the case before the court, which I believe is within the
bounds of propriety. For instance, I believe it is misconduct to call a prosecutor a
pejorative term such as "Nazi" (see specification 6) but it is not misconduct to point out
that bail in amounts less than $ 750 serve only to incarcerate "poor people" (see
specification 23[a]).
n3 I also disagree with the majority's determination that Judge Duckman made
statements indicating bias in domestic violence cases. Even if every allegation in this
area, as set forth in Appendix D to the Determination, is accepted as true, they fall far
short of establishing bias.
Judge Duckman's misconduct, however serious, I believe, does not, in light of all the
circumstances in this case, mandate removal. While he committed a considerable number
of acts of misconduct, none of them resulted in deprivation of liberty. (Cf., Matter of
LaBelle, 79 NY2d 350 [judge censured for in at least 24 cases knowingly improperly
committing defendants to jail] and Matter of Sardino, 58 NY2d 286 [judge removed for
misconduct in 62 cases, including failing to set bail as required, over a two-year period]).
None were motivated by self-interest. All of his improper dismissals involved
misdemeanors, comparatively minor crimes. It is significant that on no occasion did the
prosecutor find Judge Duckman's erroneous dismissal of a complaint serious enough to
warrant an appeal to a higher court.
Further, the extent of Judge Duckman's misconduct must be considered in light of the
intense scrutiny of him, apparently covering five years, by the Kings County and Bronx
County District Attorneys. Both of these large law offices apparently kept dossiers of
Judge Duckman's purported misconduct. n4 While the number of instances of misconduct
is considerable in absolute numbers, it is not so great in light of the tens of thousands of
cases Judge Duckman handled in those five years. Moreover, with the exception of one
claimed act of misconduct involving his submission of an instruction on self-defense for
jury consideration after telling the prosecutor prior to summation he would not charge the
jury on that defense (see, Determination, Appendix D, paragraphs 6-9), the acts of
misconduct do not involve Judge Duckman's conduct at trial or at hearings.
n4 As a practical matter, only a large institution such as a district attorney's office is
capable of cataloging a large list of complaints. By mentioning this, I do not criticize the
prosecutors' offices; the compilation of complaints of judicial misconduct is a proper
function of such an office. I do believe that the Commission should, however, evaluate
113
the seemingly large number of incidents of potential misconduct in the context of this
intensive scrutiny.
While precedent in the area of judicial misconduct is rarely a clear guide because of
the fact-intensive nature of each case, precedent does seem to favor a lesser sanction than
removal. In LaBelle (supra), decided five years ago, the Court of Appeals, albeit by a
split vote, overturned a Commission determination of removal and imposed the sanction
of censure upon a judge who on at least two dozen occasions had knowingly wrongfully
incarcerated individuals before any determination of their guilt, sometimes for periods
longer than the maximum sentence permissible after conviction. That behavior, which
resulted in censure, appears to me to be more egregious than Judge Duckman's
misconduct.
Lastly, I do not believe that this Commission should ignore the impact of the removal
of Judge Duckman on the independence of the judiciary. This case should not be
considered in a vacuum. It was triggered by complaints by the Governor and Majority
Leader of the State Senate as a result of Judge Duckman's bail decision in the Benito
Oliver case, which this Commission has rightly found to have been properly within the
judge's discretion. Not one of the incidents of misconduct in this case had been reported
to the Commission before that time. Following the vast amount of publicity reporting the
criticism of and the Commission complaint against Judge Duckman, there has been,
according to testimony at the hearing of this matter, a discernible increase in the numbers
and percentages of defendants incarcerated because of bail set beyond their reach.
Criminal Court judges, understandably concerned about personal attacks from political
figures, have, according to the attorneys practicing in that court, set bail beyond the
amounts they did previously. Thus, many more arrestees were detained prior to trial or
disposition because of their inability to make bail.
I am fearful that the removal of Judge Duckman may be perceived -- wrongly I
believe and hope -- as a reprisal for what some contend was a lenient (and ultimately
tragically unfortunate) bail decision. While I hope that judges will not view Judge
Duckman's removal as a threat to their ability to make determinations, including bail
decisions, which they believe are fair and appropriate without fear of personal or political
consequences, I am not sanguine. Judges, however conscientiously they perform their
duties, are merely human. They, like every employee -- whether executive or laborer -fear demotion, reassignment or termination. Especially in view of the genesis of this
investigation, I believe that the removal of Judge Duckman will have a detrimental effect
on judicial independence. n5 A frightened judiciary is not an independent judiciary.
n5 During oral argument Commission staff counsel maintained that the removal of
Judge Duckman would have no effect on the independence of the judiciary. Mr. Stern
stated, "I don't see that this should have any effect on any other judge of the Criminal
Court because they know, as you will be able to tell them, that within a broad range, they
can act in accordance with their own discretion. Some tilt to the left and some tilt to the
right. That's all right, that's part of the system, but where you get an extreme like this,
beyond the outer limits, it cannot be accepted." (Transcript of oral argument, p. 11).
What concerns me is precisely the effect the removal of Judge Duckman might have
on those "extremes." Judges should not have to worry whether their decisions go
114
"beyond" what some political figure or judicial conduct commission believes is "the outer
limits." They should feel free to exercise their discretion within the law as they believe is
fair and just without fear of personal consequences.
I am frankly unsure of what, if any, weight the Commission should give to the
potential impact of its determination on judicial independence. On balance, however, I
believe that it is a proper factor for the Commission's consideration. The Commission has
a responsibility to take especial care not to intrude on judicial independence any more
than required to fulfill its constitutional oversight function. (See, Preamble to Rules
Governing Judicial Conduct, 22 NYCRR Part 100: ". . . The rules are to be construed so
as not to impinge on the essential independence of judges in making judicial decisions.")
It should not be blind to the ramifications of its decisions. Concern for judicial
independence, while certainly not determinative, weighs in favor of a sanction less severe
than removal.
According to the testimony of witnesses for both the Commission and respondent,
Judge Duckman has shown outstanding qualities. He is knowledgeable, intelligent,
diligent and caring and possesses an unusual empathy and concern for the accused who
appear before him. Even though he has committed serious judicial misconduct, in light of
all the facts and circumstances in this case, even without any consideration of its impact
on judicial independence, I believe the appropriate sanction is censure.
Dissenting Opinion By Judge Thompson
In my view, a jurist who has sat on over 50,000 cases should not be removed for
misconduct in only 19 cases. I vote that respondent be censured .
115
In the Matter of Lorin M. Duckman, a Judge of the Criminal Court of the City of
New York, Kings County, Petitioner. State Commission on Judicial Conduct,
Respondent.
Court of Appeals of New York
Argued April 28, 1998;
Decided July 7, 1998
SUMMARY
Proceeding, pursuant to NY Constitution, article VI, §22 and Judiciary Law §44, to
review a determination of respondent State Commission on Judicial Conduct, dated
October 24, 1997, that petitioner should be removed from the office of Judge of the
Criminal Court of the City of New York, Kings County.
HEADNOTE
Judges--Removal from Office--Independence of Judiciary
Petitioner, a Judge of the Criminal Court of the City of New York, who willfully
disregarded the law, abused the power of his office and engaged in injudicious behavior,
is removed from office. Removal is the appropriate sanction in view of the substantial
record of petitioner's intentional disregard of the requirements of the law in order to
achieve a personal sense of justice in particular cases before him, coupled with the
substantial record of improper courtroom conduct and unresponsiveness to concerns
flagged for him. While concerns centering on a threat to the independence of the
judiciary arise here (in that the Commission's investigation of petitioner was triggered by
a firestorm of public criticism generated by a separate tragedy, as to which, in the end,
petitioner's rulings were found to be a proper exercise of judicial discretion), in this
particular case removal does not imperil the independence of the judiciary. Wrongdoing
in connection with initiating an investigation could not insulate an unfit Judge; any such
wrongdoing must be otherwise redressed. On the merits of this case, the judiciary, the
Bar and the public are better served when an established course of misconduct is
appropriately redressed and an unfit incumbent is removed from the Bench.
TOTAL CLIENT SERVICE LIBRARY REFERENCES
Am Jur 2d, Judges, § §17-20.
Carmody-Wait 2d, Officers of Court §§ 3:81, 3:92, 3:96-3:98.
NY Jur 2d, Courts and Judges, §§306, 341, 342, 348, 352, 440, 441, 443.
ANNOTATION REFERENCES
116
Power of court to remove or suspend judge. 53 ALR3d 882.*142
POINTS OF COUNSEL
Ronald G. Russo, New York City, and Richard W. Levitt for petitioner. The Referee
failed to make findings sufficient to sustain the sanction of removal; the evidence, under
any objective analysis, supports no sanction greater than censure. (Matter of Quinn v
State Commn. on Judicial Conduct, 54 NY2d 386; Victor Catering Co. v Nasca, 8 AD2d
5; Matter of VonderHeide, 72 NY2d 658; Matter of Reeves, 63 NY2d 105; Matter of
Waltemade, 37 NY2d [a]; Matter of Roberts, 91 NY2d 93; Matter of McGee v State
Commn. on Judicial Conduct, 59 NY2d 870; Matter of Cunningham, 57 NY2d 270;
Matter of Kiley, 74 NY2d 364; Matter of Shilling, 51 NY2d 397.)
Gerald Stern, New York City, Robert H. Tembeckjian and Jean M. Savanyu for
respondent. I. Petitioner engaged in egregious misconduct in that he intentionally violated
provisions of the Criminal Procedure Law, conveyed the appearance that he lacked
impartiality, and repeatedly made highly improper statements. (People v Douglass, 60
NY2d 194; Matter of David PP., 211 AD2d 995; Pennsylvania v Mimms, 434 US 106;
People v Robinson, 74 NY2d 773.) II. Petitioner should be removed from office. (Matter
of Shilling, 51 NY2d 397; Matter of Aldrich v State Commn. on Judicial Conduct, 58
NY2d 279; Matter of Sims, 61 NY2d 349; Matter of Sardino v State Commn. on Judicial
Conduct, 58 NY2d 286; Matter of Reeves, 63 NY2d 105; Matter of Droege, 129 App Div
866, 197 NY 44; Matter of Capshaw, 258 App Div 470, 1053; Matter of McGee v State
Commn. on Judicial Conduct, 59 NY2d 870.) III. The dissenting opinions do not provide
a basis to impose a lesser sanction than removal from office. (Matter of LaBelle, 79
NY2d 350; Matter of Sardino v State Commn. on Judicial Conduct, 58 NY2d 286; Matter
of Sims, 61 NY2d 349; Matter of VonderHeide, 72 NY2d 658.) IV. Petitioner's brief
repeatedly misconstrues the record and fails to provide a basis to impose a lesser sanction
than removal.
Russell M. Gioiella, New York City and Thomas H. Burt for New York Criminal Bar
Association, amicus curiae. I. A political system founded on the rule of law requires an
independent judiciary. (Matter of "John", 61 Misc 2d 347; United States v Will, 449 US
200; Young v United States ex rel. Vuitton et Fils, 481 US 787; Supreme Ct. v
Consumers Union, 462 US 1137; Stump v Sparkman, 435 US 349; Welch v State of New
York, 203 AD2d 80; Mullen v State of New York, 122 AD2d 300, 68NY2d *143 609,
480 US 938; Arteaga v State of New York, 72 NY2d 212; Matter of Catanise v Town of
Fayette, 148 AD2d 210.) II. The scope of the Commission's investigation and the
Commission's findings and recommended sanction create the appearance of political
influence. III. The removal of Judge Duckman will have a chilling effect on judicial
independence.
Scott H. Greenfield, New York City, for New York State Association of Criminal
Defense Lawyers, amicus curiae. I. The maintenance of charges for political reasons is
contrary to sound public policy. II. The sanction of removal is inappropriate and unduly
harsh under the facts and circumstances.
117
OPINION OF THE COURT
Per Curiam.
The State Commission on Judicial Conduct has determined that petitioner, since April
1991 a Judge of the Criminal Court of the City of New York (Bronx County, 1991-1994;
Kings County, 1994-1996), engaged in various acts of misconduct demonstrating a
pattern of injudicious behavior that renders him unfit to continue in office. Given
petitioner's acknowledgment before us of many of the alleged acts of wrongdoing, the
central issue on his appeal to this Court is one of appropriate sanction: should he be
removed from office or censured? Like the Commission, we conclude that removal is the
appropriate sanction.
I.
In a Formal Written Complaint dated June 5, 1996, the Commission charged that
petitioner had willfully disregarded the law, displayed intemperate demeanor, abused the
power of his office and exhibited bias against the prosecution. With 363 specifications,
the Complaint made two formal charges. Charge I asserted that between October 1991
and February 1996 petitioner
"in the exercise of his judicial duties, willfully disregarded provisions of law that
resulted in the improper dismissal of criminal charges, delivered ad hominem criticisms
and injudicious lectures to assistant district attorneys that unfairly attributed to them
improper and harsh values and judgments in their role as prosecutors and made
intemperate, derisive and otherwise inappropriate comments to *144 assistant district
attorneys. ... [B]y reason of the foregoing, [petitioner] abused the power of his office,
displayed evident bias against the prosecution, and acted in a manner inconsistent with
and prejudicial to the fair and proper administration of justice."
Charge II alleged that between May 1992 and December 1995, petitioner engaged in
certain specific acts of "intemperate and injudicious conduct." Petitioner denied all
wrongdoing.
On November 6, 1996, Matthew J. Jasen, appointed by the Commission as Referee,
commenced hearings that continued over a period of 20 days. The evidence included the
testimony of 67 witnesses (29 for petitioner, 38 for the Commission), consuming more
than 4,000 transcript pages, and 200 exhibits. In addition, the record before us includes a
"Book of Letters," 112 letters largely from practitioners who appeared before petitioner-both as prosecutors and as defense counsel--attesting to his personal and professional
qualities.
On May 28, 1997, the Referee filed his Report, a 157-page document summarizing in
detail the evidence with respect to each alleged act of misconduct, annotated to the record
(for the most part transcripts of court proceedings conducted by petitioner, and
118
petitioner's own testimony).
In his "Findings of Fact" the Referee found that petitioner had committed all but one of
the acts of misconduct charged (he sustained all but five specifications; two were
withdrawn by the Commission). As "Conclusions of Law" the Referee determined that
petitioner had violated the State Constitution, as well as specified provisions of the Code
and Rules of Judicial Conduct. He further rejected the notion that it is common practice
for Judges of the Criminal Court to engage in the misconduct found, and even if it were,
each Judge individually "must abide by the ethical standards required of judges in the
unified court system, and neither calendar congestion nor a judge's frustration excuses or
mitigates the pattern of misconduct reflected in these findings of fact and conclusions of
law." Finally, the Referee concluded that petitioner's "expressed belief in the propriety of
his undisputed conduct, as set forth in the findings as to Charge [II], demonstrates a
failure to recognize that such conduct was improper, and a failure to appreciate the proper
roles of a Judge and a prosecutor in the criminal justice system."*145
Commission counsel then moved to confirm the Report and for a determination that
petitioner be removed from office. Petitioner opposed the motion.
Petitioner waived confidentiality and on September 11, 1997, the Commission heard oral
argument in a public session, at which both petitioner and his counsel appeared.
Thereafter, the Commission considered the record of the proceeding and made findings
of fact, concluding that petitioner violated several provisions of Canons 1, 2A and 3 of
the Code of Judicial Conduct as well as the Rules Governing Judicial Conduct. Charges I
and II were sustained insofar as they were consistent with the Commission's findings
(several additional specifications of the Commission's complaint were not sustained),
petitioner's misconduct was deemed established, and the Commission held that petitioner
should be removed from office. A 50-page Appendix to the Commission's Determination
describes each of the specifications of misconduct found by the Commission.
All 11 members agreed that petitioner had engaged in serious misconduct by his
knowing disregard of the law and by his intemperate, disparaging name-calling of young
prosecutors and insensitive remarks. The Commission, however, issued five separate
opinions, and it split seven-to-four on the issue of sanction. While the seven members
agreed unanimously on the wrongdoing warranting removal, three would have gone
further in their findings--two members underscoring petitioner's "consistent and
outrageous disregard of the law," and a third underscoring "the gravity of the misconduct
found with respect to Charge II" and the fact that petitioner "repeatedly made
inappropriate comments concerning gender and race which are antithetical to the role of a
judge." Of the four Commission members who voted for censure rather than removal, one
expressed the view that "a jurist who has sat on over 50,000 cases should not be removed
for misconduct in only 19 cases." The other three, while agreeing that petitioner had
committed serious judicial misconduct, asserted that, given all of the facts and
circumstances, the appropriate sanction was censure.
After careful review of the evidence, we conclude that the Commission's determination
119
sustaining the charges is supported by a preponderance of the evidence and that the
sanction of removal is warranted (NY Const, art VI, § 22; Judiciary Law § 44).*146
II.
In our view, the credible evidence--indicating wrongdoing both in connection with case
dispositions and in court proceedings generally--was sufficient to support the
Commission's findings of misconduct. Given the voluminous record, as well as the
extensive factual digests already set forth both in the Commission's Determination and in
the Referee's Report, [FN1] we will not particularize all of the individual incidents but
instead will more broadly indicate the categories of misconduct into which they fall.
FN1 While petitioner attacks the Referee's Report as insufficient because it does
not make explicit credibility findings, we note that the facts supporting the
determination were largely established by documentary evidence, such as court
transcripts of proceedings (which required no credibility determination) and
petitioner's own testimony.
Misconduct in Connection with Case Dispositions: Largely consisting of transcripts of
court proceedings before petitioner, the evidence establishes that petitioner willfully
disregarded the law in disposing of the criminal charges in 16 cases: 13 dismissals for
facial insufficiency, one purportedly in the interests of justice, and two adjournments in
contemplation of dismissal (ACDs). Cases were dismissed without notice or an
opportunity for the prosecution to be heard, without allowing an opportunity to redraft
charges, without requiring written motions, and in the case of ACDs, without the consent
of the prosecutor. What is significant for present purposes is both that petitioner
dismissed these cases in knowing disregard of requirements of the law (see, e.g., CPL
140.45, 170.30, 170.35, 170.40, 170.45, 170.55, 210.45), and the abusive, intemperate
behavior he manifested in dismissing those cases, at times not permitting the attorney to
make a record of an objection either to the disposition or in response to the accusations.
In the overwhelming number of these cases it is clear that petitioner dismissed
accusatory instruments for facial insufficiency because the prosecutor refused to agree to
petitioner's requests for an ACD or to offer a plea to a violation. In others, petitioner
simply believed that the cases should not be prosecuted. Petitioner explained to the
Commission that "there were times where [he] did things in the interests of justice, using
the guise of facial insufficiency" to dispose of a case when he "thought it was right to do
it." In his words:
"Sometimes in an effort to do justice, I used the vehicle of dismissals for facial
insufficiency without *147 making defense attorneys put their motions in writing,
without giving the people an opportunity to amend or redraft, and sometimes without
giving the people an opportunity to be heard fully."
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Illustratively, in one case where defendant was charged with menacing in the third
degree for pointing what appeared to be a gun at children, at arraignment petitioner told
the prosecutor "it's an ACD or it's dismissed." Petitioner refused to allow the prosecutor
to present his argument as to why the accusatory instrument was in fact facially
sufficient, denied his request that the dismissal motion be in writing and, after warning
him not to "just come up with some nonsense and tell me you want the opportunity to
redraft," petitioner denied the prosecutor's request to rewrite the accusatory instrument.
Petitioner also cautioned the prosecutor that he should "ACD and maintain the peace."
When the prosecutor refused, petitioner dismissed the charge on concededly improper
grounds. The prosecutor's reply, "Over the People's objection," evoked the following
diatribe:
"THE COURT: Please don't say that. It's not over your objection. My
objection is that you can't stand here and act like a lawyer. How are you
going to proceed in this case? It's not over your objection. You are
supposed to come into court--don't smile, put that down and look at me--I
said to look at me, Mr. Petrillo. I am going to tell you what offends me. I
tell you fifty times, it's not over your objection, you are given an
opportunity to be heard. When you can't make out the charges, the charges
are dismissed. These are people's lives. Based on that nonsense, you had a
person go to jail. What am I supposed to say to you, about the lack of
respect that I have for you prosecuting a person, when you don't have a
case? You don't have an objection. You are just mouthing some words that
somebody told you, for no reason, and insulting me, and I am insulted and
I don't want to hear it again.
"MR. PETRILLO: I did not intend to insult-"THE COURT: Did I ask you to talk; did I? You told me it was over your
objection, and I am telling you what my objection is and I speak last. He
does it all the time, and you do it all the time and lawyers *148 don't do
that. They stand up here and do what they are supposed to do. You can't
come up here, with a facially insufficient complaint, and say 'we are
moving to dismiss or we are ACD'ing it.' It's too bad we don't have more
who do. The case is over. I am not listening to you. Move away. Next
case. Don't do it again. If you smile, you are going to find out what power
I really have. Do you understand that? Do you understand that; yes or no?
"MR. PETRILLO: Yes, I do."
A transcript from another case reflects a similar colloquy between
petitioner and two prosecutors:
"THE COURT: You want to ACD? Dismiss or ACD. That is your choice.
"MR. SACK: Judge I am not prepared to do either right now.
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"THE COURT: You have a reason for that? Is there something I said-that was wrong?
"MR. SACK: Judge, I am reviewing the write-up.
"THE COURT: I think I gave you five minutes to look at it and--Ms.
Rice, you have a problem? Stand up. I didn't ask you to talk.
"MS. RICE: Do I have a problem, your Honor?
"THE COURT: I didn't ask you to talk. Then leave the courtroom and
solve your problem.
"MS. RICE: You want me to leave now?
"THE COURT: Don't you shirk and give me weird looks, okay.
"MS. RICE: I apologize, your Honor, if I gave-"THE COURT: Here we go again. You want to dismiss or ACD the
cases, Mr. Sack?
"MR. SACK: Judge, I see that a count is not charged. I therefore, with the
Court's permission, move to add that to the Complaint at this time-"THE COURT: Your application is denied. You charged him with this.
ACD or dismiss. If you want to re-arrest *149 him or go, go to their
houses and charge them with the Administrative Code violation. Are you
ready to do it?
"MR. SACK: With all due respect, your Honor, the factual allegations in
the complaint do make out-"THE COURT: Didn't I just dismiss your application? You want me to-you want to say it five more times? When I ask you and I rule that is it. Go
on to the next point.
"MR. SACK: My next point, Judge, is to ask for bail.
"THE COURT: Charges dismissed. Good day."
Apart from knowingly disregarding procedural requirements of the law to reach his
desired result, petitioner on his own dismissed a drunk driving prosecution, over the
prosecutor's objection, where he thought a conviction would be unlikely, [FN2] and
assumed facts where his own life experience suggested police misconduct. Court
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transcripts, for example, show petitioner in one case surmising that "defendant had taken
a beating for causing two police officers to chase him for three blocks." There having
been no prior mention of a beating in the transcript, during the hearing before the Referee
petitioner explained that his belief was based on the fact that defendant "looked rather
disheveled."
FN2 Defendant had slurred speech, red eyes and a blood alcohol content of .08%.
Petitioner admitted before the Referee that he knew that a .07% blood alcohol
content constitutes prima facie evidence of driving while impaired (see, Vehicle
and Traffic Law § 1195), but maintained that "it's not illegal to drink and drive."
Explaining further, petitioner testified that there needs to be a "reasonable
relationship between the drinking and the driving to show that the alcohol ...
somehow affected the individual's ability to operate the motor vehicle. ... Absent
some proof that the drinking affected the driving you can't get a conviction."
Petitioner therefore dismissed the case.
Again, in another proceeding, petitioner speculated on the record: "Somebody in
a car with a gun, police officer goes to the car and they don't move--the cops then
try to do something to get them out ... [w]hat they did to get them out of the car,
whether they were abused, grabbed, hit, berated." And in yet another, where
defendant was charged with obstructing governmental administration and
disorderly conduct based on allegations that he had interfered with his brother's
arrest, court transcripts indicate that petitioner insisted that the prosecutor agree to
an ACD. When the prosecutor refused, petitioner asked defense counsel for a
motion and dismissed *150 the charges. In response to questioning before the
Commission, petitioner admitted that he did not give proper notice before
dismissing the charges, but it was his opinion that defendant only pushed the
officer to protect his brother from injury. He knew his view was the correct one
because he had "talk[ed] to a lot of people" and had heard from defense counsel
"what was going on here." Petitioner explained: "I read things into cases and I'm
not wrong about these things."
In yet another matter, the accusatory instrument charged defendant with assault in the
third degree and harassment based on allegations that defendant "struck [the victim] with
closed fist in the face, causing swelling and bruising to the face and to suffer substantial
pain and to be alarmed." Petitioner argued that the prosecutor did not allege facts to make
out an assault and described the alleged punch in the face as a "push": a "push is not an
assault ... It's harassment." After defendant pleaded guilty to harassment, petitioner asked
defense counsel whether he wanted to move to dismiss the assault charge. Although the
prosecutor argued that the victim "received swelling and bruising to the face" and
suffered pain, petitioner rejected the prosecutor's argument as a "conclusion," and
dismissed the misdemeanor assault for facial insufficiency.
In addition, petitioner knowingly disregarded statutory requirements in dismissing
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charges in the interest of justice, and twice imposed an ACD without the consent of
prosecutors, berating them in the process. For example, the dismissal in the interest of
justice involved a charge of theft of services for allegedly entering the New York City
subway, in the Bronx, without paying a fare; defendant at the time had a similar charge
pending against him in New York County, and four prior class A misdemeanor
convictions. When the prosecutor refused petitioner's request for a plea to disorderly
conduct, with time served, petitioner lectured her about the need for jobs and health care,
said she was not "doing justice" and was being "unreasonable" and dismissed the case, in
knowing disregard of the requirements of a written motion for such relief and reasons for
such dismissal set forth on the record (see, CPL 210.45, 170.40, 170.45).
Misconduct in Court Proceedings Generally: The 16 cited instances of knowing
disregard of the law are not the only credible evidence supporting the charges. Well
beyond those proceedings, the Commission documented instances of petitioner's
inappropriate behavior in his dealings with persons appearing before him, demonstrating
impatience and intolerance,*151 even at times ordering prosecutors who disagreed with
him out of the courtroom.
Petitioner, for example, subjected prosecutors to harsh, personal criticisms when they
would not accept his view as to the "worth" of a case. Petitioner admitted to the
Commission that he chastised prosecutors for their bail recommendations because he did
not want to be criticized for setting low bail. As one prosecutor reported in testimony
before the Referee, after his bail recommendation petitioner accused him of "making him
look bad in front of the audience." Petitioner asked another prosecutor if her bail
recommendations were the "result of [her] middle-class background"; another was
criticized as "too lofty" to appear in his court; another as having "no guts." Petitioner's
lectures about the unfair actions of "your society" or "your government" at times elicited
laughter or applause in the courtroom.
Petitioner conceded that on several occasions he made derisive remarks in open court
referring to prosecutors' allegiance to their office policies, calling them "good little
soldiers," "good little soldier boys," "mannequins" and "puppets," or commenting that
they were "earning another stripe on the arm" or "notch on the belt" every time they put
someone in jail. In open court, he called them nicknames, such as "Princess" or "Princess
Nancy," "Mr. Nuisance," and "Marshal Dillon" or "the Marshal." As lawyers testified,
they felt belittled, degraded and demeaned by petitioner's open-court sarcasm and
ridicule. [FN3]
FN3 The former Chief of the Bronx Criminal Courts Bureau, Chief Assistant
District Attorney in the Bronx, First Deputy Bureau Chief of the Criminal Courts
Bureau in the Bronx and Bureau Chief of the Criminal Court in Brooklyn all
testified that, based on complaints by others and, in some cases, direct
observation, they repeatedly spoke with petitioner about the need to moderate his
courtroom behavior. Petitioner acknowledges conversations with them, and
admits to knowing that prosecutors from time to time ordered transcripts after his
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outbursts. Petitioner denies, however, having prior notice of the alleged
wrongdoing. If in fact none of these indicators was sufficiently pointed to reach
petitioner, that would underscore the problem that typified his misconduct.
In the case of one prosecutor who is visually impaired, petitioner heatedly
accused him of having broken his lectern by leaning on it. Petitioner, who was
admittedly "distraught," "upset," "shocked" and "dismayed" by the damage to the
lectern, told the prosecutor that he would "teach" him "how to properly stand up
in court." Petitioner concedes that his law clerk "calmed [him] down" by assuring
him that the lectern could be fixed. A year later, when petitioner ran into the *152
prosecutor after business hours at a restaurant bar near the courthouse, he said in a
manner that was "not kidding" or "jovial"--"he's the one who broke my lectern."
Petitioner told one female prosecutor that she was "too sexy" to wear flat shoes and that
she had "nice legs" (petitioner denied the first comment but acknowledged the second);
he admittedly told another that she looked better in shorter skirts. In a case involving two
African-American women, court transcripts reveal that petitioner, attempting to explain
to a prosecutor why his disposition of the case--an ACD--was appropriate, stated: "At the
risk of sounding racist and sexist, [the case] is really just two women, and you know
sometimes certain things are just cultural." While petitioner strongly denies any racist or
sexist bias, he admits making "isolated statements" which he characterizes as
"aberrational in character," reflecting a familiarity not appropriate to his position. [FN4]
FN4 While these comments may not be indicative of a racist or sexist bias
harbored by petitioner, they are highly inappropriate and completely antithetical
to the role of a Judge. Indeed, even isolated instances of such inappropriate
behavior cast doubt on a Judge's ability to be impartial and fair-minded.
Incidents such as these, plainly inappropriate behavior for any Judge, are multiplied
throughout the evidence and persuade us that the charges have been sustained.
III.
Having concluded from the proven facts that petitioner willfully disregarded the law,
abused the power of his office and engaged in injudicious behavior, we reach the crux of
the present appeal: whether removal or public censure is appropriate (see, NY Const, art
VI, § 22 [d]). We agree with the Commission that petitioner should be removed.
"[T]he purpose of judicial disciplinary proceedings is 'not punishment but the imposition
of sanctions where necessary to safeguard the Bench from unfit incumbents' " (Matter of
Reeves, 63 NY2d 105, 111, quoting Matter of Waltemade, 37 NY2d [a], [lll]). The actual
levels of discipline to be imposed by the Court for judicial misconduct are, in the end,
"institutional and collective judgment calls" (Matter of Roberts, 91 NY2d 93, 97). They
125
rest on our assessment of the individual facts of each case, as measured against the Code
and Rules of Judicial Conduct and the prior precedents of this Court.*153
Not surprisingly, in the intensely fact-specific inquiry before us the parties differ in their
view of the more analogous precedent. Petitioner urges us to look to Matter of LaBelle
(79 NY2d 350), where the Court concluded that the Commission had overstated both the
number and the nature of petitioner's transgressions regarding commitments without bail
and then rejected the determined sanction of removal in favor of censure. The
Commission, in contrast, considers more pertinent Matter of Sardino v State Commn. on
Judicial Conduct (58 NY2d 286, 292), where the Court upheld a determination that the
individual under review had " 'so distorted his role as a judge as to render him unfit to
remain in judicial office'."
While finding no four-square precedent--each judicial misconduct appeal truly stands on
its own facts--we note that several of petitioner's arguments are analogous to arguments
made by the Judge, and ultimately rejected by this Court, in Sardino (see also, Matter of
Reeves, 63 NY2d at 110-111, supra). We underscore, however, that this case is neither
Sardino nor LaBelle.
Like petitioner here, Judge Sardino argued that he in fact felt no bias, nor was he
motivated by animosity or self-interest. As this Court observed, however, the perception
of impartiality is as important as actual impartiality: Judges must conduct themselves "in
such a way that the public can perceive and continue to rely upon the impartiality of those
who have been chosen to pass judgment on legal matters involving their lives, liberty and
property" (Matter of Sardino v State Commn. on Judicial Conduct, 58 NY2d at 290-291,
supra; see also, Code of Judicial Conduct Canon 2 [A]; 22 NYCRR 100.2 [a "judge shall
avoid impropriety and the appearance of impropriety in all of the judge's activities"]; 22
NYCRR 100.2 [A] [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"]).
Similarly, petitioner in Sardino argued unsuccessfully that the number of abuses--62
over a two-year period--should not be viewed in isolation from his seven-year career on
the Bench. As the Court noted, the number of abuses was not insignificant and, if viewed
in the context of Sardino's entire career, would at best "establish that his behavior was
erratic, which itself is inconsistent with a Judge's role" (58 NY2d at 291, supra). Here,
too, petitioner urges that we credit his otherwise unblemished performance in a highstress, high-volume court. The Court, however, has resisted any numerical yardstick for
determining *154 unfitness (see, Matter of Hamel, 88 NY2d 317; Matter of Esworthy, 77
NY2d 280; Matter of VonderHeide, 72 NY2d 658; Matter of Sims, 61 NY2d 349).
Rather, it must be the nature of the proven wrongdoing as well as the numbers that
determine the appropriate sanction.
Moreover, in Sardino, as we do here, the Court questioned the veracity of the argument
that many other Judges engaged in similar misconduct and concluded that, in any event,
such evidence would be irrelevant. "Each Judge is personally obligated to act in
126
accordance with the law and the standards of judicial conduct. If a Judge disregards or
fails to meet these obligations the fact that others may be similarly derelict can provide
no defense" (Matter of Sardino v State Commn. on Judicial Conduct, 58 NY2d at 291,
supra; see also, Code of Judicial Conduct Canons 1, 3 [A] [1]; 22 NYCRR 100.1 [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"]; 22 NYCRR 100.3 [B] [1]). Nor are
Judges, in the interest of alleviating regrettable court congestion--or indeed, even in the
interest of empathy for defendants-- free to ignore the law in order to weed out cases they
personally feel are unworthy of prosecution or clogging the system.
Petitioner's contention that his harsh treatment of young prosecutors was simply a
consequence of his efforts to educate them to be more just is similarly unavailing. As the
Commission noted: "[t]eaching need not involve angry screaming and humiliating
invective and is not effective when the lesson is that a judge may abandon the law and
abuse judicial authority."
Of significant concern as well--and particularly relevant to the question of appropriate
sanction--is petitioner's refusal, throughout the Commission's initial investigation and the
proceeding before the Referee, to acknowledge the impropriety of his behavior in
wrongfully dismissing cases (see, Matter of Aldrich v State Commn. on Judicial Conduct,
58 NY2d 279, 283; Matter of Sims, 61 NY2d 349, 356; Matter of Shilling, 51 NY2d
397). As petitioner made clear in his testimony, he believes dispositions made in
contravention of CPL requirements are permissible if they serve his definition of justice
or conserve court resources by removing unworthy cases from an overburdened calendar.
Testifying before the Referee, petitioner explained: "I think about what cases should be in
this system *155 and which cases shouldn't be in the system, and I think judges get to
make that decision, and ... if somebody comes and brings it to your attention and
complains or asks you to do something, you can do something about it."
When petitioner was questioned before the Commission and the Referee about his
handling of a number of cases, he was reluctant to acknowledge that the CPL required
him to allow prosecutors to amend facially insufficient accusatory instruments. Even
more troubling, however, are the numerous instances when petitioner testified that he had
not abided by the CPL's amendment and notice requirements in disposing of a case, but
still maintained that he had not been wrong in doing so. For example, petitioner explained
before the Referee that although he "may have been wrong in reaching the decision [to
dismiss in People v Shaw]," he believed that he "still did the right thing." Similarly, when
petitioner was questioned during the hearing about People v Zhao--a case which he later
acknowledged he "should not have dismissed"--petitioner refused to admit that he had not
acted in accordance with the law in disposing of the matter. Instead, petitioner insisted
that his "legal ruling was correct." In People v Samuels, although he admitted to
dismissing the charges "for the wrong reason," petitioner again refused to acknowledge
before the Referee that he had not handled the matter in accordance with the law. [FN5]
127
FN5 Samuels provides another example of petitioner's contradictory positions
when testifying about his misconduct during the proceedings leading up to this
appeal. When questioned about Samuels during the Commission's initial
investigation, petitioner defended his actions in dismissing the case and was
reluctant to admit that his intemperate treatment of prosecutors in that matter was
inappropriate. During the hearing before the Referee, petitioner testified that his
conduct was "a terrible example of [his] judicial demeanor and behavior" and that
he was "embarrassed that [he] was the judge that sat on [the] case." Petitioner also
testified that he "dismissed the charges for the wrong reason" and "didn't handle
[the case] properly." In his Post-Hearing Memorandum, which was submitted to
the Referee, petitioner stated that he had "properly dismissed the complaint" and
had acted "within the proper ambit of his powers and duties." In his brief to this
Court, petitioner referred to Samuels as "an example of a dismissal, with its
attendant conduct, which [petitioner] agrees was terribly mishandled by him."
Additionally, with regard to several instances of clearly intemperate behavior, petitioner
refused to admit that his comments were inappropriate. For example, petitioner testified
during the hearing that he does not consider his asking a prosecutor whether he got his
law license "on the back of an orange juice carton" to have been insulting. Moreover,
despite *156 considerable evidence to the contrary, petitioner maintained that his
courtroom "was always run with courtesy."
In making the difficult choice between censure--returning petitioner to the Bench--and
removal, we find these examples particularly pertinent when combined with the
numerous instances when Bureau Chiefs or Chief Assistant District Attorneys of Bronx
and Kings Counties spoke with petitioner about his loss of temper and demeaning
treatment of prosecutors who appeared before him. Petitioner sometimes acknowledged
the inappropriateness of what he had done and said he would try to calm down, yet the
misconduct continued. This evidence-- not mentioned by the Commission's dissenters-suggests that the confirmed findings of improper conduct are not isolated, acontextual,
subjective instances, and it supports the inference that petitioner lacks the insight and
self-control to make fundamental changes in his attitude or judicial temperament. [FN6]
FN6 Plainly the objective here is not to require contrition, bended knee or
forfeiture of spine in return for the privilege of continued service as a member of
the judiciary (see, Bellacosa, J., dissenting opn, at 169), but rather to attempt to
assess petitioner's fitness based on his prior conduct.
The foregoing leads us to conclude that the Commission has not, as in LaBelle,
overstated the seriousness of petitioner's wrongdoing. Rather, the substantial record of
petitioner's intentional disregard of the requirements of the law in order to achieve a
personal sense of justice in particular cases before him, coupled with the substantial
record of improper courtroom conduct and unresponsiveness to concerns flagged for him,
128
persuade us that removal is the appropriate sanction.
Finally, we note several weighty concerns voiced by petitioner, by the dissenters and by
amici relating to the origin of the Commission's investigation. The investigation was
triggered not by appeals or complaints of wronged litigants or lawyers, but by a firestorm
of public criticism generated by a separate tragedy, as to which, in the end, petitioner's
rulings were found to be a proper exercise of judicial discretion, not a basis for discipline.
As petitioner points out, but for that tragedy--as to which he has been fully exonerated-likely no charges would have been lodged against him. There is, moreover, the deeply
troubling suggestion--not established on this record--that prosecutors kept a "dossier" on
petitioner, microscopically tracking him.
These concerns, which we share, center on a threat to the independence of the judiciary,
a cornerstone of our democracy, *157 posed by unwarranted criticism or the targeting of
Judges. Judges must remain free to render unpopular decisions that they believe are
required by law. Valid and vital though these concerns surely are, the difficult issue that
confronts us in this matter is how to sanction the serious misconduct--now fully
documented before us--that the firestorm has exposed. Plainly, wrongdoing in connection
with initiating an investigation could not insulate an unfit Judge; any such wrongdoing
must be otherwise redressed. We are satisfied that in this particular case removal, rather
than censure, does not imperil the independence of the judiciary. Indeed, on the merits of
this case, the judiciary, the Bar, and the public are better served when an established
course of misconduct is appropriately redressed and an unfit incumbent is removed from
the Bench. [FN7]
FN7 This matter does not involve "second-guessing" the adjudicative work of
Judges, nor does it open a new avenue for Commission intrusion into that work
(see, Bellacosa, J., dissenting opn, at 164, 168). Matter of Greenfield (76 NY2d
293) involved a different issue--the time limits within which Judges should
dispose of pending matters, an issue properly left in the first instance for the
Judges themselves and secondarily for court administrators. Here the issue is not
whether petitioner's decisions were right or wrong on the merits, but rather
repeated, knowing disregard of the law to reach a result and courtroom conduct
proscribed by the rules governing judicial behavior.
Accordingly, the determined sanction of removal should be accepted, without
costs.
Titone, J.
(Dissenting). By accepting without qualification the harsh sanction of removal for Judge
Duckman's indiscretions, the majority has sent a message that the State's judicial
disciplinary procedures are susceptible to manipulation by public officials and that
Judges whose rulings displease those public officials may find themselves singled out for
129
exceptional, and possibly ruinous, scrutiny. Because the outcome in this case strikes at
the heart of the notion of judicial independence which is so critical to our tripartite
system of government, I feel compelled to express my dissenting views.
The instant disciplinary proceeding did not begin in a vacuum, and its outcome cannot be
assessed without reference to the political maelstrom that generated it. It is clear from the
public record that petitioner was targeted for investigation and formal discipline because
of the publicity he received in connection with a routine bail decision he made in a
misdemeanor prosecution involving one Benito Oliver. Some three weeks after his
release on bail, Oliver located his former girlfriend, *158 Galina Komar, shooting her and
then himself. The following day, the incident was reported by the New York City tabloids
in sensational headlines which implied that petitioner was somehow to blame for the
tragic incident. One tabloid blared a headline indicating that petitioner had said "[e]ven I
beat my wife"--a remark that he never actually made.
The lurid newspaper coverage was followed only a few days later by a letter from the
State Senate Majority Leader to the State Commission on Judicial Conduct demanding
that petitioner's fitness be investigated immediately. At the same time, Governor Pataki
initiated his own "investigation" of petitioner. These actions by two of the State's most
powerful elected officials were part of a larger political climate in which Judges were
increasingly being scapegoated. Beginning around the time of the Komar killing and
continuing throughout the spring and fall of 1996, journalists specializing in sensational
reportage and politicians anxious to capitalize on public fear combined to lay the blame
for urban crime at the feet of "criminal coddling" Judges (see generally, Goshko,
Accusations of Coddling Criminals Aimed at Two Judges in New York, Wash Post, Mar.
14, 1996, at A3; Olch, Soft on Crime? Not the New York Court of Appeals, NYLJ, May
6, 1996, at 1, col 1; Reske, ABA Commission Defines Areas of Judicial Independence,
82 [Dec. 1996] ABA J, 99; Reske, Pointed Resignation Judge Blasts Politicization of
Judiciary, 82 [July 1996] ABA J, 40; Seymour, Jr., Defending the Judiciary--An Open
Letter to the Bar, 38 [No. 2] NY St Bar Assn--St Bar News, at 1, col 2 [Mar./Apr. 1996];
Spencer, Protection Order Abuse Elevated to Felony, NYLJ, Aug. 9, 1996, at 1, col 3).
As the onslaught from the media continued, the Governor's office sent representatives to
the Kings and Bronx County District Attorneys offices, apparently to obtain additional
negative background material on Judge Duckman. These representatives were given
access to one or more files containing transcripts of proceedings before Judge Duckman,
which appear to have been ordered and preserved for some unspecified future use.
Notably, some of these transcripts involving dismissed criminal charges were shown to
the Governor's investigators without regard to the confidentiality rules that apply to
sealed records (see, CPL 160.50). Having collected a list of complaints from trial
assistants about petitioner's handling of their cases and his mistreatment of individual
prosecutors, the investigators compiled a nine-page report that *159 was ultimately
forwarded to the Judicial Conduct Commission. [FN1]
FN1 The Commission subsequently obtained a judicial order directing these
130
records be unsealed so that they could be used in evidence at the judicial conduct
proceeding against Judge Duckman.
On February 28, just two weeks after the Komar killing, the Governor made a highly
publicized demand that the Judge who released the killer be suspended and that formal
disciplinary proceedings against him be commenced. This demand was accompanied by
an ultimatum, announced at a gubernatorial press conference, that the Commission must
either remove petitioner from office within 60 days or the Governor would initiate
impeachment proceedings before the State Senate (see, NY Const, art VI, § 23 [b]).
On April 22nd, just a few days shy of the Governor's deadline, the Commission acted by
announcing the filing of formal charges against petitioner. None of the charges were
based on petitioner's bail decision in the Oliver case. Instead, the charges in question
were cobbled together from a handful of incidents selectively drawn from tens of
thousands of cases petitioner handled during his five-year tenure on the criminal Bench.
The majority's opinion details the evidence that led to the Commission's determination
that petitioner should be removed, and there is no need to repeat the substance of that
evidence here. Suffice it to say that, despite the fact that some 10,000 pages of transcripts
were subpoenaed and scoured for petitioner's misdeeds, there were no clear "smoking
guns"; there was only a list of petty offenses involving petitioner's "bullying" of
prosecutors, his intemperate behavior and his improper dispositions of criminal charges
in some 16 cases. The latter "misconduct" was evidently motivated by petitioner's view,
expressed repeatedly on the record, that the particular prosecutions did not serve the
interests of justice. Significantly, none of the 16 dismissed prosecutions in issue was
deemed sufficiently important or meritorious to warrant an appeal, and none of the 19
incidents of intemperance were deemed sufficiently serious to warrant a disciplinary
complaint.
What emerges from this sequence of events is a very disturbing picture. Given the timing
of the investigation and the severity of the sanction imposed, the conclusion is
inescapable that the Judicial Conduct Commission bowed to the Governor's political
threats and allowed itself to be used to advance the *160 agenda of the Judge baiters who
were feeding off the media frenzy.
No one--including petitioner--disputes that some of the specific behavior revealed by the
evidence before the Commission constitutes impropriety and may even be worthy of
some sanction. The argument here is not that petitioner's performance has been beyond
reproach, but rather that he has been subjected to an extraordinary degree of microscopic
scrutiny under circumstances that cannot help but serve as an object lesson to other
Judges faced with the possibility of making an unpopular decision. While the existence of
intemperate conduct by other judicial officers does not justify any of petitioner's
excesses, it is also true that few Judges who, like petitioner, have handled tens of
thousands of cases--and sometimes as many as 100 to 200 a day--could withstand the
kind of intense spotlight that has been aimed at petitioner's record.
131
The implication of the present disciplinary proceeding is that Judges whose rulings
displease the political powers that be may be subjected to a modern-day witch hunt in
which their records are combed for indiscretions, their peccadillos strung together to
make out a "substantial record" of misconduct and their judicial "sins" punished with the
ultimate sanction of removal from office. Indeed, in this case, the inference that petitioner
has been removed at least in part because of his interest in protecting individual
defendants' rights is reinforced by the Commission's emphasis on his purportedly
antiprosecution bias and his statements criticizing the District Attorneys' policies. It is
clearly contrary to the goal of judicial independence to suggest that a Judge may be
singled out for discipline because of his or her expressed views on questions affecting the
criminal justice system. [FN2]
FN2 While actual bias or even the appearance of bias is unacceptable in a Judge
(see, Matter of Sardino v State Commn. on Judicial Conduct, 58 NY2d 286, 290291; Matter of Spector v State Commn. on Judicial Conduct, 47 NY2d 462, 466),
it is commonplace for Judges to express their own viewpoints during the course of
the proceedings before them. For example, sentencing minutes often contain
statements by Judges about the evils of crime and the impact that criminal
conduct has on society. Similarly, in pretrial proceedings, Judges frequently
interject their own concerns about such policy questions as "overcharging" and
prosecutorial delays in processing cases. Although it would clearly be improper
for a Judge to bend or stretch the law to advance his or her views on such
subjects, it would unrealistic--and probably even undesirable--to require total
neutrality in judicial decision-making.
Our system of laws and the public's confidence in the judiciary rest in large measure on
the notion that our Judges are *161 free to rule on the issues before them without fear of
retaliatory removal. Without that freedom, there is no assurance that the choices Judges
make in situations often involving unpopular alternatives have the necessary level of
integrity. There are few among us who have the courage and fortitude to take judicial
stands at the risk of public humiliation and loss of office. It is for that reason that our
State Constitution mandates lengthy terms of office for Judges and permits removal of
Judges only after impeachment by the Legislature or for grave cause after a fair
adjudicative process administered by the State Commission on Judicial Conduct (NY
Const, art VI, § § 22, 23; see, Matter of Cunningham, 57 NY2d 270, 275; Matter of
Steinberg, 51 NY2d 74, 81).
The perception arising from this case that the Commission is itself susceptible to
political influences cannot help but undermine the confidence of the State's Judges in
these constitutional protections and chill the free exercise of their judicial discretion. A
precedent has now been set in which politicians and local prosecutors have demanded the
removal of a widely respected sitting Judge for what they perceived as "criminal
coddling" and have succeeded in that demand. Now that the Commission has
132
demonstrated its willingness to be hospitable to such machinations, it seems likely,
indeed inevitable, that Judges will be intimidated and will frequently be tempted to err on
the side of the prosecution in debatable situations rather than risking Judge Duckman's
fate. Nothing could be more inimical to the health of our State's system for administering
criminal justice.
The record here unquestionably reveals that Judge Duckman was occasionally guilty of
intemperate conduct and that he knowingly misused his authority to terminate 16
prosecutions in order to achieve what he believed to be the ends of justice. Accordingly,
since these matters were brought to the attention of the disciplinary authorities, some
form of sanction should now be imposed. It seems to me, however, that Judge Duckman's
record of service as a whole does not indicate any unfitness for judicial office. To the
contrary, the hearing testimony and the flood of letters that were made available to the
Commission indicates that overall he has been an intelligent, hard-working,
knowledgeable and compassionate jurist. Furthermore, to the extent that he demonstrated
intolerance or intemperance, he did not do so out of malevolent or venal *162 motives;
[FN3] rather, his actions were clearly motivated by compassion (see, Matter of LaBelle,
79 NY2d 350). Finally, Judge Duckman has apologized for his excesses and has
indicated that they will not occur again. Thus, there is no need to invoke the extreme
sanction of removal; the lesser sanction of censure will suffice. Since the use of the
removal power here not only deprives the public of a conscientious and hard-working
Judge but also signals an unhealthy tolerance on the part of this Court for the heavyhanded tactics of would-be "Judge bashers," I dissent from the Court's acceptance of the
Commission's imposed sanction.Dissenting opinion per Bellacosa, J.
FN3 Although Judge Duckman was charged with having made offensive racist
and sexist remarks, the majority has wisely eschewed reliance on that aspect of
the charges, since it is apparent from the record that Judge Duckman is not a
person who harbors such biases.
Bellacosa, J.
(Dissenting). I, too, respectfully disagree in this separate dissenting opinion with the Per
Curiam determination to remove this Judge from his judicial office. From my personal
examination of this entire record, the evidence of sustainable misconduct does not rise to
the extreme level of egregiousness, demanded by this Court's precedents, for that ultimate
sanction to be imposed. Moreover, the precedential implications of this removal decision
are daunting and disturbing (a) insofar as the future scope and operations of the
Commission are concerned, and (b) for the futuredischarge of adjudicative
responsibilities, especially by trial level judicial officers who have to maintain actual and
perceptual independence from all outside influences.
This Court has consistently and appropriately set the bar of removal very high: it is "an
extreme sanction [that] should be imposed only in the event of truly egregious
133
circumstances" (Matter of Cunningham, 57 NY2d 270, 275; compare, Matter of Roberts,
91 NY2d 93, with Matter of Skinner, 91 NY2d 142, 144; see also, Matter of Kiley, 74
NY2d 364, 369-370; Matter of Steinberg, 51 NY2d 74, 83). Our precedents ordain that
"removal should not be ordered for conduct that amounts simply to poor judgment, or
even extremely poor judgment" (Matter of Cunningham, supra, 57 NY2d, at 275
[emphasis added]).
The heavily relied-on set of specifications in the instant case boils down to the
overarching charge that Judge Duckman improperly handled 16 criminal proceedings: 13
dismissals for facial legal insufficiency, one dismissal in the interests of justice, and two
adjournments in contemplation of dismissal. *163 The accusations are that the Judge
knowingly and wrongly dismissed these cases, without notice or an opportunity for the
prosecution to be heard, without allowing a chance to redraft charges, without requiring
written motions, and in the case of ACDs, without the consent of the prosecutor.
These extrapolated rulings were statutorily unauthorized and irregular devices; they
constitute improper means to reach debatably correct ends. While they should not be
countenanced, they do not equal disciplinary misconduct at the egregious level for
removal from office. They absolutely do not represent a pattern of conduct in any
realistic context and appraisal of the full record of this Judge's career. Rather, they are
qualitatively and quantitatively exceptional, measured by a fair and proportional analysis
of the full gamut and docket of any Judge, serving, as this Judge did, in such high volume
and high intensity assignments, locales and courts. Thus, these few, never-appealed and
disciplinarily resurrected remnants of cases are not so out-of-line as to justify removal of
this Judge from his judicial office.
While I agree generally that this Court should resist "any numerical yardstick for
determining unfitness" (Per Curiam opn, at 153-154), our precedents provide some
measuring guideposts of the over-all judgmental quality and quantity necessary to elevate
misconduct to a level of gravity that is required to impose the final and lifetime sanction
of removal (compare, Matter of LaBelle, 79 NY2d 350 [rejecting removal where the
Judge failed to set bail without legal justification in approximately 24 cases], with Matter
of Sardino, 58 NY2d 286, 289-290 [upholding removal where the Judge (1) "consistently
failed (in 62 cases) to inform the accused of the right to counsel and failed to conduct
even a minimal inquiry to determine whether they were entitled to assigned counsel," (2)
"regularly abused his authority with respect to setting bail," and (3) "often assumed an
adversarial role at arraignments by questioning defendants"]; compare also, Matter of
Skinner, 91 NY2d 142, supra [rejecting removal and imposing censure], with Matter of
Roberts, 91 NY2d 93, supra [accepting removal]).
The record evidence in the instant case comes nowhere near the "distortion of the
judicial function" that is reflected in Matter of Sardino (supra). This is especially so when
weighed and evaluated within the precedential and judgmental universe of the multitude
of other cited cases. To be sure, each disciplinary case with its sanction assessment is
unique and different. Yet, the instant case fits closest to Matter of LaBelle (supra), where
*164 the majority of this Court rejected the removal recommendation and imposed a
134
serious, public censure. I consider of very high concern and weight, therefore, that the
breakthrough precedent established by this case will seriously and widely expand the
reasonably balanced guidance that the governing principles have ordained--up to now
that is. And let no one make any mistake as to the grave, plenary responsibility invested
exclusively in this Court by the State Constitution: the Commission cannot remove a
Judge; only this Court can, absent impeachment.
This case also presents an additionally disturbing and distinct precedential concern in
this allocation of power--i.e., that the Commission could infer that it has a new obligation
and intrusive authorization to poke into the adjudicative work of Judges, legitimatized by
this Court's ultimate precedential acceptance of a determined sanction recommended by
the Commission majority, insofar as it rests on these quintessentially decisional matters
of dismissed cases (compare, Matter of Greenfield, 76 NY2d 293).
In Greenfield, this Court rejected the Commission's sanction, even of censure, where the
record disclosed "serious administrative failings in petitioner's handling of the cases in
issue, but no persistent or deliberate neglect of his judicial duties rising to the level of
misconduct" (id., at 295). Although a Judge's failure to promptly dispose of pending
matters is generally subject to administrative correction, the Commission pushed the
envelope to urge "that at some point a Judge's failure to dispose of pending matters must
be viewed as misconduct within its jurisdiction" (id., at 297). This Court emphatically
rejected the Commission's misguided incursion, concluding that it "would overlap the
jurisdiction clearly granted to those administering the courts" and "would permit the
Commission to intervene in the administrative process whenever it believes that a Judge
has failed to dispose of pending matters within unspecified time limits in an unspecified
number of cases and on a case-by-case basis" (id., at 297). The instant case represents a
far deeper incursion, insofar as the 16 now-disciplinarily challenged rulings are
concerned, because the overlap and intervention drive into the very heart of the
adjudicative administration and delivery of justice by a Trial Judge.
Furthermore, I am unable to accept that removal here may be justified under an
exacerbation theory, related to a series of "instances of petitioner's inappropriate behavior
in his dealings *165 with persons appearing before him, demonstrating impatience and
intolerance, even at times ordering prosecutors who disagreed with him out of the
courtroom" (Per Curiam opn, at 150-151). These unfit-to-serve characterizations are
associated with and derived from a collection of misdeeds mixed with indecorous and
indiscrete comments, admonitions, sarcasm and wisecracks. The utterances made in the
rough-and-tumble world of the New York City arraignment and criminal courts are
sharply contested, acontextual, selective and subjective. They also do not satisfy, on
proportional record analysis, the substantive gravity needed for removal from judicial
office (compare, Matter of Agresta, 64 NY2d 327 [upholding censure]).
My reading of this record supports a contrary, or at least reasonably competing, point of
view that the substance and credibility concerning many of the specifications of
misconduct range from questionable-to-weak, and are subject to significant conflicting
evidence favorable to the Judge's conduct and over-all performance of his judicial duties.
135
The record fairly and fully appraised, provides reasonable-to-strong mitigating and
countervailing evidence, in substantive detail and in credibility, which contradicts the
negative debasings of the Judge's character and the unfounded projection of his
permanent unfitness for judicial office.
For example, various witnesses called by the Judge, and even by the Commission,
portray the Judge as an unbiased and knowledgeable Judge. A good deal of criticism has
been heaped on him for bias against some prosecutors whom he apparently found
deficient in performance; indeed, none of them filed any contemporaneous complaints or
appeals against him anywhere until he became publicly vilified. They did, however, keep
negative material in personal files over the years that was retrieved and projectiled into
his disciplinary proceeding.
Thus, I consider it fair to select some particular competing evidence that I find
particularly relevant and cogent on the sanction weighing issue. Barry Kamins, a former
prosecutor, Chair of the Grievance Committee for the Second and Eleventh Judicial
Districts, past president of the Brooklyn Bar Association, and recent cochair of that
Association's Judiciary Committee, testified that he had observed Judge Duckman in
court several hundred times over the years and that the Judge "is more knowledgeable
about criminal law, in my opinion, than any other judge in the Criminal Court in Kings
County" (Transcript, vol XVI, at 3324). He also testified that he never heard the Judge
"shout or yell," but at most "heard him speak *166 in a frustrating tone, which is not
novel" (id., at 3331). He testified that the Judge "holds both sides accountable" and that
there is no "double standard" (id., at 3333).
Former Judge and Acting Justice Alain Bourgeois, now a practicing attorney, also
testified:
"From what I observed, he dealt with [issues] effectively, and although he was
demanding of respective counsel, although he obviously held them to a high standard, I
believed that he held them to an appropriate standard and an equivalent standard. I think
the frustration that one feels sitting in the Criminal Court is difficult to contain; I didn't
see it spill over in any way in Judge Duckman's handling of cases that I observed."
(Transcript, vol XVI, at 3354.)
Juda Epstein, a former prosecutor who appeared before the Judge regularly, testified that
the Judge "was absolutely down the line fair," that he did not treat the prosecution more
harshly or differently from the way he treated the defense (Transcript, vol XVIII, at 3759,
3796). In fact, he testified that in one case, the defense attorney complained that the
Judge was "too pro prosecutorial" (id., at 3796).
Gerald Allen, former Kings County prosecutor and former Deputy Bureau Chief of the
Criminal Courts Bureau, called by the Commission, testified on cross- examination that
the Judge was "definitely ... the best trial judge in the building" (Transcript, vol VII, at
1388), and that he exhibited "almost exclusively good behavior" (id., at 1389).
136
These necessarily selective appraisals illustratively and strongly negate the
mischaracterization of this Judge by the majority at the Commission on Judicial Conduct
level (7 of 11 Commissioners). No matter how many favorable letters are assembled,
however, they cannot make the case one way or the other on the appropriate sanction; no
more, I respectfully submit, than the necessarily incomplete materials the Commission
majority and this Court's Per Curiam opinion focus and rely on, and adopt. The whole
record must be evaluated.
It is, nevertheless, quite significant to me that more than 100 attorneys wrote to the
Commission in early 1996 to protest the publicized ultimatums for the removal of Judge
Duckman--concerning a media-intensified ruling that proved not to be misconduct. This
varied array of personal letters and direct appraisals are part of the whole record. They
depict an individual *167 significantly different from and somewhat better than the
"mean- spirited" and "bullying" Judge, sobriqueted by the Commission as some
caricaturized martinet (see, Commission majority opn, at 7). The characterizations seem
to me neither accurate, nor fair.
At least for some balance, it should be observed that the numerous evidentiary letters in
the "Book of Letters" are neither from partisans, nor are they of merely character
reference quality. They are from ordinary lawyers, court employees and others
representing a wide cross section of people and professionals who worked in and around
and observed Judge Duckman in the performance of his judicial duties over long and
different periods of time. Surely, their real evidence is worthy of some consideration and
greater weight than this material garnered from the Hearing Referee or the Commission
itself-- which apparently was naught.
These letters also provide and constitute empirical and directly relevant evidence
presented as part of the defense case before the Commission on the sanction weighing
issue. The credibility and lack-of-outcome interest of these many letter writers (thus
enjoying some reasonable and creditable professional objectivity) are very illuminating
for those who would look to the whole picture with its varying hues and textures. They
are appropriate to weigh on the sanction mitigation aspects of this particular case, as this
Court is exclusively obligated to do.
In sum, removing this Judge on this record represents a disproportionate redress, when
examined in the dispassionate reflection of the less-than- egregious level of cobbled
misconduct. This is especially so in the balance wheel of these overwhelmingly
favorable, on-the-firing-line source appraisals of the Judge's adjudicative work and good
character.
The genesis, breadth and nature of the exceedingly pervasive investigation of this Judge
by the Commission staff are at least also contextually noteworthy. In my view, these
features raise legitimate concerns and reflect an acutely unfair methodology with
questionable motivation for the Commission's course of action. The diverse perceptions
and evaluations, even among the Commission members, provide an eye opening window
into understanding the skewed and distorted process that propelled itself ultimately into
137
this divided Commission recommendation. Seven members voted to recommend the most
severe sanction, and they were even divided as to some specifications; four *168 of the
11 Commissioners voted for censure only for differing reasons.
The dissenters at the Commission tendered an array of particulars for this Court to
consider in mitigation of the sanction recommendation. They summarized their reasons
for public censure as the sufficient level of redress, for example, as follows: (1) none of
the acts committed resulted in a deprivation of liberty; (2) none of the acts was motivated
by self-interest; (3) all of the improper dismissals involved misdemeanors; (4) on no
occasion did prosecutors find Judge Duckman's knowingly erroneous dismissals of cases
serious enough to warrant complaints to his judicial administrative superiors or even
appeals by them as "aggrieved" litigant parties (though they instead chose to stockpile
grievances in personal files for future retrieval to be used in collaboration with a
drumbeat to remove a Judge for an unpopular decision); and (5) the instances of
misconduct are few compared to the tens of thousands of cases Judge Duckman handled
in his five-year career.
My judgment coincides with that of the dissenting Commissioners: the ultimate sanction
here is disproportionate to the nature, number and gravity of the proven and
acknowledged judicial misdeeds, misspeaks and mishaps. Under the applicable
preponderance of the evidence standard, the case for the removal penalty falls short of the
extreme egregiousness necessary. Since this Court is the only and exclusive guardian of a
neutral and independent adjudication of these matters, it should reject the recommended
sanction. Up to now I have concentrated essentially on the individual justice aspects of
this Court's responsibility to accord to Judge Duckman all his rights of fair procedure and
full review since we are his only court of review.
Now I turn to the twin tower of this Court's role--precedential responsibility. Removal
here will have an inescapably adverse impact in that quintessential universe, as it affects
the vital and vibrant independence of the judicial function and branch of government. The
conduct of Judges and the culture of the operation and decision-making in trial courts will
be necessarily and materially altered and affected by today's decision. Many of the effects
will be hidden from view, buried in the hearts and psyches of Judges as they think, work
and worry their way through a myriad of dockets and rulings, peering or at least seeming
to peer over their shoulders at severely scrutinizing critics, disappointed lawyers,
disgruntled litigants and the second-guessing Commission itself. Other consequences
*169 include emboldening critics towards even more deconstructive attacks on Judges
and their rulings at every turn, twitch and utterance. These combined visible and invisible
consequences cannot help but threaten the independence and damage the integrity of the
jewel of this State's judicial process--actually and perceptually. Fortunately, the judiciary
and judicial process are strong and will survive, and so I agree with the Per Curiam
opinion's observation that this case and circumstance do not create a state of peril. Yet,
this does not bode well for the deliberative administration of justice.
Lastly, to the extent made relevant on the sanction determination, this Judge
acknowledged on the record the inappropriateness of many of his actions (compare,
138
Transcript, at 33, 53, 59, 66-68, 80, 81, 86, 97-98, with Per Curiam opn, at 155-156). In
fact, in my view, the over-all tenor of the Judge's testimony and positions before the
Hearing Officer, the Commission and this Court, was apologetic and contrite.
Moreover, this Court's guiding precepts do not demand that Judges who are fighting for
their professional lives and reputations must throw in the towel as part of their "defense"
(compare, Matter of Kiley, 74 NY2d 364, 371, supra [removal rejected and censure
imposed] [adding this Court's wise caution against using "lack of candor" (something I
would deem worse than asserted "lack of contrition") as an aggravating circumstance to
pump up a more serious sanction]). Thus, Judges should not have to "kneel penitently in
the snows of Canossa" before the Commission; Judge Duckman is not Emperor Henry IV
and the Commission is not Pope Gregory VII.
It should suffice that accused Judges should tell the truth, be candid and acknowledge
wrongdoing that they are truly guilty of and to the extent necessary and consistent with
maintaining a defense against wrongful criticisms and charges. Indeed, even an
appropriate measure of remorse and resolve to conform to acceptable judicial behavior
and norms are prudent and useful. On the other hand, Judges surely are not obligated to
plead guilty, no matter what is thrown at them, nor are they expected to rely merely on
the "mercy" of the Commission.
I vote for censure only, because I am unconvinced and unable to pronounce that this
Judge is incorrigibly and irredeemably unfit to serve as a Judge ever again.
Chief Judge Kaye and Judges Smith, Levine, Ciparick and Wesley concur in Per Curiam
opinion; Judge Titone dissents and votes to reject the determined sanction in a separate
*170 opinion; Judge Bellacosa dissents and votes to reject the determined sanction in
another dissenting opinion.
Determined sanction accepted, without costs, and Lorin M. Duckman is removed from
his office of Judge of the Criminal Court of the City of New York, Kings County.*171
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This article is reprinted with permission from the August 26, 1998 edition of New
York Law Journal. ©1998 NLP IP Company
New York Law Journal
August 26, 1998, Wednesday
SECTION: Pg. 1
Budget Boost for Judicial Conduct Commission
By Mark Hamblett
A BIGGER budget and more investigators will expand the reach of the State
Commission on Judicial Conduct, according to the Commission's latest annual report,
released yesterday.
The Commission spent $ 1,736,500 in fiscal year 1997-98, a 2.4 percent increase over
the previous year. The budget is expected to increase this year by 8 percent, reflecting an
increase in staff from 20 to 26 and the move from two to five full-time investigators.
During the past fiscal year, the Commission fielded 1,403 complaints, down 87 from
the previous year. Generally, though, the number of complaints received has been
increasing, and the 1996 total of 1,490 was a record high. The increased staffing levels,
officials said, should allow the Commission to keep up with its workload.
Now in its 24th year, the Commission is adding full-time investigators in its New
York City, Albany and Rochester offices, which Counsel Gerald Stern says will make it
more effective and efficient.
"In past years we were unable to do comprehensive investigations," Mr. Stern said,
adding that even a few years ago, the Commission was unable to do field work on all
parts of New York. "We just didn't have the funds to send investigators into the field . . .
and now we are able to do that."
High-Profile Case
The Commission publicly disciplined 20 judges in 1997 and removed six. A total of
18 judges resigned while under investigation or while facing formal charges.
The most prominent of those removed was Brooklyn Criminal Court Judge Lorin
Duckman. The Commission recommended that Judge Duckman be removed for poor
judicial temperament and because he displayed bias against prosecutors.
"That was unprecedented in many ways -- we have never experienced the extent of
public attention involved in that case, never had a complaint from the Governor and
never been told we had to remove a judge," Mr. Stern said. "We were also working
within a pretty tight time schedule." The investigation lasted 60 days, he said, and
typically, that means "other cases drag."
The Commission has now publicly disciplined more than 400 judges and removed
122 from office since its inception in 1975.
140
Among the issues discussed in the report was the ongoing problem of political
activities by judges.
Cautioning five judges in 1997 on "politically related issues" the Commission noted
such conduct as "endorsing or appearing to endorse other candidates and making claims
or promises of conduct which were unrelated to judicial office and therefore misleading."
The report also noted ongoing problems in small townships upstate, such as judges
conducting arraignments and other proceedings in private, improperly delegating judicial
duties to law secretaries, and demonstrating undue impatience with small claims litigants.
141
CLASS 12: PUBLIC PERCEPTION OF JUDGES AND THE JUDICIAL SYSTEM
Why does public opinion of the courts matter? On a simplistic level, belief in the
wisdom and fairness of judicial decisions is critical to enforcement of judgments in our
judicial system. As Judith Kaye, Chief Judge of the New York Court of Appeals,
warned,
We must take care lest unbalanced discussion heighten public cynicism without
enhancing public understanding. This is not just a 'public relations' issue. Our
democracy depends on a strong court system, and a strong court system in turn
depends on public respect and confidence.18
Judge Harry Edwards raises another concern in the article included in the readings. He
worries that judges will begin to conform to what he contends are inaccurate public
perceptions of judges as political decision-makers. Do you agree with his analysis that
public perceptions can be a “self-fulfilling prophecy”?
An understanding of the widely held perceptions of judges and the judicial
system is also important to lawyering. Increasingly, lawyers are using the media to
"spin" their cases. They are learning to tap into popular perceptions of the system and
use them to their client's advantage both in creating a favorable climate for their case and
in argument to the jury. Professor Sherwin argues that, at the least, lawyers have to come
to grips with popular images of the judicial system.19
So, what is the public perception of the judiciary, and how does the public form
its impression of our judicial system and its opinion of judges? The media--television
18
Gary Spencer, Kaye Warns of Attacks on Courts, N.Y.L.J., Apr. 18, 1996 at 1.
19
Richard K. Sherwin, Picturing Justice: Images of Law & Lawyers in the Visual Media,
30 U.S.F.L.REV. 891 (1996)
142
news, Court TV, and the print media--all contribute to public perception; and, public
perception may be influenced by fictionalized sketches on television and in the movies.
Finally, individuals have direct contact with judges and the courts as witnesses, litigants,
and jurors.
Media coverage of the courts is pervasive. Without question, certain “high
profile” stories on the national level have had a significant impact on the way the public
views the judiciary--Judge Ito’s handling of the Simpson case, the Hill-Thomas hearings
on Capitol Hill, and Judge Baer’s decision in Bayless-- to name just a few.
Think about
your examination of the media coverage of the Duckman and Baer cases earlier in the
semester. Was the coverage accurate? Was it neutral? Was it fair? Did the media
coverage convey a full understanding of the legal issues? As we have noted in
discussions of judicial selection, oversight, and independence, both local and national
politicians have shown willingness to criticize the judiciary. What are the possible
consequences of this outspoken criticism? Where is the line between productive public
discourse and destructive criticism?
One off-shoot of increased media focus on the judicial system is the continuing
debate on cameras in the courts. Does "gavel-to-gavel" trial coverage on television
result in greater public understanding and appreciation of the judicial system than edited
reports in the media? Advocates of cameras in the courtroom contend that it does. They
argue that "...by demystifying the judicial process, television allows the public to become
better informed."20 Steven Brill's21 article in the readings makes the case for allowing
20
Steven A. Holmes, Pondering 2 Trials, Judges Lean to One Conclusion, N.Y. TIMES,
Jun. 7, 1997 at 10.
21
N.B. Steven Brill is the Founder and former CEO of Court TV.
143
cameras in the courts. Thus far, he and other advocates for wider media access to the
courts have not prevailed; and, it appears that their cause was not advanced by full
television coverage of the Simpson criminal trial. Your materials include a state-by-state
analysis of the law regarding cameras in the courts that was done by the New York State
Bar Association Committee charged with reviewing the issue. In the spring of 2001, on
their recommendation, the State Bar ended its opposition to cameras in New York State
Courts. Parts of their preliminary report follow along with current New York State laws
on the issue.
The New York Law Journal reported that an “overwhelming majority” of New
York State judges believe televised coverage of the O.J. Simpson criminal trial damaged
“the public perception of the judicial system” and as a result are opposed to having
cameras in state courtrooms.22 New York judges are not the only members of the
judiciary who became camera shy after the Simpson criminal trial. The judges presiding
over high profile cases across the country have barred cameras from the proceedings. 23
The fallout from the Simpson trial may be even more far-reaching. As an
experiment, New York had allowed camera coverage of court proceedings since 1987,
but the New York "cameras in the courts" bill expired on June 30, 1997. Proposed
legislation to reinstate cameras contained provisions significantly limiting camera access
22
Today's News, N.Y.L.J., Nov. 15, 1995, p. 1.
23
Cameras were barred at the civil trial in the Simpson case, the trials of Timothy
McVeigh for the Oklahoma bombing case, Richard Allen Davis, the killer of Polly Klaas
in Northern California, and Susan Smith for the drowning of her sons in South Carolina,
Holmes, supra note 3.
144
to the courts;24 and, thus far, all legislative efforts to revive camera coverage of the courts
have failed despite the fact that several trial judges, including the judge who presided
over the Diallo trial, have held unconstitutional Section 52 of the New York Civil Rights
law prohibiting cameras in courtrooms. In September 2001, Court TV filed a lawsuit
against the State of New York seeking a declaratory judgment that Section 52 is
unconstitutional. As of printing time, that lawsuit is still pending.
Since 1994, the Judicial Conference of the United States, the policy making body
for the federal judiciary, has opposed televising trials in the federal courts. The policy
was strongly reiterated in 1996. (Note the response to the Judicial Conference policy by
Judges Ward and Leisure in the Southern District of New York.25) While the Judicial
Conference does permit televising appellate arguments with the permission of the circuit,
only 2 of the 13 Federal circuits have opened their doors to cameras.26
Media coverage of actual cases is only one source of society's sense of the judicial
system. Popular culture is also a rich source of impressions of the judiciary. Fictional
depictions of judges and the judicial system abound in books, television, and movies.
Popular culture portrayals of judges present a chicken and egg problem--does popular
culture influence society’s opinion of judges and the judicial system or is it simply a
24
Among the limitations in the proposed legislation was a provision allowing any witness
to veto visual and audio coverage of their own testimony, Gary Spencer, Effort on
Cameras in Courts Dies, N.Y.L.J., Jul. 16, 1997 at 1.
25
Marisol A. v. Giuliani, 929 F.SUPP.660 (S.D.N.Y. 1996); Sigmon v. Parker Chapin, 937
F.SUPP.335 (S.D.N.Y. 1996)
26
Holmes, supra note 4.
145
reflection of current views? Either way, Sherwin believes that an awareness of the
images in popular culture is essential to good lawyering.27
Movies, television, and print coverage of the courts, whether fictional or real, are
all second hand. People can develop first hand impressions of the courts through their
personal experiences as litigants, witnesses, or perhaps more frequently, as jurors or
potential jurors. Recent jury reforms in New York State virtually guarantee that most
citizens will be called for jury duty. Unlike television viewers and newspaper readers,
jurors experience the judicial system as participants. And, unlike litigants and witnesses
who most often participate in the justice system on one side or another, jurors are
neutrals. Do these distinctions matter to the validity of their impressions of the system?
Should the courts consciously think of jury service as a public relations opportunity?
How does your judge treat interactions with jurors and potential jurors? What impression
do you think jurors and litigants, in your part, bring away from their experience in court?
Do you think Clyde Haberman’s frustration with the judicial process is typical of jurors
leaving your court after jury service? Is there anything the judiciary can or should do to
alleviate juror frustration?
While we may disagree about the nature and sources of public opinion of the
judiciary, the implications of pervasive negative views of the court system are too serious
to ignore. Increased litigation and wider jury selection guarantee that more and more
people will have direct contact with the court system. Judges cannot stifle the
"extraordinary barrage of press coverage of court issues,"28 nor can they control their
27
Sherwin, supra note 2.
28
Spencer, supra note 1.
146
fictionalized screen images, but they can improve individual's personal contacts with the
judicial system...and that's a start.
147
Class 12: NOTES & PROBLEMS
1. Movie Images of Judges. We will watch a short video montage of cinema images of
the judiciary over time. Think about recent depictions of judges in movies and on
television. Do you see any patterns? Does popular culture influence society’s opinion of
the judiciary or is it simply a reflection of current public opinion? Think about Judge
Harry Edwards concerns about public opinion influencing the judiciary. Are they valid in
this context?
2. Drafting Exercise. How can a judge who allows cameras in the courtroom insure
litigants a fair trial? What factors should the judge consider in determining whether and
how to televise proceedings? Propose a local rule for your court establishing factors for
judges to consider when determining whether to televise a proceeding and listing possible
limitations judges can place on the media when televising proceedings. [Note the
limitations used by Judges Ward and Leisure.]
3. Jury Duty Discussion. Have you seen any jury trials during your externship? Think
about the trial process from a juror’s perspective. Is jury duty a first hand view of the
judicial system? Jurors are participants in the judicial system. Does their participation in
the process make their observations qualitatively different from television viewers’ and
newspaper readers’?
How does the judge you work with treat interactions with jurors and potential
jurors? New York has recently undertaken a substantial reform of the jury system,
eliminating all exemptions from jury service and attempting to streamline the process to
avoid delays. What policies does your judge have regarding excusing jurors from
service? How does the judge conduct jury selection? Is the process efficient? Does it
148
seem to result in a “fair and impartial jury”? How do you think jurors leaving your court
after jury service feel about the judicial system and the judiciary? Does your judge speak
to jurors after the verdict?
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Copyright (c) 1996 University of San Francisco School of Law
University of San Francisco Law Review
Summer, 1996
30 U.S.F.L. Rev. 891
Picturing Justice: Images of Law & Lawyers in the Visual Media
By Richard K. Sherwin *
"Movies and the law have a lot in common. It's all illusion. Whatever you want them to
see, they see." n1
IT IS NOW WIDELY accepted that our sense of history, like our sense of memory and
self-identity, is in large measure the result of arranging and telling stories. n2 It is
through stories that we construct the meaning of individual and collective experience n3
just as it is through stories that we are moved to blame (or exonerate) others. n4 As Avi
Stachenfeld and Christo- [*892] pher Nicholson note in their contribution to this
symposium issue, "powerful litigators are effective storytellers." n5 But what, we may
ask, makes a legal storyteller effective? What does a good legal story do?
For one thing, it should convey a compelling sense of truth or reality, which is to say,
of verisimilitude. According to literary critic Michael Riffaterre, verisimilitude is "a
system of representations that seems to reflect a reality external to the text, but only
because it conforms to a grammar." n6 Or as cultural theorist John Fiske observes in his
symposium piece:
The nature or truth of an event is determined in part by the discourse into
which it is put, and no event contains its own prescription for the correct
discourse by which to know and communicate it. To put it another way,
any event can be put into discourse in different ways, so the critical
relationship is between the different discursive constructions of that event
.... n7
In short, our cognitive styles, like literary ones, change from one generation to the next
and from one social group to another. What establishes a sense of verisimilitude in a
given text or story, then, is not simply a matter of correspondence to something in the real
world. It also stems from the text's consistency with well-known linguistic usages in a
particular social and cultural context, at a given moment in time. In the above illustrations
truth has been treated as a matter of trained linguistic perception. That too, however, is
subject to change.
The principal storytellers of our culture today are television and film. Effective
storytelling in these media is highly dependent upon visual and aural cues. The legal
storyteller must have a sophisticated understanding of mass communication in order to
165
grasp how truth, law, and justice are constructed in the popular imagination. Only then
can she effectively tell her story before a particular lay audience. On this view, law
cannot be isolated from the influences of the visual mass media and the shifting styles
and content of popular cultural storytelling. In practice, it hasn't been.
Today, savvy lawyers know and are putting to practical use what advertisers and
politicians have known and practiced for quite some time: how to get the message out,
how to tailor content to medium, how to spin the image, edit the bite, seize the moment
on the screen and in the mind of the viewer. To effectively persuade another requires
gaining control over reality. The reality that counts most in this context is the one that
people carry around in their heads: the popular images, stock stories and character types,
the familiar plot lines and recurring scenarios. n8 With such knowledge in hand, the
persuader gains the leverage she needs to mobilize and arrange the mental constituents of
reality making.
Lawyers who are in the business of persuasion, who make a living out of weaving
facts into persuasive narratives, may be viewed as agents of a larger cultural convergence
that is now under way. It is a convergence of mass communication and the multiperspectival, constructive epistemology of postmodernism. For that is what we are seeing
in the proliferation of cinematic and televisual styles of storytelling in the courtroom along with the proliferation of videos, monitors, and computer-generated sounds and
images. And why not? If persuasion is a matter of tapping into the reality that people
carry around in their heads and of emulating the habits of perception and styles of
thought that come with extensive exposure to mass-mediated popular culture, where else
would one turn but to the screen?
As contributor Philip N. Meyer notes, "jurors seem to make sense out of increasingly
complex simulations through references to other imagistic stories." n9 Based on his
own in-court observations, Meyer notes that there is a newly emerging, open-ended legal
storytelling style that is "remarkably influenced by the conventions of popular imagistic
storytelling." n10 In short, the storytelling of contemporary popular culture is finding
its way into court.
Legal reality is being visually projected in a variety of ways inside the courtroom:
from day-in-the-life videos in personal injury cases, to reality-based police surveillance
videos, to civilian and news journalist videos (e.g., of the police in action) and digitalized
reconstructions of the images they contain, n11 to computer graphics and digitally
reconstructed accidents and crime re-enactments, to video montage as a form of legal
argumentation (including the strategic interweaving of commercial feature film footage
and evidentiary material from a case file). The latter montage has even replaced an
attorney's live summation before the jury. n12
Where else can one go but to the screen? It is where people look these days for
reality. And it is the look of reality that they get from the screen that is the object of
persuasion, the look that must be captured to make the image work (for reality's sake,
which is to say, for the sake of verisimilitude). This is what skilled legal video producers
like Stachenfeld and Nicholson are after. As they note, describing a video they made for a
Dallas-based client, Maxus Corporate Company, against New York-based defendants
Ivan Boesky, Martin Siegel, and Kidder Peabody:
166
Through the use of Digital Video Effects ("DVE") editing, we gave the Maxus attorneys
the ability to "fly out" first the New York State flag and from it a highly stylized
organizational chart of Kidder containing Martin Siegel in a central location. Ten or
fifteen years ago, television was a colorful, yet relatively static, medium. The literal
bandwith has not changed; however, motion is not only common, it is expected.
Consequently, it is an integral component of our work. n13
Of course the intermingling of law and popular culture is not new. Nor is the appearance
in court of popular cultural storytelling conventions. Ever since telegraph wires began
knitting this nation together, law has played through the air - often to a rapt national
audience.
Consider for example the 1859 trial of militant abolitionist John Brown, following
his disastrous attempt at Harper's Ferry to instigate a slave insurrection. Assured of
execution, acting as his own counsel, Brown manipulated the trial proceedings to suit his
own purposes. In the process he brought the nation its first mass-mediated trial. n14
The narrative genre that played out before the public, in the culturally ascendant story
form of the Romantic hero, resonated deeply in the popular imagination of the time.
Appealing to the lay public's narrative tastes requires tapping into prevailing cultural
beliefs and expectations about what constitutes good storytelling. Whether it is John
Brown or Johnny Cochran, popular narrative conventions supply courtroom advocates
with crucial information about persuasive story forms and content for lay judgments
about truth and justice. As the contributors to this volume make clear, legal storytelling
may continue unabated inside the courtroom, but its style and content have altered
significantly over the years. The look and sound of truth and justice are not what they
were even a generation ago. The stories told and the storytelling techniques that are in use
reflect constant changes in mainstream culture. These changes include shifts in narrative
genre, in the media by which stories are communicated, and in underlying cultural
tensions that erupt in the course of notorious trials, often bringing into public view deep
normative conflicts that previously lay hidden within the collective unconscious. n15
For example, John Brown's masterful emulation in court of the well-known character
type of the Romantic hero brought to the surface perhaps the deepest cultural
contradiction of his time. How were universal principles of freedom and equality, so
eloquently stated in the Declaration of Independence, to be squared with the legitimation
of slavery embodied in the supreme law of the land? Notably, fifteen years later lawyers
in the year-long adultery trial of Henry Ward Beecher would rouse a seemingly insatiable
public with a different set of narrative beliefs and expectations, reflecting an altogether
different cultural conflict. n16
The injustice of slavery was the issue of the day when Brown's trial unfolded. When
Beecher's turn came to stand before the nation the issue had to do with faith and disbelief,
appearance and deception. Consider Beecher, the nation's foremost preacher, a symbol of
morality and idealism, accused of committing adultery with the wife of New York author
and editor Theodore Tilton. If such a man could do such a thing, the trial subversively
asked, who is exempt? If so bright an exterior as Beecher's belies so dark an interior in
what can we reliably invest our confidence? n17 This clash played out both in court and
167
in the mass media of the time as a battle between competing narrative genres: the world
of romance (with its faith in outward appearances) and the modernist world of suspicion
(with its skeptical search for truths that outward forms often conceal).
It is no different in our day when notorious trials whip up a sense of public fervor
vastly out of proportion to the specific facts of the case. Consider the following scenarios:
a lone (white) gunman shoots four unarmed (black) teenagers in a New York subway;
four (white) Los Angeles police officers are charged with using excessive force in the
arrest of an intoxicated (black) motorist; a (black) celebrity and football icon is charged
with the murder of his (white) ex-wife and her (white) male companion. Only when
viewed in terms of the deeper cultural tensions that these recent cases reflect can we
begin to understand the scope and intensity of the public's interest and emotional
investment in them. Consider the almost mythic level on which these legal dramas played
out - whether it was the case-winning story of the lone vigilante, enforcing order in the
face of unchecked violence (Bernhard Goetz), or the story of the lone black man rising up
against police brutality and racism (Rodney King), or the story of a vigilant jury acting as
public watchdog in the face of a conspiracy of officially sanctioned racism (O.J.
Simpson). n18 Viewed in this way we can begin to appreciate the deep cultural forces
that underlie and animate these and other notorious cases.
Turning our attention then to the recurring images and scenarios that millions of
people see projected daily on TV and silver screens across the nation, images and
scenarios depicting law and lawyers, truth and justice; this is no idle diversion. The
dominant style of narrative representation consistently influences how cases are presented
in court and how they come out, not to mention how they are perceived by an avid
audience among the public at large. The difference today is that to an increasing degree
many of our popular stories of truth and justice do not comply with print-based, linear
narrative forms and genres. They are often non-linear; juxtaposing visual images and
sounds that trigger associations and sentiments embodied in yet other images and sounds.
In short, legal storytelling today reflects the influence of post-literate storytelling, the
storytelling that we find in film and on TV.
There is another difference as well that sets our generation apart from those that
preceded it. Aside from the shift in media from print to visual, the landmark cultural
tension of our time seems to coincide with the growing, media-generated difficulty of
clearly demarcating fiction and reality, of drawing the line between historic events and
their visual representation. Where does the documentary form end and the docudrama
begin? n19 Increasingly, we read one in terms of the other, slipping back and forth
between the two, from the televisual to the real, from history to dramatization, with little
compunction, perhaps without even being aware that the shift has taken place. n20 We
live in a time when TV judges are taken for real ones n21 and law on TV is taken for
law on the books. n22 Cases may be won or lost depending on a trial lawyer's ability to
meet a juror's TV-bred expectations. n23 From what has been said so far, it should
come as no surprise that lawyers are increasingly complying with a new generation of
narrative expectations.
On this view, to start with the stories that are in mass circulation, isolating popular
plot lines, character types and cultural stereotypes, can help us to understand how truth
and justice are being constructed and how these constructions capture belief in the
168
everyday practice of law. This is where law and popular culture converge - in the stories
that are being told by clients, witnesses, and experts, as well as by attorneys, to one
another and to the lay jurors who make up their audience. These legal stories bring us
into contact with a cultural repository of common knowledge and popular belief
concerning law, truth, and social justice in our time.
To study these popular stories and the methods by which they are told leads us to
their source: the popular culture of film and television to which we are all exposed and by
which we are all influenced. Here we seek to uncover the popular myths, images and
storytelling conventions that shape and inform the popular imagination. It is an
imagination that has been stocked with representations produced by and screened on the
visual mass media - as a matter of content (what is shown, and what is left out) and as a
matter of style (how what is shown is made known and made to seem persuasively real).
We study the popular imagination because it is an important source of law: from the
voters who put lawmakers and judges in power, to jurors who determine truth and justice
in jury rooms across the nation. And just as it is the lay public from whom law's
legitimacy ultimately derives, so too it is the public's continued belief and acceptance
upon which law's legitimacy depends. It is the people who in anger may repudiate the law
of the state, who may even make their own law from the streets.
In sum, this symposium aims to open a window onto the popular imagination of our
culture and society as manifested in the ever-changing drama of legal storytelling. The
view that it offers also allows us to look into more shadowy realms that lie at the
intersection of law and popular culture, for we also encounter here a domain of meaning
that often remains hidden beneath the surface of the legal stories being told.
The study of law and popular culture seeks to expand the traditional range of legal
studies. It seeks to include what has often been omitted, such as the feelings, desires,
conflicting impulses and wishes that circulate within the law, from its narrative
construction to its (at times violent) social effects. To recognize this part of legal reality is
to recognize as well the evisceration of the legal fictions that in the past succeeded in
keeping this domain in the shadows. This includes the fiction that law derives from
dispassionate reason, that it is the product of objective analysis disengaged from feeling
or desire, and the fiction that legitimate legal decision making cannot occur in the
absence of deductive or inductive logic, strict causal analysis, and well-reasoned
explanation. Postmodern legal storytelling challenges all of these assumptions.
Watching a film, and to a somewhat lesser degree watching a television screen, can
be compared to gazing upon a mirror, a mirror that reflects what is going on outside as
well as inside the mind. n24 This is a realm that is alive with emotions, fantasies, ideals,
and self-deceptions. Law partakes of this realm when jurors bring their feelings and
fantasies (albeit unwittingly) to the task of crediting one legal story over another and
when they determine how the law shall apply to the story they have chosen to believe.
The shared elements of popular culture supply the materials out of which we construct
self and social realities - they comprise the stories that we live in, and that we live out.
What legal stories are being told, and how are they being constructed? How do
popular images and other storytelling elements affect our sense of ourselves and the
world around us - particularly when it comes to assessing such common legal realities as
169
claims of wrongdoing or criminality? These are the sorts of questions that arise when we
venture into the domain of law and popular culture. It is a domain in which the worlds of
law, film, television, and computer-generated imagery commingle. And because they
commingle, both in and out of court, it is appropriate that we carefully examine the
images and stories that popular culture purveys. For these are the stories that we (often
unwittingly) carry with us into places of power, where they take root and where they help
make up the realities of law and justice to which we are all subject.
The seven articles that follow lay the groundwork and suggest some parameters for
the newly emerging field of law and popular culture studies. These are exploratory works
merely suggestive of the kinds of interdisciplinary studies that may be undertaken in this
area. They may be grouped within three general categories.
1. How Popular Culture Enters the Law
The first four articles canvas some of the ways in which popular culture seeps into the
domain of law. In Avi Stachenfeld and Christopher Nicholson's piece, Blurred
Boundaries, we see a convergence of law and popular culture in the increasing use of
sophisticated litigation tools such as legal videos and computer graphics that emulate
familiar televisual styles of communication and persuasion. A similar convergence can be
seen in the assimilation by trial lawyers of cinematic storytelling styles. This is apparent
in defense attorney Jeremiah Donovan's closing argument to a jury in a complex criminal
case as described in Philip Meyer's article, Desparate For Love II. We witness a similar
blurring of boundaries between legal and popular storytelling in the transformation of
notorious trials into televisual "media events" as described in John Fiske's Admissible
Postmodernity, and in the transformative impact of the visual media on justice when real
cases are subjected to cinematic, entertainment-driven conventions of "truth" or "reality,"
which is described in Charles Musser's Film Truth and The Law.
2. How Law Contributes to Popular Culture
Suzanne Shale probes further the intermingling of law and popular culture by closely
examining the discrete demands of the mass media in the context of writing a trial movie
based on real life events. Specifically, Shale examines "how knowledge of law moves
from the legal to the popular domain, how the dramaturgy of the law itself influences
popular culture, and, further, how the conventions of popular culture form the structure of
popular legal knowledge." n25 In the course of her analysis Shale notes the distorting
effect that the media have on law, legal ideas, and legal ideals. Paul Bergman observes a
similar distorting effect in his contribution, A Bunch of Circumstantial Evidence.
According to Bergman, movies often exaggerate the value of direct as opposed to
circumstantial evidence at trial. Bergman contends that screenwriters are mirroring a deep
popular craving for certainty that expresses itself in the widespread, but false, belief that
eyewitness accounts are inherently more trustworthy than indirect physical evidence.
n26 In this way, Shale and Bergman strike an important critical note, alerting us to the
perils that accompany a convergence between legal and popular cultural norms and
storytelling conventions.
170
3. How Popular Culture Judges the Law
A third category of topics in the field of law and popular culture describes how popular
cultural representations interpret and assess legal reality. In this respect, popular culture
may be viewed as a valuable source of insights concerning current and historic legal
norms and practices as well as a critical source of alternative normative possibilities and
ways of thinking about law, lawyers, and conflict resolution in society. For example, in
the last symposium contribution, Cape Fear: Law's Inversion and Cathartic Justice, I use
a comparative analysis of the popular original film version of Cape Fear and Martin
Scorsese's remake thirty years later as a cultural barometer indicating a significant shift in
deep cultural beliefs about the relationship between law and violence and the meaning of
justice in society.
Conclusion
What new directions law and popular culture studies may subsequently take, and what
new insights it may provide along the way, rests in the hands of those who enter into
dialogue with the contributors to this symposium issue and with others who share the
belief, as I do, that this work deepens our understanding of law in contemporary society.
FOOTNOTES
* Professor of Law, New York Law School. J.S.D., Columbia University, 1989;
LL.M., Boston College, 1985; J.D., Boston College, 1981; B.A., Brandeis University,
1975.I would like to express my appreciation to Harriet Inselbuch and Dean Harry
Wellington of the New York Law School for their support of this venture into new
territory. Thanks are also due to the members of the University of San Francisco Law
Review for their extraordinary help in making the conference Picturing Justice: Images of
Law & Lawyers in the Visual Media, held at the University of San Francisco School of
Law, March 22-23, 1996, such a success. I also would like to express my thanks to the
conference panelists, whose stimulating insights from diverse fields of expertise have
helped break new ground in the study of law and popular culture. Finally, I wish to thank
Professor John Denvir of the University of San Francisco School of Law for his
dedication to this project and for making work on the planning, presentation and postproduction stages of the conference and symposium issue so enjoyable.
n1. L.A. Law (NBC television broadcast, Nov. 18, 1992).
n2. See Roger C. Schank & Robert P. Abelson, Scripts, Plans, Goals and
Understanding: An Inquiry into Human Knowledge Structures (1977); Donald P. Spence,
Narrative Truth and Historical Truth: Meaning and Interpretation in Psychoanalysis
(1982); The Persistence of History: Cinema, Television, and the Modern Event (Vivian
C. Sobchack ed., 1996); Hayden V. White, Tropics of Discourse: Essays in Cultural
Criticism (1978).
171
n3. See Jerome S. Bruner, Acts of Meaning (1990); Nelson Goodman, Ways of
Worldmaking (1978).
n4. See W. Lance Bennett & Martha S. Feldman, Reconstructing Reality in the
Courtroom: Justice and Judgment in American Culture (1981); Anthony Amsterdam &
Randy Hertz, An Analysis of Closing Arguments to a Jury, 37 N.Y.L. Sch. L. Rev. 55
(1992); Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision
Making: The Story Model, 13 Cardozo L. Rev. 519, 528 (1991) ("A story is plausible to
the extent that it corresponds to the decision maker's knowledge about what typically
happens in the world and does not contradict that knowledge"); Richard K. Sherwin, Law
Frames: Historical Truth and Narrative Necessity in a Criminal Case, 47 Stan. L. Rev. 39
(1994).
n5. Avi J. Stachenfeld & Christopher M. Nicholson, Blurred Boundaries: An Analysis
of the Close Relationship Between Popular Culture and the Practice of Law, 30 U.S.F. L.
Rev. 903, 904 (1996); see also Symposium, Lawyers as Storytellers & Storytellers as
Lawyers, 18 Vt. L. Rev. 567 (1994).
n6. Michael Riffaterre, Fictional Truth at xiii-xiv (1990).
n7. John Fiske, Admissible Postmodernity: Some Remarks on Rodney King, O.J.
Simpson, and Contemporary Culture, 30 U.S.F. L. Rev. 917, 918 (1996). See generally
Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (1983).
n8. See Amsterdam & Hertz, supra note 4; Neal R. Feigenson, The Rhetoric of Torts:
How Advocates Help Jurors Think About Causation, Reasonableness, and Responsibility,
47 Hastings L.J. 61 (1995).
n9. Philip N. Meyer, "Desperate for Love II": Further Reflections on the
Interpenetration of Legal and Popular Storytelling in Closing Arguments to a Jury in a
Complex Criminal Case, 30 U.S.F. L. Rev. 931, 932 (1996).
n10. Id. at 933.
n11. For example, consider the heavy reliance by defense lawyers in the first Rodney
King assault trial on in-court digital reconstructions of the George Holliday video tape
which showed Los Angeles police officers in the act of "subduing" Rodney King. The
defense's re-orchestration of these images helped to persuade jurors that it was King's
movements that "caused" the officers to strike King with their batons.
n12. See Rorie Sherman, And Now, The Power of Tape: Videos Are Being Used To
Argue the Case and Not Just Demonstrate the "Facts", Nat'l L.J., Feb. 8, 1993, at 1
(discussing an Arizona case in which the plaintiff used a summation video that included
scenes from the 1958 British feature film, A Night To Remember (Rank 1958) in order to
make visually vivid its comparison of the defendant's negligence to that of the officers
aboard the iceberg-bound Titanic).
n13. Stachenfeld & Nicholson, supra note 5, at 909 (footnote omitted).
n14. See Robert A. Ferguson, Story and Transcription in the Trial of John Brown, 6
Yale J.L. & Human. 37 (1994).
172
n15. Cf. Victor Turner, Dramas, Fields, and Metaphors: Symbolic Action in Human
Society, 45, 49 (1974) (describing communitas as an invisible, deep cultural bond uniting
people over and above any social bond or positive structure and which is particularly
apparent when structural conflicts must be redressed).
n16. See Laura Hanft Korobkin, The Maintenance of Mutual Confidence: Sentimental
Strategies at the Adultery Trial of Henry Ward Beecher, 7 Yale J.L. & Human. 1 (1995).
n17. Cf. Hennig Cohen, Introduction to Herman Melville, The Confidence Man: His
Masquerade at ix (Hennig Cohen ed., 1964). Describing Melville's pessimistic outlook,
Cohen notes:
For Melville, "annihilation' did not mean simply defeat or death, but the recognition of
the limitations inherent in the human situation. As Hawthorne was aware, even more
difficult and profound matters were involved - how to live in a world in which nothing is
what it appears to be, in which ... the only thing believable is that nothing can be
believed.
Id. at x.
n18. See Richard K. Sherwin, Law and the Myth of the Self in Mass Media
Representations, 8 Int'l J. Semiotics L. 299 (1995) (describing the in-court and mass
media manipulation of images in the Rodney King assault case and the disparate
rhetorical styles of the prosecution and defense in the O.J. Simpson case).
n19. See, e.g., Bill Nichols, Blurred Boundaries: Questions of Meaning in
Contemporary Culture (1994).
n20. According to media theorist Timothy Murray: ""Fictional models permeate
factual discourse.'" Murray also notes that ""the more the facts in a given case are
disputed ... the more likely a TV or cinematic version of events will shape public
opinion.'" Deborah Baldwin, Is It Fact? Or Is It Fiction?: From Hollywood To The 6
O'Clock News, It's Getting Harder and Harder To Tell, Common Cause, Winter 1993, at
25, 29 (quoting Timothy Murray).
n21. See George Gerbner, Trial By Television: Are We At The Point Of No Return?,
63 Judicature 416, 420 (1980) (noting that according to a recent poll seventy-three
percent of those children surveyed could not cite any difference between judges depicted
on television shows and those in real life).
n22. See J.M. Balkin, What Is A Postmodern Constitutionalism?, 90 Mich. L. Rev.
1966, 1981 n.35 (1992) (noting that in recent years Canadian citizens have been insisting
upon receiving Miranda warnings following arrest - as if Canadian television viewers'
shared popular culture with the United States included a shared legal culture as well).
n23. Former CBS law correspondent and current Court TV anchor Fred Graham
recounts the story of a defense lawyer whose client unexpectedly lost. When the lawyer
asked a juror what happened, the juror said: "When you cross-examined the prosecution's
key witness, you did not get him to confess." Graham's comment follows: "The lawyer
realized that here is a real Perry Mason fan, and the real-life lawyer has not measured
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up." Fred Graham, Keynote Address: The Impact of Television On The Jury System:
Ancient Myths and Modern Realism, 40 Am. U. L. Rev. 623, 628 (1991).
n24. See, e.g., Sandy Flitterman-Lewis, Psychoanalysis, Film, and Television, in
Channels of Discourse, Reassembled 203, 211 (Robert C. Allen ed., 1992) ("When we
watch a film it is as if we were somehow dreaming it as well; our unconscious desires
work in tandem with those that generated the film-dream.").
n25. Suzanne Shale, The Conflicts of Law and the Character of Men: Writing
Reversal of Fortune and Judgment at Nuremberg, 30 U.S.F. L. Rev. 991, 994 (1996).
n26. This distortion effect provides a useful illustration of how common sense beliefs
and cognitive styles shift over time. For example, the current popular cultural preference
for direct, as opposed to circumstantial, evidence contrasts sharply with the strong
preference in the later eighteenth and nineteenth centuries for circumstantial evidence
over direct evidence. It was the latter that the public scorned then. Alexander Welsh,
Strong Representations: Narrative and Circumstantial Evidence in England at ix (1992).
As Welsh notes: ""Circumstances cannot lie!' was a brag sometimes heard at the close of
the eighteenth century - and no doubt it spoke volumes of the braggers' opinion of other
people, who might lie." Id. at 7.
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INSERT
Selection of Cartoons
Page 1
175
Steven Brill, That’s Entertainment! The Continuing Debate Over Cameras in the
Courtroom, 42 JUL. FED. LAW. 28 (1995). This article was originally published in
THE FEDERAL LAWYER, July 1995, Volume 42, No. 6. It has been reprinted here
with permission.
Copyright © 1995 by the Federal Bar Association; Steven Brill
Federal Lawyer
July, 1995
THAT'S ENTERTAINMENT!
THE CONTINUING DEBATE OVER CAMERAS IN THE COURTROOM
Cameras in the Courtroom
Steven Brill
Founder and CEO, Court TV
This subject hardly needs an introduction; it is now a common topic of
conversation. And even were it not so, Eric Suben has more than adequately introduced
this theme in his editorial this month. Yet let me remind our readers that the discussion is
hardly closed, the issue far from resolved, despite the unremitting and seemingly
unquestioned (at least among its lay audience) coverage of the O.J. Simpson trial, to
name only the latest drama unfolding before our camera-captivated eyes. Here are two
informed opinions to help you determine where you stand on the issue.
Let's be blunt. The reason that the issue of cameras in the courtroom is again
under debate in the legal community is because the Simpson case, to many Americans,
has made the legal system look bad. And so some lawyers and judges are afraid that the
public will want to change the system. And some judges even resent the idea that the
public is so closely watching one of their colleagues at work and having the temerity to
criticize how they are performing their jobs.
Now, of course, we can all agree that the problem here is that the Simpson case-if that is all the public sees and focuses on--will present a distorted view of the system
and thereby distort the public debate. However, on closer analysis, the Simpson case,
horrible as it is, helps to prove that cameras in courts are an issue we should stop
debating.
First, to the extent that televising the Simpson case has made the public question
various aspects of the legal system, that is an argument for cameras, not against them.
Isn't that exactly what is supposed to happen in a democracy? The press shines light on a
governmental activity so that the public can evaluate it. It is as if we suddenly moved to
ban reporting about wars simply because the coverage of the Vietnam War caused lots of
people to question it.
Second, to the extent that the Simpson case is atypical and, therefore, has given
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people a distorted view of the system, the ultimate irony and absurdity would be to pull
back from camera coverage that illustrates more typical cases in the aftermath of this
unusual one!
People need to see how the system really works, not simply how it worked in a
particular case. Indeed, it is a reason to expand camera coverage--and certainly to expand
it to the courts that usually do not try sensationalized, violent criminal trials: the federal
courts. And Court TV, which, in showing some 300 trials, has dedicated itself to showing
typical street crime and civil cases, as well as the highly publicized cases, has proven-with high viewership in these more typical instances--that that perspective can be
provided. Similarly, there is not a judge in the world, who, watching the Simpson trial
and feeling frustrated that this is how the public thinks cases are tried, wants this to be the
lasting public impression of our justice system.
Third, Court TV and CNN, which have done serious gavel-to-gavel coverage of
this case, have served as the antidote to all of the out-of-court "garbage coverage" that is
really the source of public and legal community cynicism about the Simpson case.
Remove the Court TV and CNN cameras and you get all of that and more, except that it
will be unanswered by the truthful depiction of what actually happens in court.
Indeed, the complaints about cameras are usually about something done at the
crime scene, on the courthouse steps, or on the victim's family's front lawn. Or about
docudramas, or talk show spins, or anchor's adjectives, or pretrial saturation pictures of
the crime scene and the handcuffed defendant. Judges and legislators cannot and should
not try to stop any of this non-courtroom material, however distasteful. But that is why
we need cameras in the courts to counteract the polluted reporting of these serious and
seriously distorted events.
Reality Exposed
Having a camera in the courtroom can alleviate the misunderstanding and
cynicism that infect the public view of the legal process. Until Court TV, the legal
process was a much discussed but little seen aspect of our government. Again, if
attorneys and judges sometimes look incompetent or awkward or worse, if the system is
moving slowly, people should know that and should know why. Isn't that, after all, the
purpose of journalism that the founding fathers had in mind when they wrote the First
Amendment? In fact, I suspect that as time and Court TV go on, more audiences will
understand and appreciate that real life justice sometimes works slowly and not according
to a script, and that it is more complicated than the fictitious versions seen on both
television and the silver screen.
For example, as a result of the Simpson coverage, Court TV viewers now know
that in California, trials often take twice as long as they take in other states. The issue
isn't whether that's a good or bad thing. Rather, it's an issue of informed public debate.
Shouldn't people know that and see it happen? And shouldn't those involved in trying the
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case know that everyone is watching and be that much more motivated to improve the
system? Indeed, one could argue that the publicity in the Simpson case--courtesy of the
camera--that has focused on the tediousness of the process has seemed lately to have
encouraged those involved to move things along faster. Which means that the public
spotlight has, as usual, done what openness in a democracy always does: encouraged
corrective action.
Open System, Informed Public
Television coverage of trials is also changing the nature of what the public
understands about justice and the law for the better. According to a pre- Simpson, 1994
national survey by the Times Mirror Center for the People & The Press that measured the
impact of televised court trials on audiences, regular viewing of court trial proceedings
leads to a greater appreciation of the U.S. court system. Of the survey respondents who
had watched gavel-to-gavel coverage offered by Court TV, "66 [percent] said their
viewing gave them a greater understanding of the way the American court system works;
and 49 [percent] said they have a better impression of the fairness of the judicial system
as a result" (while 28 [percent] said their impression was now more negative).
Thus, with Court TV, we can hope for more intelligent and sophisticated jurors
and for participants who have a more realistic expectation of what the legal process is
about.
In a democracy, people should see their government work. Depriving someone of
his or her freedom is the most basic choice a government makes, and it ought to be public
and seen by as many people as possible. According to U.S. Circuit Judge Robert J. Miner,
"One of the reasons for the bad image of lawyers and judges is that nobody understands
what we do. It is essential that justice is seen to be done, and television lets the citizenry
see our justice system in action. The televising of court proceedings is the best thing that
ever happened to our profession, because it inspires confidence in our judicial processes."
Judge Miner was right then about the hundreds of cases Court TV televised before
California v. Simpson, and he'll be right about the hundreds we cover after the Simpson
case is concluded.
The Evidence Is In
There are many issues and debates in the justice system for which the empirical
evidence is mixed and is, therefore, used by both sides. The deathpenalty and its deterrent
effect is a good example. But cameras in the courts is not one of these issues, for here the
empirical evidence all goes one way! Every single state that has cameras in its courts has
first experimented and performed some kind of study to see whether lawyers and judges
play to the camera, whether witnesses or jurors are scared, whether the lights and wires
interfere with the dignity of the courtroom, or whether the process is otherwise disrupted.
And every single study in every single state has found that none of this happens. So, to
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those who say that the presence of a camera could undermine the proceedings, I say that
there is no more room in this debate for hypotheticals. The proof is in. And it's clear.
Federal Courts
The U.S. Judicial Conference voted last fall against permitting cameras on a
permanent basis in all federal civil cases. This decision--which has since been modified
to allow for the consideration of further experimentation--was frustrating because it
contradicted the absolutely undisputed results of the federal courts' own successful
experiment. The federal courts conducted a three-year experiment, then asked their own
in-house think tank, the Federal Judicial Center, to evaluate the results to see if any of the
feared consequences had actually materialized. That evaluation was unequivocal: nothing
bad happened and some real benefits resulted from the camera coverage. Nonetheless,
they ignored their own findings.
Prior to this decision, Court TV covered 36 federal cases, and they provided some
of the most educational, enlightening trials on the network: civil rights cases, an antitrust
case, an intellectual property case, employment discrimination cases, and cases on a
variety of other important matters. Ironically enough, at a time when Court TV is often
accused of covering so many high-profile criminal trials (actually, of the 375 trials we
have covered to date, maybe a dozen could be considered "high profile"), we are now not
able to cover some of the most important civil trials and criminal cases. We can cover
O.J. Simpson, but not the World Trade Center bombing, or Waco, or Oklahoma City. We
can cover a slip-and-fall case but not a federal civil rights case or an antitrust case or an
appeal on an abortion law. What happens in these significant trials? People do not get
adequate information and the result is a lack of public awareness about these important
issues. In a country that values openness, how can it ever be good to conduct trials behind
closed doors?
Playing To The Camera?
Similarly, my answer to those who say that the lawyers or the judge in the
Simpson case are playing to the camera is simple. First, those who know Johnny Cochran
or Bob Shapiro or Marcia Clark or Judge Ito know they are not acting out of character.
They are not acting any differently than they would in any other high-profile case simply
because a camera is in the courtroom, alongside the hundreds of cameras outside the
courtroom and the thousands of reporters who are there--and would be there to cover this
trial with or without the camera.
Second, if occasionally the lawyers are playing to the camera with irrelevant
asides, then that's not the camera's fault; it's the responsibility of the judge, who could
easily stop them from making such remarks--and has now done so. And, of course, it is
their responsibility, too. For the bar to react to this by saying that the cameras should be
removed because the lawyers abuse it is an incredible, and absurd, admission about the
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ability of judges to control their courtrooms and the ability of lawyers to control
themselves and to behave professionally.
Witnesses React To Case, Not Camera
There's also been a lot of talk that the camera turns questionable people into stars.
Well, not cameras in the courtroom. Take Kato Kaelin. Before his testimony, the media
circus outside the courtroom had turned him into someone whose story was worth a sixfigure book advance. My own view is that the camera in the court as he testified showed
him as he really is; it made him look like a perennial house guest and out-of-work actor,
not someone to whom a publisher will pay $23.95 for a book on his thoughts about the
Simpson case or anything else. In other words, the camera helped the marketplace of
ideas function better.
Some witnesses might be nervous with cameras, but the studies show that most
are not any more nervous than they otherwise would be. And the overwhelming factor
that would make a witness nervous has been found to be the publicity surrounding a case,
not the presence of a camera. And, of course, all states that allow cameras have laws that
protect certain types of witnesses, such as police informants, juveniles, undercover
agents, and relocated witnesses.
Defendants' Rights
Obviously, in criminal cases we must worry first about the defendant's rights.
Here, too, the camera helps. For once a trial starts, the defendant knows, and the jury
knows, that the public will see all the evidence. *35 So, if the jury (which will not be
shown) renders a verdict that contradicts the sound-bite wisdom, the verdict will be that
much more understandable and accepted in the community. It is probably for that reason,
plus the healthy effect that a more public proceeding has on the conduct of judges and
lawyers, that defense lawyers have increasingly favored cameras in courts, especially in
high-profile trials. In the hearing before Judge Ito to determine whether television
cameras could remain in the courtroom during the Simpson trial, both sides urged the
judge to let the cameras stay, among other reasons, as a way to legitimize the ultimate
verdict. An acquitted defendant, retroactively at least, would want a camera to have been
there. And if a camera will embarrass a convicted defendant, what is wrong with that?
Isn't that kind of embarrassment part of what the criminal process is supposed to be
about?
New Technology, New Case
As for the technology interrupting the dignity of the proceedings, this is no longer
a relevant issue. In 1965, the Supreme Court held in Estes v. Texas, 381 U.S. 532, that
there was not a constitutional right to camera access. But this case had to do with the
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physical attributes of camera coverage--the lights, the noise of the camera, the chaos, the
wires, indeed, the circus. In his plurality opinion in that case, Justice Clark noted, "When
advances in these arts permit reporting by printing press or by television without their
present hazards to a fair trial we will have another case." We all know that the technology
has changed. The physical imposition of that simple, lone, silent camera on the wall is no
greater, arguably less so, than a reporter scribbling on a pad. So, yes, now we do have
another case.
The Judges' Verdict
After each trial, Court TV surveys the judge involved. These judges have
unanimously told us that the camera experience had not in any way impeded the process
of justice and has, according to them, enhanced the public's understanding of the justice
system. For example, one Kentucky judge commented, "In the past, the public only saw
30-second sound-bites of trials. With Court TV, the public sees and feels what the entire
trial is about. The courts belong to the public, and the public has the right to see what we
do."
The media circus has nothing to do with one small, silent, unlit camera that covers
the dignified, serious proceedings in the courtroom. If anything, the cameras in the
courtroom lessen the circus-type atmosphere, for it allows the evening news to show a
clip of what really happened rather than some sound-bite from a prosecutor's press
conference or a witness being ambushed by a camera outside the courthouse. (Think back
to the camera ambushes and other circus- like happenings at the trials of Imelda Marcos
and Mike Tyson, which were not televised.)
So think beyond the Simpson trial, consider whether you are satisfied with the
current state of public awareness and understanding of the work you do, and think about
whether cameras, post Simpson, can improve it.
After the Simpson trial is over and a new case hits the headlines, we are certain to
be treated to more out-of-court media abuses--leaks, re-enactments, and the like--that are
the artifacts of pseudo-reality television. But there will be an antidote to it all: the reality
captured by a camera in the courtroom. We need it now more than ever.
Article in Brief
> Two experts in the continuing discussion over whether television cameras should be
allowed in federal courtrooms give their personal views on such issues as the
constitutional question, the educational value of televised trials, and the potential adverse
effects of live coverage on those involved in the process.
> Presented as a debate, two sets of facts are given and two separate conclusions are
drawn; readers can make up their own minds about where they stand on this controversial
181
topic.
Note 1. Steven Brill is founder and CEO of Court TV and chair and editor-in-chief of
American Lawyer Media. Prior to founding The American Lawyer magazine in 1979, he
was a columnist and writer for Esquire and New York magazines and the author of the
1978 best selling book, The Teamsters. Brill is a graduate of Yale College and Yale Law
School.
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Sigmon V. Parker Chapin Flattau & Klimpl, 937 F. Supp. 335 (S.D.N.Y. 1996).
Reprinted from West’s National Reporter System with the permission of West
Group.
Jan A. SIGMON, Plaintiff,
v.
PARKER CHAPIN FLATTAU & KLIMPL, Defendant.
No. 93 Civ. 7123.
United States District Court,
S.D. New York.
Sept. 20, 1996.
Television network moved for permission to film trial involving allegations of sexual
discrimination and wrongful termination. The District Court, Leisure, J., held that: (1)
court was not bound by policy of Judicial Conference of the United States, and (2)
television coverage would be allowed under circumstances.
Motion granted.
MEMORANDUM ORDER
LEISURE, District Judge:
Courtroom Television Network ("Court TV") moves this Court for permission
pursuant to General Rule 7 of the Local Rules of this Court ("Rule 7") to film for
television broadcast the trial starting September 24, 1996 in the above captioned matter.
For the reasons stated below, Court TV is granted permission to televise the September
24, 1996 trial.
BACKGROUND
The underlying matter is a suit alleging sexual discrimination and wrongful
termination on the basis of gender and pregnancy status. Plaintiff is a former attorney
employed at defendant law firm. The trial, scheduled to begin on September 24, 1996,
will be a bifurcated trial before a jury. Court TV is a news television network that
reports on the legal systems of the United States and other countries. Court TV has
specialized in complete, extended coverage of trials, both civil and criminal, as well as
coverage of oral arguments on motions and in appellate proceedings.
In the instant application, Court TV seeks to tape essentially the entire trial using
183
a single, stationary camera placed in the courtroom. The camera will be placed in such
manner that no juror will appear on television during the trial. No names of jurors will
be aired, and Court TV personnel will not attempt to contact any juror while the trial is in
progress. During the trial, Court TV may televise some portions of the proceedings via
tape-delayed broadcast. After the conclusion of the trial, Court TV intends to broadcast
extended portions of the trial.
DISCUSSION
I. The Court's Discretion Under Local Rule 7
According to Rule 7, as amended on June 30, 1988 by the Board of Judges of this
Court, "[n]o one other than court officials engaged in the conduct of court business shall
bring any camera" into a courthouse "without written permission of a judge of that court."
However, on September 20, 1994, the Judicial Conference of the United States adopted a
policy opposing the use of cameras to televise civil proceedings in the courts of the
United States. See Marisol A. v. Giuliani, 929 F.Supp. 660, 661 (S.D.N.Y.1996) (Ward,
J.). More recently, the Judicial Conference on March 12, 1996 issued a resolution
strongly urging the circuit Judicial councils to abrogate any local rules conflicting with
the Judicial Conference's position. See Katzman v. Victoria's Secret Catalogue, 923
F.Supp. 580, 584 (S.D.N.Y.1996) (Sweet, J.).
The threshold question--whether the Court's discretion as indicated by Rule 7 is
diminished or eliminated by the stated policy of the Judicial Conference--has been
answered in the negative by this Court on two previous occasions. See Marisol A. v.
Giuliani, 929 F.Supp. at 661; Katzman, 923 F.Supp. at 584. This Court agrees with
Judges Ward and Sweet that, although the position of the Judicial Conference is
persuasive, it is not controlling, and that the Court, pursuant to Rule 7, has full discretion
regarding this issue.
II. The Present Application
The question of how the Court should apply that discretion in light of the
persuasiveeffect of the position of the Judicial Conference is made simpler in this case by
the fact that neither plaintiff nor defendant objects in principle to the taping and broadcast
of the trial. However, defendant has stated its understandable concerns about the airing of
testimony and evidence regarding sensitive matters. For example, in showing damages,
evidence about the salaries earned by plaintiff and other attorneys employed by defendant
would be presented. Defendant contends that such matters are not a matter of public
interest and that they should not be televised.
Testimony or evidence given at trial becomes a matter of public record and thus
arguably need not be protected from televised broadcast. Nevertheless, defendant's
concerns merit consideration. There is an important distinction to be made between the
availability of information and the actual broadcast of such information. The Court
cannot--and does not seek to--stop any member of the public from obtaining information
that is in the public record; but it is not obligated affirmatively to supply that information
184
via media broadcast. This Court, in exercise of its judicial discretion in this matter, must
take consideration of the parties' valid concerns regarding sensitive information.
The technology to be used in this broadcast should address defendant's concerns.
Court TV will only televise the on-record portions of the proceedings, and will use a socalled "kill switch," a device that will allow the Court and/or Court TV personnel present
in the courtroom to block transmission of sensitive information. As all parties consent to
the taping and broadcast of the trial subject to this "kill switch" arrangement, the Court
sees no reason to deny Court TV's request for permission pursuant to Rule 7.
CONCLUSION
Court TV's request for permission pursuant to General Rule 7 of the Local Rules
of this Court is HEREBY GRANTED.
SO ORDERED.
185
Marisol A. V. Guiliani, 929 F. Supp. 660 (S.D.N.Y. 1996). Reprinted from West’s
National Reporter System with the permission of West Group.
MARISOL A., et al., Plaintiffs,
v.
Rudolph W. GIULIANI, et al., Defendants.
Application of COURTROOM TELEVISION NETWORK, Proposed Intervenor.
No. 95 Civ. 10533 (RJW).
United States District Court,
S.D. New York.
March 1, 1996.
Television network sought to intervene in civil action, for purpose of obtaining court's
permission to televise pretrial hearing. The District Court, Robert J. Ward, J., held that:
(1) court was not bound by policy of Judicial Conference of the United States, and (2)
television coverage would be allowed under the circumstances.
Granted.
MEMORANDUM AND ORDER
ROBERT J. WARD, District Judge.
Proposed Intervenor, Courtroom Television Network ("Court TV"), moves by
order to show cause pursuant to Rule 24, Fed.R.Civ.P., to intervene in this case for the
limited purposes of (a) persuading this Court to allow Court TV to televise the March 4,
1996 oral argument on plaintiffs' motion for class certification and defendants' partial
motions to dismiss ("March 4 Argument") and(b) obtaining the Court's written
permission, pursuant General Rule 7 of the Local Rules of this Court ("Rule 7"), to
televise that hearing. Inasmuch as the Court heard counsel for the Proposed Intervenor
on February 28, 1996, the portion of the motion seeking to intervene is moot. For the
reasons hereinafter stated, the portion of the motion seeking to televise the March 4
Argument is granted.
DISCUSSION
On June 30, 1988, the Board of Judges of this Court adopted amended Rule 7,
which is entitled "Photographs, Radio, Recordings, Television" and remains in effect.
The Rule provides in pertinent part:
No one other than court officials engaged in the conduct of court business shall bring
186
any camera ... into any courthouse or its environs without written permission of a judge
of that court.
Environs as used in this rule shall include the entire United States Courthouse property,
including all entrances to and exits from the buildings.
The Judicial Conference of the United States ("the Conference") subsequently
considered the propriety of televising adversarial civil proceedings in federal court. On
September 20, 1994, the Conference rejected an unambiguous recommendation in favor
of televised proceedings by its Committee on Court Administration and Case
Management and adopted a policy opposing the use of cameras to televise civil
proceedings in the federal courts.
The threshold question, therefore, is whether this Court has discretion to allow
Court TV to televise the March 4 Argument pursuant to Rule 7 or whether the Court is
bound by the policy of the Conference. After careful consideration, it is the opinion of
this Court that the policy of the Conference does not overrule or supplant the Local Rules
adopted by the Board of Judges of this District Court. See 28 U.S.C. § § 331, 2071(c)
(1988). Rather, Rule 7 empowers the Court to grant written permission to televise a civil
proceeding and the Court should consider the Conference policy only as a persuasive
factor in the exercise of that power. [FN1]
FN1. It should be noted that, at oral argument held on February 28, 1996, all of
the parties agreed that this Court has the discretion to authorize the broadcast of
the March 4 Argument.
The discretionary power of this Court thus having been established, the Court
must next consider whether this is an appropriate case in which to exercise that power
and allow televised coverage. Plaintiffs'counsel support the application to televise the
oral arguments. The City defendants oppose the application and urge the Court not to
exercise its discretion because of the prejudice it argues will result from the public's
alleged inability to comprehend the technical aspects of defendants' motion to dismiss.
The State defendants take no position on the application.
After considering the arguments of counsel, this Court has determined that the
public interest would be served in this case by granting the application. Recognizing that
the policy of the Judicial Conference must be given considerable weight when deciding
an application to televise federal court proceedings, this Court nevertheless finds that the
profound social, political, and legal issues raised by the instant case make it appropriate
for broadcast.
One factor persuading the Court is Court TV's representation that it intends to
televise "gavel to gavel" the entire March 4 Argument. The Court is further persuaded to
allow such coverage by the fact that there will be no jury and no witnesses present at that
hearing. It is also the Court's view that the City defendants will not be prejudiced in
187
connection with their motion to dismiss because of the public's inability to comprehend
the technical aspects of that motion. This Court is unwilling to deny access to
information based on the perceived inability of the public to grasp such information. Not
only has Court TV represented that it will employ commentators to explain the nature of
the proceeding, but counsel for the City defendants is free to state on the record that the
allegations of the complaint are only to be taken as true in connection with the motion to
dismiss and are not admitted by the defendants. Under the circumstances, this Court *662
can perceive no prejudice to the parties in the granting of this application.
CONCLUSION
For the foregoing reasons, Court TV is hereby granted leave, pursuant to Rule 7,
to televise the oral arguments to be held before this Court on March 4, 1996.
It is so ordered.
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Copyright © 1996 -1997 by The New York Times Company, Reprinted by Permission.
The New York Times
March 14, 1997, Friday, Late Edition - Final
Section B; Page 1; Column 1; Metropolitan Desk
Juror No. 11 Files a Report On the System
By Clyde Haberman
THE trial, which ended yesterday in State Supreme Court in Manhattan, was hardly
anyone's idea of a big-time case. It made no headlines. It barely drew any spectators, least
of all courthouse buffs cruising the corridors of 111 Centre Street for action.
It was just an ordinary drug case, one of the hundreds limping their way through the
system: a man accused of selling cocaine out of a tenement apartment in East Harlem.
Yet it consumed a stunning amount of time, 10 working days from the start of jury
selection to the verdict.
Ultimately, the defendant was exonerated of the most serious coke-dealing charges
but found guilty on a lone count of possessing drugs, which by his own admission he had
bought at that spot 50 to 100 times in a single year. Reaching a verdict involved two and
a half days of wrenching deliberations that left jurors emotionally drained and the
defendant fighting back tears when he heard the news.
Juror No. 11, for one, decided that if all that qualified as ordinary, he never wanted to
see from the inside what an extraordinary case looked like.
In the end, Juror No. 11 felt that justice was done, if justice is defined as a search not
for absolute truth but for a consensus on probable reality that 12 reasonable men and
women can reach with the available facts. From that perspective, jurors walked out of the
courtroom yesterday feeling they had done their job honorably.
STILL, Juror No. 11, this columnist, was not the only one who found the long
experience unsatisfying in many respects. He felt manipulated, by rules that clearly had
kept him and the others from seeing illuminating evidence and witnesses, by a
requirement for unanimity that he began to question when it forced some jurors to barter
pieces of their convictions for group cohesiveness, by police work that even the most propolice members of the panel deemed unacceptably sloppy. They could not get over how
the authorities had managed to lose a crucial piece of evidence like a coat that supposedly
contained a Sucrets box filled with tiny bags of cocaine.
"I have no problem sending a message to the police that they need to prepare these
cases better," said a juror who initially had voted guilty on drug dealing. Another juror
told his colleagues, "If I'm going to send someone away, possibly for a long time, I want
to see less fuzziness in the evidence." Others agreed.
"It's terribly frustrating," one man said after it was all over. Like Juror No. 11, he felt
the proceeding had an Oz-like quality, with reality being not what lay directly in front of
him but what may have lurked behind the curtain.
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But the 12 knew what they were getting into when they signed on for the voyage.
They had agreed to be part of an ambiguous process from the moment they took their
seats in Part 64 before Justice Antonio I. Brandveen, an experienced judge with a soft
voice and amiable manner.
Then, too, just because the trial system may be flawed, its capacity to inspire is not
automatically diminished. At the risk of sounding corny, where else can 12 strangers
come together to decide a 13th stranger's fate, overcoming biases, diverse backgrounds,
personality quirks and a collective wish to be anywhere else but a cramped room in need
of a paint job?
STATE court administrators have worked hard to expand the jury pool beyond retired
civil servants, as in the old days. Part 64 was proof that they mean business. This jury
was a cross-section of working Manhattan, including certain types who never would have
been picked a few years ago: three lawyers, a legal-services administrator, an interior
designer, a nutritionist, an assistant teacher, an accountant, a retired portfolio manager, a
film distributor, a public-relations executive and a newspaper columnist.
One reads a lot these days about the dumbing-down of juries, about defense lawyers
in particular looking for unintelligent people they can sway with emotional arguments.
Juror No. 11, however, saw no evidence of that. Were jurors impatient now and then,
even irascible? Definitely. Dumb? Absolutely not.
The jury had seven women and five men. In a case with a Hispanic defendant, there
were six blacks, including one of Hispanic origin, and six whites. But if there were any
racially charged concerns, they remained outside the door. All around, jurors treated one
another with courtesy and respect.
Juror No. 11 left convinced that he and his colleagues had done the job asked of them.
He just wished that the system could have allowed him to feel better about it.
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Appendix G
MCKINNEY'S CONSOLIDATED LAWS OF NEW YORK ANNOTATED
JUDICIARY LAW
CHAPTER 30 OF THE CONSOLIDATED LAWS
ARTICLE 7-A--JUDICIAL ADMINISTRATION
Current through L.2002, chs. 1, 5 to 589, 591 to 596 and 598 to 601.
§ 218. Audio-visual coverage of judicial proceedings
1. Authorization. Notwithstanding the provisions of section fifty-two of the civil rights
law and subject to the provisions of this section, the chief judge of the state or his
designee may authorize an experimental program in which presiding trial judges, in their
discretion, may permit audio-visual coverage of civil and criminal court proceedings,
including trials.
2. Definitions. For purposes of this section:
(a) "Administrative judge" shall mean the administrative judge of each judicial district;
the administrative judge of Nassau county or of Suffolk county; the administrative judge
of the civil court of the city of New York or of the criminal court of the city of New
York; or the presiding judge of the court of claims.
(b) "Audio-visual coverage" shall mean the electronic broadcasting or other transmission
to the public of radio or television signals from the courtroom, the recording of sound or
light in the courtroom for later transmission or reproduction, or the taking of still or
motion pictures in the courtroom by the news media.
(c) "News media" shall mean any news reporting or news gathering agency and any
employee or agent associated with such agency, including television, radio, radio and
television networks, news services, newspapers, magazines, trade papers, in-house
publications, professional journals or any other news reporting or news gathering agency,
the function of which is to inform the public, or some segment thereof.
(d) "Presiding trial judge" shall mean the justice or judge presiding over proceedings at
which audio-visual coverage is authorized pursuant to this section.
(e) "Covert or undercover capacity" shall mean law enforcement activity involving
criminal investigation by peace or police officers who usually and customarily wear no
uniform, badge, or other official identification in public view.
(f) "Arraignment" shall have the same meaning as such term is defined in subdivision
nine of section 1.20 of the criminal procedure law.
237
(g) "Suppression hearing" shall mean a hearing on a motion made pursuant to the
provisions of section 710.20 of the criminal procedure law; a hearing on a motion to
determine the admissibility of any prior criminal, vicious or immoral acts of a defendant
and any other hearing held to determine the admissibility of evidence.
(h) "Nonparty witness" shall mean any witness in a criminal trial proceeding who is not a
party to such proceeding; except an expert or professional witness, a peace or police
officer who acted in the course of his or her duties and was not acting in a covert or
undercover capacity in connection with the instant court proceeding, or any government
official acting in an official capacity, shall not be deemed to be a "nonparty witness".
(i) "Visually obscured" shall mean that the face of a participant in a criminal trial
proceeding shall either not be shown or shall be rendered visually unrecognizable to the
viewer of such proceeding by means of special editing by the news media.
3. Requests for coverage of proceedings; administrative review.
(a) Prior to the commencement of the proceedings, any news media interested in
providing audio-visual coverage of court proceedings shall file a request with the
presiding trial judge, if assigned, or if no assignment has been made, to the judge
responsible for making such assignment. Requests for audio-visual coverage shall be
made in writing and not less than seven days before the commencement of the judicial
proceeding, and shall refer to the individual proceeding with sufficient identification to
assist the presiding trial judge in considering the request. Where circumstances are such
that an applicant cannot reasonably apply seven or more days before the commencement
of the proceeding, the presiding trial judge may shorten the time period for requests.
(b) Permission for news media coverage shall be at the discretion of the presiding trial
judge. An order granting or denying a request for audio-visual coverage of a proceeding
shall be in writing and shall be included in the record of such proceeding. Such order
shall contain any restrictions imposed by the judge on the audio-visual coverage and shall
contain a statement advising the parties that any violation of the order is punishable by
contempt pursuant to article nineteen of this chapter. Such order for initial access shall
be subject only to review by the appropriate administrative judge; there shall be no
further judicial review of such order or determination during the pendency of such
proceeding before such trial judge. No order allowing audio- visual coverage of a
proceeding shall be sealed.
(c) Subject to the provisions of subdivision seven of this section, upon a request for
audio-visual coverage of court proceedings, the presiding trial judge shall, at a minimum,
take into account the following factors: (i) the type of case involved; (ii) whether such
coverage would cause harm to any participant in the case or otherwise interfere with the
fair administration of justice, the advancement of a fair trial or the rights of the parties;
(iii) whether any order directing the exclusion of witnesses from the courtroom prior to
their testimony could be rendered substantially ineffective by allowing audio-visual
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coverage that could be viewed by such witnesses to the detriment of any party; (iv)
whether such coverage would interfere with any law enforcement activity; or (v) involve
lewd or scandalous matters.
(d) A request for audio-visual coverage made after the commencement of a trial
proceeding in which a jury is sitting shall not be granted unless, (i) counsel for all parties
to the proceeding consent to such coverage, or (ii) the request is for coverage of the
verdict and/or sentencing in such proceeding.
4. Supervision of audio-visual coverage;
discretion.
mandatory pretrial conference;
judicial
(a) Audio-visual coverage of a court proceeding shall be subject to the supervision of the
presiding trial judge. In supervising audio-visual coverage of court proceedings, in
particular any which involve lewd or scandalous matters, a presiding trial judge shall,
where necessary for the protection of any participant or to preserve the welfare of a
minor, prohibit all or any part of the audio-visual coverage of such participant, minor or
exhibit.
(b) A pretrial conference shall be held in each case in which audio-visual coverage of a
proceeding has been approved. At such conference the presiding trial judge shall review,
with counsel and the news media who will participate in the audio-visual coverage, the
restrictions to be imposed. Counsel shall convey to the court any concerns of prospective
witnesses with respect to audio-visual coverage.
(c) There shall be no limitation on the exercise of discretion under this subdivision
except as provided by law. The presiding trial judge may at any time modify or reverse
any prior order or determination.
5. Consent. (a)Audio-visual coverage of judicial proceedings, except for arraignments
and suppression hearings, shall not be limited by the objection of counsel, parties, or
jurors, except for a finding by the presiding trial judge of good or legal cause.
(b) Audio-visual coverage of arraignments and suppression hearings shall be permitted
only with the consent of all parties to the proceeding; provided, however, where a party
is not yet represented by counsel consent may not be given unless the party has been
advised of his or her right to the aid of counsel pursuant to subdivision four of section
170.10 or 180.10 of the criminal procedure law and the party has affirmatively elected to
proceed without counsel at such proceeding.
(c) Counsel to each party in a criminal trial proceeding shall advise each nonparty
witness that he or she has the right to request that his or her image be visually obscured
during said witness' testimony, and upon such request the presiding trial judge shall order
the news media to visually obscure the visual image of the witness in any and all audiovisual coverage of the judicial proceeding.
239
6. Restrictions relating to equipment and personnel; sound and light criteria. Where
audio-visual coverage of court proceedings is authorized pursuant to this section, the
following restrictions shall be observed:
(a) Equipment and personnel:
(i) No more than two electronic or motion picture cameras and two camera operators
shall be permitted in any proceeding.
(ii) No more than one photographer to operate two still cameras with not more than two
lenses for each camera shall be permitted in any proceeding.
(iii) No more than one audio system for broadcast purposes shall be permitted in any
proceeding. Audio pickup for all media purposes shall be effectuated through existing
audio systems in the court facility. If no technically suitable audio system is available,
microphones and related wiring essential for media purposes shall be supplied by those
persons providing audio-visual coverage. Any microphones and sound wiring shall be
unobtrusive and located in places designated by the presiding trial judge.
(iv) Notwithstanding the provisions of subparagraphs (i), (ii) and (iii) of this paragraph,
the presiding trial judge may modify his original order to increase or decrease the amount
of equipment that will be permitted into a courtroom on a finding of special
circumstances so long as it will not impair the dignity of the court or the judicial process.
(v) Notwithstanding the provisions of subparagraphs (i), (ii) and (iii) of this paragraph,
the equipment authorized therein shall not be admitted into a court proceeding unless all
persons interested in providing audio-visual coverage of such proceedings shall have
entered into pooling arrangements for their respective groups. Furthermore, a pool
operator for the electronic and motion picture media and a pool operator for the still
photography media shall be selected, and procedures for cost sharing and dissemination
of audio-visual material established. The court shall not be called upon to mediate or
resolve any dispute as to such arrangements. In making pooling arrangements,
consideration shall be given to educational users' needs for full coverage of entire
proceedings.
(b) Sound and light criteria:
(i) Only electronic and motion picture cameras, audio equipment and still camera
equipment which do not produce distracting sound or light shall be employed to cover
judicial proceedings. The chief administrator of the courts shall promulgate a list of
acceptable equipment models.
(ii) No motorized drives shall be permitted, and no moving lights, flash attachments, or
sudden lighting changes shall be permitted during judicial proceedings.
(iii) No light or signal visible or audible to trial participants shall be used on any
240
equipment during audio-visual coverage to indicate whether it is operating.
(iv) It shall be the affirmative duty of any person desiring to use equipment other than
that authorized by the chief administrator to demonstrate to the presiding trial judge,
adequately in advance of any proceeding, that the equipment sought to be utilized meets
acceptable sound and light criteria. A failure to obtain advance judicial approval for
equipment shall preclude its use in any proceeding.
(v) With the concurrence of the presiding trial judge modifications and additions may be
made to light sources existing in the facility, provided such modification or additions are
installed and maintained at the expense of the news media who are providing audiovisual coverage and provided they are not distracting or otherwise offensive.
(c) Location of equipment and personnel. Cameras, equipment and personnel shall be
positioned in locations designated by the presiding trial judge.
(i) All audio-visual coverage operators shall assume their assigned, fixed position within
the designated area and once established in such position, shall act in a manner so as not
to call attention to their activities.
(ii) The areas so designated shall provide reasonable access to coverage with the least
possible interference with court proceedings. Equipment that is not necessary for audiovisual coverage from inside the courtroom shall be located in an area outside the
courtroom.
(d) Movement of equipment during proceedings. Equipment shall not be placed in,
moved about or removed from the courtroom, and related personnel shall not move about
the courtroom, except prior to commencement or after adjournment of proceedings each
day, or during a recess. Camera film and lenses shall be changed only during a recess in
proceedings.
7. Restrictions on audio-visual coverage. Notwithstanding the initial approval of a
request for audio-visual coverage of any court proceeding, the presiding trial judge shall
have discretion throughout the proceeding to revoke such approval or limit such
coverage, and may where appropriate exercise such discretion to limit, restrict or prohibit
audio or video broadcast or photography of any part of the proceeding in the courtroom,
or of the name or features of any participant therein. In any case, audio-visual coverage
shall be limited as follows:
(a) no audio pickup or audio broadcast of conferences which occur in a court facility
between attorneys and their clients, between co-counsel of a client, or between counsel
and the presiding trial judge, shall be permitted without the prior express consent of all
participants in the conference;
(b) no conference in chambers shall be subject to audio-visual coverage;
241
(c) no audio-visual coverage of the selection of the prospective jury during voir dire shall
be permitted;
(d) no audio-visual coverage of the jury, or of any juror or alternate juror, while in the
jury box, in the courtroom, in the jury deliberation room during recess, or while going to
or from the deliberation room at any time shall be permitted; provided, however, that,
upon consent of the foreperson of a jury, the presiding trial judge may, in his or her
discretion, permit audio coverage of such foreperson delivering a verdict;
(e) no audio-visual coverage shall be permitted of a witness, who as a peace or police
officer acted in a covert or undercover capacity in connection with the instant court
proceeding, without the prior written consent of such witness;
(f) no audio-visual coverage shall be permitted of a witness, who as a peace or police
officer is currently engaged in a covert or undercover capacity, without the prior written
consent of such witness;
(g) no audio-visual coverage shall be permitted of the victim in a prosecution for rape,
sodomy, sexual abuse or other sex offense under article one hundred thirty or section
255.25 of the penal law; notwithstanding the initial approval of a request for audio-visual
coverage of such a proceeding, the presiding trial judge shall have discretion throughout
the proceeding to limit any coverage which would identify the victim, except that said
victim can request of the presiding trial judge that audio-visual coverage be permitted of
his or her testimony, or in the alternative the victim can request that coverage of his or
her testimony be permitted but that his or her image shall be visually obscured by the
news media, and the presiding trial judge in his or her discretion shall grant the request of
the victim for the coverage specified;
(h) no audio-visual coverage of any arraignment or suppression hearing shall be
permitted without the prior consent of all parties to the proceeding; provided, however,
where a party is not yet represented by counsel consent may not be given unless the party
has been advised of his or her right to the aid of counsel pursuant to subdivision four of
section 170.10 or 180.10 of the criminal procedure law and the party has affirmatively
elected to proceed without counsel at such proceeding;
(i) no judicial proceeding shall be scheduled, delayed, reenacted or continued at the
request of, or for the convenience of the news media;
(j) no audio-visual coverage of any participant shall be permitted if the presiding trial
judge finds that such coverage is liable to endanger the safety of any person;
(k) no audio-visual coverage of any judicial proceedings which are by law closed to the
public, or which may be closed to the public and which have been closed by the presiding
trial judge shall be permitted; and
(l) no audio-visual coverage shall be permitted which focuses on or features a family
242
member of a victim or a party in the trial of a criminal case, except while such family
member is testifying. Audio-visual coverage operators shall make all reasonable efforts
to determine the identity of such persons, so that such coverage shall not occur.
8. Violations. Any violation of an order or determination issued under this section shall
be punishable as a contempt pursuant to article nineteen of this chapter.
9. Review committee. (a) There shall be created a committee to review audio- visual
coverage of court proceedings. The committee shall consist of twelve members, three to
be appointed by the governor, three to be appointed by the chief judge of the courts, two
to be appointed by the majority leader of the senate, two to be appointed by the speaker
of the assembly, one to be appointed by the minority leader of the senate and one to be
appointed by minority leader of the assembly. The chair of the committee shall be
appointed by the chief judge of the courts. At least one member of the committee and no
more than two members of the committee shall be a representative of the broadcast
media, be employed by the broadcast media, or receive compensation from the broadcast
media. At least two members of the committee shall be members of the bar, engaged in
the practice of law, and regularly conduct trials and/or appellate arguments; and at least
one member of the committee shall by professional training and expertise be qualified to
evaluate and analyze research methodology relevant to analyzing the impact and effect of
audio-visual coverage of judicial proceedings. No one who has served on an earlier
committee established by law to review audio-visual coverage of judicial proceedings in
New York state may be appointed to such committee. No member or employee of the
executive, legislative, or judicial branches of the state government may be appointed to
such committee.
(b) The members of the committee shall serve without compensation for their services as
members of the committee, except that each of the nonpublic members of the committee
may be allowed the necessary and actual travel, meals and lodging expenses which he or
she shall incur in the performance of his or her duties under this section. Any expenses
incurred pursuant to this section shall be a charge against the office of court
administration.
(c) The committee shall have the power, duty and responsibility to evaluate, analyze, and
monitor the provisions of this section. The office of court administration and all
participants in proceedings where audio-visual coverage was permitted, including judges,
attorneys and jurors, shall cooperate with the committee in connection with the review of
the impact of audio-visual coverage on such proceedings. The committee shall request
participation and assistance from the New York state bar association and other bar
associations. The committee shall issue a report to the legislature, the governor, and the
chief judge evaluating the efficacy of the program and whether any public benefits accrue
from the program, any abuses that occurred during the program, and the extent to which
and in what way the conduct of participants in court proceedings changes when audiovisual coverage is present. The committee shall expressly and specifically analyze and
evaluate the degree of compliance by trial judges and the media with the provisions of
this section and the effect of audio-visual coverage on the conduct of trial judges both
243
inside and outside the courtroom. Such report shall be submitted to the legislature, the
governor and the chief judge by January thirty-first, nineteen hundred ninety-seven.
10. Rules and regulations. The chief administrator shall promulgate appropriate rules
and regulations for the implementation of the provisions of this section after affording all
interested persons, agencies and institutions an opportunity to review and comment
thereon. Such rules and regulations shall include provisions to ensure that audio-visual
coverage of trial proceedings shall not interfere with the decorum and dignity of
courtrooms and court facilities.
11. Duration. The provisions of this section shall be of no force and effect after June
thirtieth, nineteen hundred ninety-seven.
HISTORICAL AND STATUTORY NOTES
1995 Amendments. Subd. 9, par. (a). L.1995, c. 8, § 1, eff. Jan. 31, 1995, substituted
reference to chief judge for reference to chief administrator in 2 places; substituted
provisions requiring 1 or 2 committee members be representatives of, employed by, or
paid by broadcast media, for provisions requiring at least 1 committee member be
representative of broadcast news media; and added provisions requiring 2 practicing
litigators and 1 qualified research analyst on committee, and prohibiting appointment of
former committee members and members or employees of state government.
Subd. 9, par. (c). L.1995, c. 8, § 1, eff. Jan. 31, 1995, made request of bar assistance
mandatory; substituted provisions regarding report evaluating program's efficacy, public
benefits, abuses, and effect on participants, for provisions regarding recommendations as
to efficacy of program and desirability of its continuation; required express and specific
analysis and evaluation of compliance and effect on judges' conduct; and substituted due
date of Jan. 31, 1997 for due date of Nov. 30, 1994.
Subd. 11. L.1995, c. 8, § 1, eff. Jan. 31, 1995, delayed expiration until June 30, 1997
from Jan. 31, 1995.
1993 Amendments. Subd. 3, par. (b). L.1993, c. 348, § 1, prohibited the sealing of
orders allowing audio-visual coverage. For effective date, see note below.
1992 Amendments. Subd. 7, par. (h). L.1992, c. 274, § 1, eff. June 23, 1992, omitted
exception authorizing victim to request judge to permit audio-visual coverage of his or
244
her testimony, either with or without obscuring of victim's image, in court's discretion.
Effective Date of Amendment by L.1993, c. 348; Application; Expiration
Unaffected. L.1993, c. 348, § 2, eff. July 21, 1993, provided: "This act [amending
this section] shall take effect immediately [July 21, 1993] and shall apply to all
proceedings commenced on and after such effective date; provided, however that the
amendment to section 218 of the judiciary law made by section one of this act shall not
affect the expiration of such section 218 and shall be deemed to expire therewith."
Effective Date. Section effective June 23, 1992, pursuant to L.1992, c. 187, § 1.
Derivation. Former § 218, added L.1987, c. 113, § 2; amended L.1989, c. 115, § § 1
to 8; repealed L.1992, c. 187, § 1.
Short Title. This section is popularly known as the "cameras in the courtroom law".
NEW YORK CODES, RULES AND REGULATIONS
Audio-visual coverage of judicial proceedings, see 22 NYCRR 131.1 et. seq. set out in
McKinney’s New York Rules of Court Pamphlet [N.Y.Ct. Rules 131.1 et. seq.].
Electronic Recording and audio-visual coverage of court proceedings see 22 NYCRR
29.1 et. seq., set out in McKinney’s New York Rules of Court Pamphlet [N.Y.Ct.
Rules 29.1 et. seq.].
Videotape recording of civil depositions –
Court of claims, see 22 NYCRR 206.11, set out in McKinney’s New York Rules of
Court Pamphlet [N.Y.Ct. Rules 206.11].
Supreme court and county court, see 22 NYCRR 202.15, set out in McKinney’s New
York Rules of Court Pamphlet [N.Y.Ct. Rules 202.15].
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CLASS 13: BIAS IN THE JUDICIAL SYSTEM
Is there bias in the judicial system? There are still biases and prejudices based on
race, religion, class, gender, sexual orientation, marital status, and a host of other
classifications in our society. So, it would not be surprising to find them in our court
system despite efforts at fairness. Hopefully, during your externship you have found that
instances of blatant and intentional bias are rare, but have you noticed any unintentional
biases in the system?
The Simpson case has explicitly raised the issue of race and the criminal justice
system. The reaction to the verdict in the criminal trial was widely reported to be split on
racial lines. One of the implications of this split is to demonstrate that whites and blacks
view the criminal justice system differently.29 Have those of you placed in courts hearing
criminal cases noticed anything that might contribute to this difference in perception?
Michael Welch’s article lays out some interesting statistics and poses questions regarding
the existence of bias in the criminal justice system. What has your experience shown
you?
Differences in perception regarding the existence of bias in the courts are not
limited to the criminal courts nor simply to racial bias. Over the last twenty years there
have been state and federal commissions and task forces on racial, gender, and ethnic
fairness in many jurisdictions. Excerpts of the original Report of the New York State
Judicial Commission on Minorities (“The Williams Commission Report”), issued in
April, 1991 and the 2000 update and the report of the Task Force on Gender, Race, and
29
As you read the Executive Summary of the Preliminary Draft Report of the Second
Circuit Task Force on Gender, Racial, and Ethnic Fairness in the Courts, note that this
same difference in perception exists among the male and female and white and minority
interviewees.
256
Ethnic Fairness in the Second Circuit Courts as well as the follow-up report on
implementation issued by the Southern District of New York are included in the readings.
Most of you are doing your externship in the courts described in these reports. Think
about what you have seen. Are there conditions reported that you had not recognized as
biased? Have the conditions described in the Williams Report improved since the report
was issued in 1991? Based on your observations, are the most recent follow-up reports
accurate? Have you noticed any other types of bias not noted in the reports? Pay
particular attention to the recommendations contained in the reports. Do they go far
enough? Are they realistic? Do you see any problems with them? What
recommendations would you make for improvement?
What obligation does an individual judge have to eliminate bias in the court? In
1996, New York added explicit anti-bias provisions to the rules for judicial conduct.
Judges in New York are now specifically prohibited from manifesting bias or prejudice
based upon age, race, creed, color, sex, sexual orientation, religion, national origin,
disability, marital status or socio-economic status. Under these new provisions, judges
are also charged with policing the words and conduct of lawyers and court staff. The
ethical code for federal judges contains a general provision requiring judges to act
impartially and without prejudice. Have you seen any instances where the judge has
stepped in to eliminate biased behavior on the part of court staff, lawyers, or litigants?
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Class 13: NOTES & PROBLEMS
1. Judicial Training Video. Task Forces and Commissions studying all types of bias in
the courts have consistently recommended education and training for judges as an
important means of eliminating bias. We will view and discuss a video used for training
judges.
2. Video/Role Play, “The Chauvinistic Lawyer”. After watching a video of a
courtroom exchange among a male lawyer, female lawyer, and male judge, several
students will role play alternative responses by the judge and lawyers. Think about the
appropriate role of the judge in curbing biased behavior on the part of lawyers.
3. Show & Tell. The Williams Commission Report and the Second Circuit Task Force
Report made a number of recommendations for improvements. Williams Commission
follow-up reports indicate progress. What have you seen during your externship? Note
the criticisms in the reports and look at the courthouse with a critical eye. Is the court
you work in user friendly for minorities and women? Be prepared to discuss your
observations and give examples.
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Report of the Southern District of New York On
Implementation of Second Circuit Task Force
Report on Gender, Racial and Ethnic Fairness
For many years the Southern District has had a Committee on
Equal Opportunity. The committee is now constituted of Judge Harold
Baer, Jr., Chair, and Judges Naomi Reice Buchwald, Miriam Goldman
Cedarbaum, Charles S. Haight, Jr., Robert P. Patterson, Jr. and Shira A.
Scheindlin, as well as Magistrate Judge Kevin N. Fox. District
Executive Clifford P. Kirsch is also a member. The Chief Judge is a
member ex officio. The current Committee's main charge has been to
review the concerns enunciated in the Second Circuit Task Force
Report on Gender, Racial and Ethnic Fairness and to implement the
recommendations of the Circuit Implementation Committee.
I.
The laws forbidding discrimination on the basis of race, ethnicity
and gender have been in effect for many years. Moreover, New York
City is a place of great diversity. Consequently, it is not surprising that
the Task Force Report contained no findings that the Southern District
has any practices of actual gender, racial or ethnic discrimination.
However, the Task Force Report did indicate problems of perception.
For instance, there is some degree of perception by female and minority
attorneys that they occasionally receive treatment that is directed to
them because of their gender, race or ethnicity. While this may largely
be the result of misunderstanding, the perception is there and cannot be
ignored.
The Equal Opportunity Committee has arranged to have two
educational programs for court staff members. These were carried out
with the cooperation of the Federal Judicial Center. They were
conducted by Martha G. Miller, who has given successful programs of
this kind to various groups. The first session in our court was last
August, and the second this March. They were both well attended and
well received.
The Committee is now working to determine the best way to
bring the problems of perception to the attention of the judges and
magistrate judges, and to enlist their thought and effort in dealing with
such issues.
II.
331
One point noted in the Second Circuit Task Force Report was
that the courts in the circuit lack procedures to receive complaints from
attorneys and other members of the public about discriminatory or
biased conduct by court personnel. The Report recommends that each
court adopt such procedures and publicize them.
The Southern District has, of course, an Employment Dispute
Resolution Plan. However, this applies to employees and applicants for
employment. In order to deal with complaints by the public, the
Committee has concluded that the main step to carry out is to provide
reasonable notice to the public regarding the court officer to whom
such complaints may be addressed. Consequently, the Directory near
the main entrance to the 500 Pearl Street Courthouse lists the District
Executive in this capacity. Also, notices are being placed in the Clerk's
Office and the Jury Assembly Room, advising that anyone who
believes that he or she has been treated improperly due to bias or for
any other reason should communicate with the District Executive.
III.
Another area of concern has been diversification of
appointments. An essential device in this regard is making sure that
notice of job opportunities is given wide circulation. Attention is being
given to placing notices in publications which are likely to reach
minority groups. Also, additional organizations have been included in
the list to which notices are being mailed. Where job openings would
be of interest to lawyers, notices are being given to the presidents of
each of the constituent associations which together form the Network
of Bar Leaders. The Network, while it includes the Association of the
Bar and the five county bar associations, is primarily composed of
some 35 specialized bars, mostly minority and women's associations.
A major area for appointments relates to bankruptcy trustees. The
District Court has no direct appointing power, since the U.S. Trustee,
who is designated by the Department of Justice, has the responsibility
to make most of the trustee appointments. However, education is
important, and the Equal Opportunity Committee has met with the U.S.
Trustee and the Chief Bankruptcy Judge, who both indicated an
awareness of the desirability of more appointments to women and
minorities. The meeting undoubtedly served to emphasize the point.
For some time there has been a complaint from various quarters
about the lack of diversity in the rank of security officers serving the
court. With the cooperation of the Chair of the Security Committee,
there has been a discussion with those in charge of hiring security
officers regarding the desirability of diversifying. This has led to the
recruitment of some female, African-American and Hispanic officers.
332
The trends in hiring will be monitored.
IV.
There has long been a problem regarding the lack of women and
minority lawyers on the Criminal Justice Act panel. The Defenders'
Services Committee has had this question under advisement for many
years. The Committee has recently met with the Lawyers Review
Committee, the body which recommends to the court lawyers for the
CJA panel. There was consideration of imposing term limits to
members of the panel in order to create openings. This proposal was
not viewed favorably, because of the danger of arbitrarily removing
attorneys who were needed to perform services of the proper quality to
indigent defendants in criminal cases. However, the Defenders'
Services Committee of the court and the Review Committee have
resolved that the Review Committee will engage in a more intensive
review of all applications for renewal of terms on the CJA panel, and it
is believed that this heightened review process may well create more
openings and allow more diversity.
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CLASS 14: TRENDS IN THE COURTS
We will end the semester by looking at alternatives to litigation and trends in the
courts. Alternatives to litigation are commonly referred to ADR or Alternative Dispute
Resolution. We have already explored settlement, the most common ADR practice in the
courts. But, there are other methods of dispute resolution. In fact, the Civil Justice
Reform Act we discussed during the class on case management mandates ADR programs
in the federal district courts. The first article by Catherine M. DiDominico, “ADR in
New York Federal and State Courts,” describes ADR practices available in the courts
where you are doing your externships. Think about whether or not you have seen any of
these practices used during your externship. And, if so, be prepared to describe the
circumstances. If you have not seen ADR used, think about why this may be.
The remainder of the readings focus on trends in the courts. Judge Kaye has
recently mandated drug treatment as an alternative to jail for certain nonviolent offenders
in New York State. Community courts with alternatives to jail are becoming more
common. The materials include descriptions of the first community court in New York,
the Midtown Community Court. Are those of you in the criminal parts seeing diversion
to drug treatment or other alternative sentences? Do you think the methods described in
the materials on the Midtown Community Court could be employed at your placement?
Finally, no 21st Century discussion of trends is complete without reference to
technology. There are many possibilities for use of technology in the courthouse from
electronic filings and record keeping to video and computer presentation of evidence at
hearings and trials. To what extent do you see technology in use at your judicial
placement? What ideas do you have for greater use of technology in the courts?
342
This article is reprinted with permission from the June 7, 1996 edition of New York
Law Journal. © 1996 NLP IP Company.
Copyright 1996 New York Law Publishing Company
New York Law Journal
June 7, 1996, Friday
SECTION: OUTSIDE COUNSEL; Pg. 1
ADR in New York Federal and State Courts
Catherine M. DiDominico*
ALTERNATIVE dispute resolution or ADR refers to a broad spectrum of processes
designed to resolve disputes faster and less expensively than traditional litigation. While
the particular ADR process employed (i.e. arbitration, mediation or early neutral
evaluation) may differ based on what is most appropriate for a specific case, the goal of
all of these processes is to hasten settlement and aid in pretrial resolution of claims. This
article discusses the mandatory ADR programs in the Southern and Eastern Districts of
New York, and most recently in the Commercial Division of the State Supreme Court.
Instituted pursuant to the Civil Justice reform Act of 1991, the Southern District's
program requires mandatory mediation for all designated cases.
In the nearly four years of its existence, 1,300 cases were selected for compulsory
mediation. Of those that have been completed, the Southern District boasts a success rate
of approximately 80 percent. Even where mediation has not resulted in settlement, the
process is often credited by counsel and parties are bringing about on otherwise earlier
and less costly resolution of the case. More than 50 percent of cases referred to
mediation are resolved within one year of filing.
The Southern District mediation program is administered by George O'Malley and
supervised by the Civil Justice Reform Act Advisory Group. Mediators are selected from
a panel of volunteer lawyers who are required to attend a two-day training seminar.
In the Southern district, cases used to be selected for mediation based on plaintiff's
designation of the case as expedited, standard or complex at the time the action is filed.
These designations were formerly set forth in the Southern District Civil Justice Delay
Reduction Plan, and were eliminated when that plan was abolished by the board of judges
last year.
Under current practice, cases are referred to mediation by the judge or magistrate
judge or are randomly selected for mediation by the ADR administrator. Pro se,
prisoners' civil rights, tax and social security cases typically are not referred or selected
for mediation.
343
Within 10 days of the entry of an order referring a matter to mediation, the ADR
administrator assigns a mediator from the list of certified neutrals. The area of expertise
of the mediator is not matched to the subject matter of the case.
Once notified of the name of the mediator and the scheduled conference date, the
parties are obligated to provide the mediator with copies of their pleadings and a
memorandum (not exceeding 10 pages) setting forth their contentions respecting liability
and damages. Upon consent, copies may be served on all parties.
The attorney primarily responsible for each party's case must attend the mediation
conference and be prepared to discuss liability, damages and settlement. The mediator
may also compel the litigants to attend. The initial mediation session is mandatory and
the neutral can suggest additional sessions. Most cases average at least three sessions
before a resolution is reached.
The mediation proceedings are confidential and consequently, the discussions,
including the statements made by any of the participants, are not to be revealed, reported,
placed in evidence, made known to the assigned judge, or construed for any purposes as
an admission. The parties are not bound by anything said at the conferences unless a
settlement is achieved.
Because the proceedings are confidential, any written submissions made to the
mediator, including the memorandum discussed above, are not admissible at a subsequent
trial. The judge or magistrate judge will be told only the outcome of the process (i.e.
whether a full or partial resolution has been achieved), not the reasons for the outcome.
Participation in the Southern District's mediation program does not excuse a party's
compliance with court ordered discovery or other statutory or judicially imposed
deadlines.
Eastern District
The Eastern District ADR program is very different from that in the SOuthern
District, but has proven to be equally successful. Unlike the mandatory mediation
program in the Southern district, ADR in the Eastern District consists primarily of three
different kinds of processes: arbitration, mediation and early neutral evaluation (ENE) n1
All three program are administered by Gerald P. Lepp.
Since 1986, the Eastern District has had a program of mandatory court-annexed
arbitration for civil cases involving claims for money damages only not in excess of $
100,000, exclusive of interest and costs.
Case are assigned to the arbitration program immediately upon filing and the
arbitration hearing date is scheduled 120 days days after an answer is filed. The program
is compulsory with certain limited exceptions such as social security cases, tax matters,
prisoners civil rights cases, constitutional claims and suits which seek equitable relief. n2
Attendance of witnesses and production of documents may be compelled by
subpoena. Testimony is sworn and taken under oath. The Federal Rules of Evidence are
advisory in nature only and as a result, evidentiary rules are relaxed. The proceedings are
transcribed only if one of the parties decides to undertake that expense. n3
344
The results of the arbitration are non-binding and the parties retain the right to seek a
trial de novo. n4 Few parties actually exercise that right and, according to statistics made
available by the Eastern District, nearly 90 percent of all cases designated for mandatory
arbitration have resulted in settlement, 75 percent before the arbitration hearing is held.
The non-binding result of the arbitration hearing becomes final if no party makes
written demand for a trial de novo within 30 days. If a trial is demanded, the action is
restored to the docket and the case proceeds as if it had not been referred to arbitration.
The amount of the arbitration award is not admissible in any subsequent trial, but often
serves as a useful starting point for settlement discussions.
Mediation
One of the most important things to remember about mediation is that it is not
arbitration. Arbitration is a form of adjudication because, whether binding or not, the
result of the proceeding will be a decision which purports to impose a solution on the
parties.
Mediation, on the other hand, is a kind of facilitated negotiation. The mediator's
function is to help the litigants understand the other's position in an effort to come to
some consensual and amicable resolution. Unlike an arbitrator, the mediatory does not
purport to rule on, or otherwise decide, the matter at issue.
The district court judge or the magistrate judge, who, in the Eastern District, is
automatically assigned to preside over pretrial supervision of the case, is free to designate
for mediation or early neutral evaluation any civil case not meeting the mandatory criteria
of the Local Arbitration rule. n5
The criteria used by judges in deciding what cases are appropriate for mediation and
the timing for mediation varies.
Unlike the Southern District, litigants compelled to court-annexed mediation in the
Eastern District are offered the option of (a) using a mediator from the court's qualified
panel; (b) selecting a mediator of their own choosing; or (c) seeking the assistance of a
reputable neutral ADR organization in the selection of a mediator. n6
Like the southern district, participation in the program does not excuse compliance
with statutory or judicially imposed deadlines.
Early Evaluation
Bringing the parties together to resolve their dispute is also the objective of the other
ADR process adopted in the early neutral evaluation (ENE). The ENE program offers a
confidential, non-binding conference where the parties present their case to each other
and to an experienced and impartial attorney with expertise in the subject matter of the
case.
Cases are referred to ENE by the judge or Magistrate judge to whom the action has
been assigned. The evaluators are volunteer attorney selected by the ADR administrator
from a panel of qualified neutrals. The role of the neutral is to identify disputed and
undisputed issues, to explore the possibility of settlement, to assist the parties in
345
formulating a discovery plan, and to assess the strengths and weaknesses of the parties'
position and the value of their respective claims.
Commercial Division
An increasing number of commercials cases in New York County, particularly the
larger and more complex ones, are handled by the Commercial Division of the New York
County Supreme Court. Cases are assigned to that part based on counsel's designation of
the case as commercial at the time a Request for Judicial Intervention is filed. Effective
Jan. 1, 1996, all cases assigned to the Commercial Division are subject to mandatory
ADR at the discretion of the justice assigned to the matter. n7
What distinguishes the Commercial Division's program from the Southern and
Eastern District programs is the flexibility and freedom of choice it offers litigants and
their counsel. No specific type of ADR is mandate. Parties are free to mutually agree on
the type of ADR appropriate for their case (i.e., binding or non-binding arbitration or
non-binding mediation or neutral evaluation), and on the best way to pursue that process
(i.e., by availing themselves of the court-sponsored program or by retaining a neutral
privately). Court-annexed services are free.
The ADR process is initiated by the justice assigned to the case who signs an order of
reference which sets out the basic ground rules for the process.
The order can be signed during a preliminary conference, as part of an interlocutory
decision, or at any other stage in the litigation if the court determines ADR might prove
beneficial. Unless otherwise directed by the court, the order of reference automatically
stays all proceedings in the litigation (other than the appellate process) for 30 days from
the date on which the designation of a neutral is confirmed. An additional 30-day
extension may be requested of the Commercial Division support office which refers the
request for an extension to the assigned judge for approval.
Once the order is signed, parties who opt to sue the court-annexed program are given
one week to select by order of preference three neutrals from a list of volunteers, and to
agree upon the kind of ADR proceeding. There is a presumption in favor of mediation
and consequently, if the parties do not agree or fail to specifically designate another type
of ADR, the dispute will be mediated.
If the parties fail to agree on the neutral, the neutral is not available, or the parties do
not act within one week, the ADR coordinator will appoint a neutral of his own choice.
In the Commercial division, neutrals are selected based on their experience and
familiarity with the subject matter of the dispute.
Once a neutral has been designated, the parties are informed of the confirmation, and
the 30 (or 60) day stay on interlocutory proceedings begins to run. The parties must then
submit to the neutral, 10 days prior to the ADR proceeding, a memorandum identifying
the undisputed facts and issues and suggestions as to how the matter might be resolved,
as well as a copy of the pleadings. These memoranda are sent only to the neutral, are not
exchanged between parties, and are not filed in court. The ADR sessions follow.
All parties are to be represented at the initial ADR session by a representative with
settlement authority. The neutral may direct the parties to attend one additional session.
346
Thereafter, any one party or the neutral may terminate the ADR process, or upon consent
of all parties, the process may continue until a resolution is achieved. Note here that the
30 (or 60) day automatic stay of interlocutory proceedings continues to run so in the
event that the parties agree additional ADR sessions would be fruitful, a further extension
of the stay must be sought from the justice.
Like in the Southern and Eastern Districts, the ADR proceedings are completely
confidential and not admissible in any subsequent litigation proceeding. Upon
completion of the ADR proceeding, the neutral reports the results of the proceeding to the
Commercial Division. The justice assigned to the matter is advised only as to the
outcome of the proceedings (i.e. full, partial or no resolution), not as to the reasons for the
outcome.
ENDNOTES
* Catherine M. DiDomenico is an associate at Hertzog, Calamari & Gleason and a
member of the executive committee of the federal courts committee of the New York
County Lawyers' Association.
n1 See Eastern District of New York Civil Justice Expense and Delay Reduction Plan,
dated Dec. 17, 1991, pp. 15-16; Program Procedures for Mediation in the EDNY, revised
June 20, 1995.
n2 Id. at 15.
n3 Local Arbitration Rule, U.S. District Court EDNY, January 1993 Edition at § 1-2.
n4 28 U.S.C. § 655; Local Arbitration Rules, U.S. District Court, E.D.N.Y., at § 7
n5 Program Procedures for Mediation in the U.S. District Court E.D.N.Y., revised June
20, 1995.
n6 Id. at 2.
n7 Guide to the Alternative Dispute Resolution Program, Commercial Division Supreme
Court, Civil Branch (New York County), March 1996, pp. 2-3.
347
This article is reprinted with permission from the June 7, 1996 edition of New York
Law Journal. © 1996 NLP IP Company.
New York Law Journal
January 26, 2000, Wednesday
FEATURES; Special Sections; New York State Bar Association Annual Meeting; Pg. S1
Courts Launch Program 2000
Plan Calls for Reaching Out to Educate, Inform the Public
By Judith S. Kaye*
THANKFULLY, Jan. 1 has come and gone without the need to break out the
flashlights and bottled water. And I am almost fully accustomed to writing the date
"2000." Still, this year's State Bar Week definitely feels different. We are, after all,
starting a new page, one that is numbered "00." How will we fill it?
Celebration of the millennium certainly churned up a lot of ideas and information. I
learned, for example, that the paper clip was invented in 1901. How remarkable it is that
a century that began with the paper clip ends with mind-bending computer technology
that is paperless!
Then too, I could not help but wonder how New York's last turn-of-the-century Chief
Judge, Alton B. Parker, would have viewed today's legal landscape: more than three
million cases filed each year in our state courts, with subjects ranging from abandoned
infants to frozen human zygotes, from street corner drug deals to global business
transactions. Chief Judge Parker might have been equally astonished by the notion that,
100 years later, a woman would occupy his center chair in Court of Appeals Hall.
For all of our breathtaking technological, scientific and social advances, it is clear that
an independent judiciary and effective court system remain every bit as important to this
state and nation as they ever were. Courts and lawyers, together, continue to protect our
fundamental liberties, to help keep this society orderly and free, a model for the world.
Yet change confronts us at every turn. Preserving cherished values yet being open to
change - this is the true Y2K challenge.
Y2K Court Technology
For all the world, including the courts, new technology is the quintessential symbol of
change, and it represents both opportunity and challenge. The court system is knee-deep
into maximizing the opportunity and meeting the challenge.
We are by now all familiar with filing by fax in the Court of Claims as well as in
Monroe, Suffolk and New York County Supreme Courts. A pilot testing of the
commencement of actions electronically is set to begin next month in Monroe, New York
and Westchester counties. Electronic imaging is speeding case dispositions in the New
York City Criminal Courts.
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Technology allows us to perform old tasks more efficiently, but it promises much
more. It also allows courts to take on new roles that enhance overall performance. I like
the description given me by Noel Adler, the court system's Director of Technology: Our
objective in the past has been to collect information. Today, our focus is on the delivery
of information when users - judges, court personnel, the bar, the public - need it.
One of our first forays into this area was our on-line case information system,
providing access to court records from Supreme Court civil matters in 13 major counties.
The court system's Web site (www.courts.state.ny.us) provides a wealth of information,
from recent court publications to attorney registration listings, to courthouse addresses
and more, for any citizen with Internet access.
We will continue to work with the bar to assure the effective use of modern
technology throughout the New York State courts.
Trust and Confidence
By making court data more accessible, by demystifying the process as much as we
can, technology plays a key role in another of the new century's major challenges:
building trust and confidence in our justice system. That issue cannot be addressed
simply with microchips. And so this year, the Unified Court System will launch its New
York Courts 2000 Program, a year-long effort to reach out to the public to communicate
the intrinsic worth of law and the legal process.
At the core of the Courts 2000 Program are plans for direct outreach to inform and
educate the public about our justice system. Our target audiences range from students to
seniors, and all ages in between. Through judges-in-the-classroom programs, court tours,
a special Web site for students, Career Days, Law Day ceremonies, Justice for Seniors
programs, Juror Appreciation Week and so on, we will use every opportunity to spread
the word about what courts do and what difference they make in our daily lives.
Our ongoing program of jury reform - again, a cooperative venture with the bar - will
serve as another important tool for building public trust and confidence. For thousands of
citizens across New York, their only direct contact with the state court system is jury
duty. We want to be sure that this singular court experience is as positive as it can
possibly be.
We therefore will continue to search out new ways to use technology to make the
process as painless as possible - for example, using scannable juror summonses and
telephonic qualification response systems. We will also be continuing our work on grand
jury issues, with several pilots in the works testing less burdensome terms of service.
This fall, we will convene a first-of-its-kind national Jury Summit, where representatives
from across the country will gather to exchange ideas and experiences and hear about
innovations and possibilities.
Throughout most of Y1K, judges and lawyers spent little time worrying about the
issue of public trust and confidence because we simply assumed that our trappings and
authority assured the public's respect. It is a whole new ball game now. With the New
York Courts 2000 Program, we will fight the cynicism and misinformation that corrode
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public trust, and seek to revitalize public commitment to the core legal values that have
served this country so well for so long.
Remaining Challenges
Managing change, building public trust and confidence - these are but two of the
major challenges confronting our justice system at the crossroad of the centuries. Others
abound, such as dealing effectively with the social problems that underlie so many of the
cases that flood our urban courts, providing individualized justice on a massive scale,
preserving judicial independence. And the bar faces its own set of concerns: the
changing structure of the legal profession, the challenge of multi-disciplinary practice,
the preservation of professional values in an increasingly competitive environment.
As my husband and I stood at the starting line of the New Year's Eve Central Park
Midnight Run, among 7,000 runners, we had a fleeting thought that some terrible disaster
might indeed strike as the clock neared the magic moment. When 12:00 became 12:01,
the foreboding turned to excitement, to triumph, to out-and-out, full-scale energy and
optimism about the future. At the starting line of the new millennium, among all of you,
I feel just as positively about the challenges facing our profession and our courts.
*Judge S. Kaye is Chief Judge of New York.
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Copyright 1999 Newsweek
Newsweek
October 11, 1999, U.S. Edition
SECTION: MY TURN; Pg. 13
Making the Case for Hands-On Courts
By Judith S. Kaye*
Judges are learning that a problem-solving approach can stop the cycles of drug use and
dysfunction
When I graduated from law school back in 1962, becoming a judge was the farthest
thing from my mind. Not that the idea wasn't appealing. I was intrigued by the
intellectual challenges that the job posed as well as the opportunity to do justice and
make a difference in people's lives. It's just that the obstacles were daunting, especially
for a woman. Still, I could dream, couldn't I?
Fast-forward to 1999. For the past six years I have served as New York's chief judge.
As head of a branch of government with more than 15,000 employees and 4 million new
cases a year, I've seen firsthand what it takes to keep the wheels of justice turning. I have
also seen that, overwhelmingly, the New York courts discharge their heavy responsibility
with great care, working diligently to achieve the goal of equal justice under law.
But I'm not writing this essay to hand out congratulations. I'm writing because that
dream of 1962 doesn't quite line up with the reality of 1999. Doing justice, I find, is a lot
tougher than my textbooks ever suggested.
Let's face facts: many of the cases in state courts today are not complicated legal
matters. But they do involve people with complicated lives. If you take a trip to criminal
court or family court, you'll be reminded more of M*A*S*H than of Perry Mason. Judges
grapple with dockets driven by drug abuse, domestic violence and family dysfunction.
These are new issues for the courts, and yet judicial responses tend to be firmly rooted in
the past.
Not surprisingly, in many of today's cases, the traditional approach yields
unsatisfying results. The addict arrested for drug dealing is adjudicated, does time, then
goes right back to dealing on the street. The battered wife obtains a protective order, goes
home and is beaten again. Every legal right of the litigants is protected, all procedures
followed, yet we aren't making a dent in the underlying problem. Not good for the parties
involved. Not good for the community. Not good for the courts.
The volume of our dockets demands efficient management. But processing more
cases more quickly isn't the whole answer. We also need to take a step back and ask, Is
there a better way to do this? In fact, across the country, some judges are starting to
rethink business as usual.
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Here in New York we now have 15 drug courts that direct nonviolent defendants to
strictly supervised drug treatment instead of prison, halting the revolving door of drugscrime-jail. We're also testing that model in family court to stop the devastating cycle of
drugs-child neglect-foster care. We're developing community courts that seek to restore
distressed New York neighborhoods by making low-level, nonviolent offenders pay for
their deeds by removing graffiti and cleaning streets. And half a dozen domestic-violence
courts put immediate emphasis on victim safety and defendant accountability.
In these new courts, judges are active participants in a problem-solving process. In
the drug courts, judges oversee defendants in drug treatment--cheering them when they
achieve sobriety and sanctioning them (perhaps with a weekend jail stay) if they fall back
a step.
What's so different about this approach? First is the court's belief that we can and
should play a role in trying to solve the problems that are fueling our caseloads. Second is
the belief that outcomes--not just process and precedents--matter. Protecting the rights of
an addicted mother is important. So is protecting her children and getting her off drugs.
Third is the recognition that courts' coercive powers can change people's behavior.
We know, for example, that a defendant in court-ordered drug treatment is twice as likely
to complete the program as someone who gets help voluntarily. Finally, we've learned
that courts can't carry out this problem-solving role alone. Collaborations with
government agencies and community groups are essential.
Do problem-solving courts raise new questions about the roles of judges and
attorneys? You bet. But anyone who doubts the potential of this approach needs to attend
a family-treatment-court graduation, as I did recently. There were a lot of happy tears-including mine--as eight formerly addicted mothers were reunited in record time with
their kids who had been in foster care.
Some may argue that such hands-on involvement clashes with our branch's traditional
dignity and reserve. But what's the alternative? The flood of cases shows no sign of
letting up. We can either bail faster or look for new ways to stem the tide.
With a problem-solving attitude, we can make a real difference in the lives of litigants
and in the communities in which we all live. And in the end, that comes pretty close to
the dream that drew so many of us to the law, and to judicial service, in the first place.
*Kaye is chief judge of the state of New York.
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