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Judge
Disciplined for Friendship with Lawyer
By Cheryl Miller
w York Lawyer
The Recorder
January 10, 2007
The Commission on Judicial
Performance has publicly admonished a retired judge for failing to
disclose his chummy relationship with the prevailing plaintiff's
attorney in a $94.5 million inverse condemnation suit.
Former San Diego County
Superior Court Judge Vincent DiFiglia should have told the
defendants in the 2001 case that he had a long-term friendship with
the plaintiff's co-counsel, Vincent Bartolotta Jr., commissioners
said.
DiFiglia, who retired in
2003, also violated a judicial canon by failing to disclose publicly
that he had once worked for the defendant's counsel, the San Diego
city attorney's office, the commission wrote.
The CJP had already
privately chastised DiFiglia in 1992 for allowing Bartolotta and his
law partner to pay for the judge's play in golf tournaments, and
then failing to tell other attorneys in his court about his
relationship with the two lawyers.
Chief
Appeals Judge Steps Down
Charles J. Kahn Jr., Accused of Appearing
to Aid a Former Senator, Loses "Chief."
By Lucy Morgan
ST. Petersburg Times
November 18, 2006
TALLAHASSEE - Florida's
largest appellate court has quietly replaced its chief judge amid
internal rancor and suggestions of political influence surrounding
the bribery conviction and prison sentence of former Sen. W.D.
Childers.
Charles J. Kahn Jr.,
elected in 2005 to head the 1st District Court of Appeal for two
years, resigned the chief judge's job last month in the face of a
revolt by fellow judges.
A formal complaint alleging
misconduct has been lodged against Kahn, documents obtained Friday
by the St. Petersburg Times indicate.
In a written opinion
denying Childers' appeal of his bribery conviction, another judge
suggested that the public might conclude that Kahn was trying to
reverse Childers' conviction as a political favor.
In 1991, at the time Gov.
Lawton Chiles appointed Kahn to the court, he was a law partner of
Fred Levin, a prominent trial lawyer who is extremely close to
Childers.
In 1994, Levin, Childers
and Chiles hatched a plan to sneak a law through the Legislature
that allowed the state to sue tobacco companies and collect
$13-billion to repay the costs of providing health care to smokers
who depend on Medicaid.
Childers was a major player
on the state's political stage for more than 30 years, wheeling and
dealing as Senate president and chairman of important committees.
Often dressed in bright
pink or green jackets on the floor of the Senate, Childers was adept
at taking home the bacon for his West Florida district. He got
fellow legislators to include money in the state budget for a new
football stadium at the University of West Florida - a school with
no football team.
Forced by term limits to
leave the Senate in 2000, he won election to the Escambia County
Commission. He was charged with delivering a cooking pot filled with
cash to fellow Commissioner Willie Junior in return for his vote on
a $4.1-million land purchase.
Junior testified against
Childers, who was convicted of bribery. Before Childers' appeal was
decided, Junior was found under a house; the coroner concluded that
Junior killed himself by drinking antifreeze.
Childers' appeal
Childers appealed his
conviction and 3½-year prison sentence to the 1st District
Court of Appeal.
A three-judge panel headed
by Kahn voted 2-1 to overturn Childers' conviction. Kahn drafted the
opinion focusing on limits the trial judge set on cross- examination
of Junior.
That's when things turned
unusual: The other judges on the court decided to all hear the case,
"en banc," over the vehement objection of Kahn and the other two
judges on the panel. The full court voted 10-4 to uphold the
conviction.
Childers' lawyers asked the
appeal court to refer the case to the Florida Supreme Court to
determine the legality of having the entire 1st District vote.
In late June, again by a
10-4 vote, the 1st District rejected Childers' appeal. Judge Michael
E. Allen attached an opinion defending the decision to have the
entire court review the case. Allen said he was concerned that
Kahn's involvement would lead to "public perceptions of partiality
by this court."
Attaching newspaper
articles that described the friendship between Levin and Childers,
Allen said some Floridians might believe that Levin and Childers
influenced Kahn's attempt to overturn the conviction.
Allen noted that probably
would leave Childers free because Junior is no longer available to
testify.
"And the deciding vote
would have been cast by Fred Levin's former law partner," Allen
wrote. "The threat this case presented to the reputation of this
court, in my judgment, made it a case of exceptional importance. ...
"We should never perform
our responsibilities in a manner that would cause the public to
question the impartiality of our decisions," Allen wrote. "Yet I
believe that is precisely what Judge Kahn did by failing, on his own
motion, to recuse himself from consideration in this case."
Kahn says it's for best
Contacted Thursday, Kahn
would not discuss the reason he resigned as chief judge except to
say he thought it was best for the court. He remains on the court.
Kahn said he has not
maintained a relationship with Levin since he was appointed to the
court 16 years ago. He said he does not review cases involving the
Levin law firm.
Levin said Friday that he
asked Chiles to appoint Kahn to the court but said he has rarely
seen him in the past 16 years.
"I went to his father's
funeral, and he attended my brother's funeral, but that's about
all," Levin said.
Levin said he believes the
judges targeted him for criticism because they are jealous of the
large fees many lawyers make. On the tobacco case, Levin will
collect fees of about $200-million over 25 years.
Judge Edwin B. Browning
Jr., the new chief judge at the 1st District, did not return
telephone calls. Documents Browning released say that Kahn's fellow
judges met in early October to discuss "concerns within the court
over leadership and personal relationships within the court." Kahn
appeared at the meeting and resigned.
Misconduct allegations
against a judge generally are handled by the Judicial Qualifications
Commission and remain secret until formal charges are brought.
On Thursday, in response to
a request from 12 of the judges at the 1st District, Kahn was
removed from the District Court of Appeal Budget Commission.
Childers, who turns 73 next
week, is serving his sentence at Glades Correctional Institution in
South Florida.
Said Levin: "Knowing W.D.,
he's king of whatever prison he's in."
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Order in Court! (Not Robe Room)
By Greg B. Smith
Daily News Staff Writer
August 27, 2006
|
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Daily News Exclusive
- A federal judge repeatedly held proceedings in her robing room
in defiance of an appeals court ruling ordering her to stop the
practice, a Daily News investigation found.
In January 2005, the
2nd Circuit Court of Appeals found Manhattan Federal Court Judge
Shirley Wohl Kram had improperly held the sentencing of one drug
dealer and taken the plea of another behind closed doors in her
robing room. The panel took the highly unusual step of ordering
Kram to redo both in open court.
The Appeals panel
called Kram's behavior a "fundamental" error that "harms the
integrity of our federal judicial system as a whole."
Yet three months later,
while Kram was overseeing the extortion trial of six defendants,
she was again holding conferences in her robing room, according
to court records.
She allowed a court
reporter to take notes, but barred defendants from
participating, according to several attorneys who were there.
During one robing-room
session that April, as a jury was being selected, a member of
the defense team offered the judge a green umbrella with a
wooden handle, according to several lawyers present.
The judge accepted the
gift in chambers, then continued business, according to the
lawyers.
A few days later, in
another robing-room session, Kram mentioned the gift giving by
asking if anyone objected. No one did, and she kept the
umbrella, according to several of those who were present.
The rules governing
judicial ethics state a judge "should not solicit or accept
anything of value from anyone seeking official action from or
doing business with the court."
"The Court's acceptance
of this gift at the start of the trial, at the very least, in
retrospect appears improper," said attorney Joseph Bondy, who
represented lead defendant Angelo DiPietro.
In reply to a News
inquiry, Kram declined to comment, saying the case was on
appeal, but added, "Everything pertinent to the case is on the
record. If any errors were made in the course of the trial, the
2nd Circuit is capable of finding them and seeing that they are
corrected."
"We have these
conferences that the public is excluded from," said defense
attorney William Aronwald, who also saw Kram accept the
umbrella. "Compounding the problem is she specifically invites
only the lawyers into the robing room.
"Trying a case before
Judge Kram is like trying a case in the Twilight Zone," he
added.
At one point, Bondy
wrote a letter to Kram demanding a mistrial because she
continued to hold robing-room conferences that excluded
defendants.
He argued that this
violated the public's First Amendment rights to openness in the
courts and his client's Sixth Amendment rights to a fair trial.
In his June 7, 2005,
letter, Bondy specifically pointed out the January 2005 order by
the Appeals Court that had criticized Kram for holding court in
her robing room.
"Despite this recent
reversal and admonition by the 2nd Circuit," Bondy wrote, "Your
Honor did not hesitate to continue to hold important legal
proceedings during the course of a hotly contested
multidefendant criminal trial in the robing room."
Kram rejected the
mistrial bid, saying no lawyer had objected to the closed
sessions when they occurred. However, she then began holding the
rest of the conferences in open court.
All six defendants were
convicted of most of the charges against them. Most of the
lawyers say they intend to demand a new trial based on numerous
errors committed by Kram.
"I'm very optimistic
that none of the defendants in this case got a fair trial," said
Aronwald.
After an Aug. 6 News
report, judicial ethics experts raised questions about Kram's
role in appointing her son's friend as special master in a fraud
case. The friend, who so far has earned more than $200,000 as
special master, has since begun managing her son's trust fund
and helped him start a new business without pay. |
NY Judge
Takes Stand To Defend Conduct In Murder Trial
By Tom Perrotta
New York Lawyer
New York Law Journal
August 23, 2006
A state Supreme Court
justice yesterday said that his former law clerk was telling "lies"
when she accused him last year of having an improper ex parte
conversation with a prosecutor before a murder trial.
The judge, Justice Jaime A. Rios, was testifying at an unusual
hearing in Queens Supreme Court yesterday to determine if Tyrone
Johnson, a convicted murderer sentenced to 20 years in prison,
deserves a new trial.
In 2003, Mr. Johnson was convicted of murdering nightclub owner
Leroy Vann. He had been convicted of the same crime a year earlier,
but his conviction was thrown out because a former Queens
prosecutor, Claude Stuart, lied to Justice Rios about the
whereabouts of a witness.
Justice Rios, who now sits in Supreme Court, Civil Term, presided
over Mr. Johnson's second trial, too. Mr. Stuart has since been
suspended from the practice of law for three years. The second trial
was handled by Assistant District Attorney Eugene Reibstein.
Questions about the second trial arose when the judge's former
principle law clerk, Judith B. Memblatt, claimed last year that she
overheard a December 2002 conversation between the judge and Mr.
Reibstein, in which the judge coached the prosecutor about how to
handle a flawed witness.
Ms. Memblatt, who took notes of the conversations on Post-It notes,
accused the judge of impropriety shortly after she was fired in
April 2005.
She complained to the Commission on Judicial Conduct and has also
filed federal civil rights charges against the judge in the Eastern
District of New York, and has accused him of having an affair with a
former prosecutor. The Queens District Attorney's Office has
dismissed her claims as those of a disgruntled former employee.
Under questioning yesterday from Ronald L. Kuby, Mr. Johnson's new
attorney, Justice Rios admitted that he spoke to Mr. Reibstein both
before and after Mr. Johnson's second trial.
But he told Brooklyn Supreme Court Justice Matthew J. D'Emic, who
presided over yesterday's hearing, that those conversations amounted
to "small talk." Justice Rios and Mr. Reibstein once worked together
in the Queens District Attorney's Office. The judge said they are
acquaintances, not friends and never associate.
Before the trial, the judge said, Mr. Reibstein had stopped by
chambers to give a "heads up" that he would not be ready for trial,
and that the defense counsel, Allen Brenner, had consented to an
adjournment.
Justice Rios said he could not recall any further details of that
conversation, but suggested it was nothing more than ordinary banter
that lasted for "10 to 15 minutes."
"I was being polite," the judge said. "I wasn't going to tell him to
leave."
Mr. Reibstein, who testified in the afternoon, said the judge did
say that he had doubts about a witness, Henry Hanley, who testified
in the first trial, recanted his testimony, and finally recanted his
recantation.
But Mr. Reibstein said he interpreted the judge's comment as an
understanding of why Mr. Reibstein needed more time to prepare the
case.
"Oh good, he understands I'm going to need time," Mr. Reibstein
said, recalling his reaction.
In the post-trial conversation, Justice Rios said, Mr. Reibstein
stopped by to thank him for a "fair and efficient trial." The judge
said he could have made a comment about the Appellate Division,
Second Department, possibly having a problem with Mr. Reibstein's
closing arguments, but the judge said he could not recall details of
the conversation.
Mr. Reibstein testified that the judge did make such a remark. The
judge, he said, suggested that the appeals court might think that
Mr. Reibstein had vouched for witnesses. He said the comment
surprised him.
"I remember thinking, 'What is he talking about?'" Mr. Reibstein
said. "I didn't vouch for a single witness."
He said he told Justice Rios, "I don't think I have any problem with
that at all."
Mr. Reibstein later added that he had no regrets about either
conversation.
Mr. Kuby pressed Justice Rios on the substance of the conversations
and whether the judge discussed Mr. Hanley and several crime scene
photographs.
The photographs showed cars parked in a driveway where Mr. Vann was
murdered. Mr. Hanley testified that Mr. Vann had moved the cars
prior to being killed. He changed his testimony at the second trial.
Mr. Kuby's questioning produced a few sharp exchanges.
When he began asking Justice Rios about a draft complaint he had
written concerning possible misconduct by Mr. Brenner, the defense
attorney, the judge asserted "law clerk judicial privilege."
Justice Rios' attorney, Michael S. Ross, who was watching from the
jury box, interjected, noting that the privilege would apply since
Justice Rios had given his draft to Ms. Memblatt for her comment.
The letter was never sent to the grievance committee.
Later, Mr. Kuby asked the judge if he would waive his privilege with
the Commission on Judicial Conduct and discuss any responses he made
to the agency.
Mr. Ross objected before Mr. Kuby could finish his question.
"It's argumentative and intended for the people in the audience,"
Mr. Ross said.
Justice Rios did not waive the privilege.
Earlier in the day, Ms. Memblatt testified under sharp questioning
from Assistant District Attorney Charles A. Testagrossa.
Ms. Memblatt, who is an attorney, admitted that she photocopied
documents without Justice Rios' permission.
"So you were stealing," Mr. Testagrossa said.
Mr. Kuby objected. Mr. Testagrossa also asked Ms. Memblatt if she
"was acquainted with the definition of larceny?"
Later, he questioned Ms. Memblatt about other complaints she had
filed against judges, and her allegations that court officials,
including Chief Administrative Judge Jonathan Lippman, had played a
role in her firing.
"You really believe that?" Mr. Testagrossa asked.
"Absolutely," Ms. Memblatt said.
Judge
Reprimanded for Relations with Lawyer
James Adams Admitted Misconduct
By Paul Flemming
Tallahassee Democrat
June 8, 2006
Lee County Judge James
Adams got a public talking to Wednesday from Florida's chief justice
and was told to go try to repair his reputation after admitting to
carrying on a two-month affair with an attorney who had cases before
him.
''Judge Adams, when you
indulged in a romantic relationship with an attorney practicing
before you, you placed the public trust in jeopardy,'' Chief Justice
Barbara Pariente said to Adams, who stood silently before her and
the six justices of the state's highest court. ''You compromised the
single most important source of your authority, the perception of
the legal community and the public that a judge is impartial in
deciding cases.''
The 50-year-old Lee County
judge has served on the bench since 1992. He is unopposed in a
November reinstatement campaign.
Adams admitted his
misconduct in an agreement with the Judicial Qualifications
Commission after a complaint filed against him by the now-ex-husband
of the woman, Kennetha Lynn Donohue.
The commission found, and
Adams admitted, that he granted continuances in a number of cases
represented by Donohue and dismissed traffic cases against clients
of Donohue.
This ''gave the appearance
of impropriety,'' the commission found.
Adams' affair with Donohue
lasted from late September to the middle of November 2004. The
commission said ''the relationship, though inappropriate, was
short-lived.''
Pariente said Wednesday
that it was only appearances that had been violated.
''A review of the record
reveals no evidence that the relationship actually influenced your
actions in any of the cases,'' Pariente said.
That, coupled with Adams'
otherwise spotless record and his acceptance of full responsibility
for his misdeeds, resulted in the official reprimand instead of
harsher treatment.
Pariente is concluding her
two-year term as chief justice of the Supreme Court. In that time,
the court - final arbiter of judicial misconduct cases - has removed
two judges and reprimanded six, including Adams.
Reading from a prepared
text, Pariente said Adams' behavior harmed his own reputation, but
also those of other judges.
''Much excellent work and
good will generated by our judges can be undermined by the
misconduct of a few,'' she said. ''Each public reprimand saddens me.
Each is regrettable.
Lee Judge to Be Admonished by State Supreme Court
By Aaron Deslatte
Tallahassee Democrat
May 18, 2006
TALLAHASSEE FL - The state
Supreme Court will publicly admonish Lee County Judge James R. Adams
next month for his romance with a lawyer practicing before his
court.
Florida's high court today ordered Adams to appear June 7 for the
public reprimand, but declined to impose a stiffer punishment for
granting dismissals and continuances in cases lawyer Kennetha Lynn
Donahue had in his court.
"A judge who enters into a romantic relationship with a lawyer who
practices before the judge, and then continues to preside over
matters in which the lawyer appears as counsel, transgresses the
Code of Judiciary Conduct in both letter and spirit," the state
court wrote.
"Judge Adams failed to maintain the high standards of conduct
necessary to preserve the integrity of the judiciary," the seven
Supreme Court justices unanimously opined, " ... his conduct tended
to create the impression that he allowed a personal relationship to
influence his judgment ... and that he would have difficulty
performing his judicial duties fairly and without bias."
Ken Kellum, court operations manager for the 20th judicial circuit
that includes Lee County, said Adams planned to release a public
statement sometime before his reprimand in Tallahassee next month,
but would have no further comment.
"He still intends to put out a statement but hasn't issued it yet,"
Kellum said.
Donahue could not be reached for comment.
Adams admitted to state investigators that for two months in 2004 he
had a romantic relationship with Donahue, and that he granted "a
considerable number" of continuances in five cases Donahue had in
his court. In four other traffic cases Donahue handled, Adams
dismissed the charges.
According to the investigative findings, Adams admits, "he granted a
number of continuances at the request of the lawyer with whom he had
a romantic relationship, thereby causing his impartiality to be
brought into question."
The Supreme Court can impose much sterner punishments, including
fines, suspensions or removal from the bench, but acknowledged in
its order that there was no proof Adams had let his personal
relationship
influence the outcome of cases.
"If evidence had demonstrated that the relationship affected the
disposition of any matter before the judge, we would not hesitate to
impose stiffer discipline," the court wrote.
A Judge's
Affair Has Ex-hubby Seething
By Sam Cook
news-press.com
May 14, 2006
The judge is ashamed.
The mistress isn't talking.
The ex-husband is outraged.
James
R. Adams, 50, a Lee County judge since 1992, is scheduled to receive
a public reprimand June 7 from the Florida Supreme Court in
Tallahassee for ethical misconduct with a Fort Myers attorney.
Kennetha Lynn Donohue Rhodes, 37, a defense attorney locally since
2001, had a romantic relationship with Adams in 2004 while routinely
handling a number of cases in the judge's court.
Thomas Donohue, 45, was
married to Rhodes at the time of the affair. He filed an ethics
complaint against Adams with the state Judicial
Qualifications Commission
in January 2005. The
Adams Lee County
Judge
JQC announced its recommendation in February.
"I've never had a complaint filed against me as a judge,'' Adams
says. "It's uncomfortable and embarrassing. It's my own doing. I'll
never do it again.''
Adams granted Rhodes numerous continuances in five cases and
dismissed charges against four more of her defendants in traffic
cases.
Donohue says the JQC
reprimand is a slap on the hand and Adams should be removed from the
bench for his transgressions.
"I'm not just an irate husband hurt by his wife,'' says Donohue, a
1980 Fort Myers High graduate and former commercial fisherman. "I
was married to her for 11 years when this happened. I was betrayed
by a judge.
"A judge is supposed to be
held to a higher standard.''
Investigators found Adams violated canons 1, 2 and 3 of the Judicial
Code of Conduct.
Adams should have disclosed a relationship with Rhodes and recused
himself from her cases.
The JQC report says Adams
accepts full responsibility for his conduct, admits it shouldn't
have occurred and regrets and apologizes for conduct giving the
appearance of impropriety.
"The Investigative Panel in reaching this agreement notes that Judge
Adams' record as a judge is previously unblemished, he is active in
his community, and the relationship, although inappropriate, was
short-lived extending from late September 2004 to mid-November
2004,'' says the report.
Adams says he and the JQC
panel reached an agreement on punishment, but Donohue says the
reprimand trivializes the affair and he asked the Florida Supreme
Court to reject it.
"The judge never apologized to me,'' Donohue says. "He's only
regretful and remorseful because I found out. If I hadn't found out,
he'd still be going out with her.''
Donohue says he hired a private investigator who pulled cell phone
records and cross-referenced calls between Rhodes and Adams. Donohue
confronted his wife Nov. 18, but Rhodes told him she and Adams were
just friends.
"Several days later, she
broke down and admitted she had a sexual relationship with him,''
Donohue says. "My ex-wife also told me she would do or say anything
to protect their careers.''
Rhodes, who was divorced from Donohue on Aug. 15, 2005, refused an
opportunity to comment May 3 at her office.
Adams, who has been an
attorney and then a judge in Lee County since 1983, says he
understands Donohue's bitterness, but doesn't believe his mistakes
call for his removal from the bench.
"It was a relationship of a very short duration,'' Adams says. "Six
weeks. I had inappropriate contact with her. I regret it.''
Adams, who says he's been divorced six years, most regrets his 2004
misconduct mars a spotless and stellar record.
The judge, known for his
even temperament, has always stood tall in the community.
Adams' outreach ranges from umpiring Little League games to setting
up a night court so traffic scofflaws wouldn't miss work.
"It tarnishes my record,
but it'll be my last complaint,'' he says.
Alva's John Shearer Jr. has been on both sides of the bench. He
served as circuit judge for five years and was a longtime defense
attorney before retiring.
Is the public reprimand fair punishment for Adams?
"Yeah, that's about all you
can do to the guy,'' Shearer says. "He's embarrassed as he can
get.''
He says ethics is a ticklish concept to determine.
"When I was on the bench,
my wife, one of them anyway, worked for a law firm,'' Shearer says.
"Was I supposed to recuse myself every time a lawyer from her firm
came before me?
"I don't think so. I thought I was fair, but I don't really have an
answer to that.''
Shearer says Adams or
Rhodes should have come clean in court, but affairs go on every day.
"I don't think Judge Adams would have done anything judicially to
help (Rhodes) because he was having sex with her,'' Shearer says.
"But (Donohue) won't believe it because the judge was digging in his
flower garden.
"Death wouldn't be
sufficient (punishment) for the husband.''
Donohue doesn't want the death penalty, just Adams' removal from a
county bench.
"Whether you're having an affair with a lawyer or a Circle K girl,
it's immoral and unethical,'' Donohue says. "The sad thing about our
society is people don't feel an affair is wrong.''
Judge
Resigns After Allegedly
Cashing In on Fen-Phen Settlement
By Roger Alford
New York Lawyer
The Associated Press
February 27, 2006
FRANKFORT, Ky. -- A
northern Kentucky judge has resigned rather than face removal for
allegedly profiting from a $200 million settlement involving the
diet drug fen-phen, a state judicial panel said Monday.
Judge Joseph F. Bamberger
was publicly reprimanded Monday by the state's Judicial Conduct
Commission, which said his actions "shock the conscience."
Bamberger, who resigned
Feb. 24, was a senior status special judge, a retired jurist who
could be assigned to certain cases.
In a letter of reprimand,
the commission said the judge gave attorneys, including one of his
personal friends, somewhere between $86 million and $104 million
from the 2001 settlement.
In addition, Bamberger
allowed more than $20 million from the settlement to be put into a
charitable fund, and then he became a paid director of the fund,
receiving $5,000 a month plus a $350 monthly expense allowance.
That left the 431
plaintiffs involved in the settlement to split about $74 million.
More than 300 of the plaintiffs have sued three lawyers in the case.
"If the violations
described in this order had been proved at a hearing, the commission
would have removed Judge Bamberger from his office as senior status
special judge," commissioners said in the reprimand.
There was no immediate
comment from Bamberger, who was a circuit judge in Boone and
Gallatin counties for 12 years. Calls to his home in Florence were
not answered Monday.
The fenfluramine half of
fen-phen was pulled from the market in September 1997 by drugmaker
Wyeth amid reports some users had heart valve damage and a few had a
deadly lung condition. Fen-phen was never an FDA-approved
combination. The phentermine half remained on the market.
Ex-Judge's
Chumminess With Lawyers
Voids Arbitration Award
By Daniel Wise
New York Lawyer
New York Law Journal
February 23, 2006
An arbitration award cannot survive where the arbitrator went out to
lunch with one of the parties' lawyers and that lawyer's firm
provided the arbitrator with a conference room and legal research
free of charge in an unrelated case, a bankruptcy judge in Manhattan
ruled last week.
The arbitrator, former U.S. Bankruptcy Judge Francis G. Conrad, had
resolved a real-estate dispute in favor of a landlord of the debtor,
but Southern District Bankruptcy Judge Prudence Carter Beatty
overturned the award, finding that Mr. Conrad's actions gave "the
appearance of partiality."
Judge Beatty's decision
In re First Quality Realty, 02-14758, set aside Mr.
Conrad's arbitration ruling which had barred the debtor, First
Quality Realty, from converting four floors of a Brooklyn building
it had rented from commercial to residential use.
In addition to finding an appearance of partiality, Justice Beatty
observed that Mr. Conrad's acknowledged practice of asking law and
accounting firms for free use of facilities to host an arbitration
might "in and of itself, be improper."
Mr. Conrad said that as a court-appointed neutral he could not
comment on the decision.
Mr. Conrad, who served a full-14 year term on the U.S. Bankruptcy
Court for the District of Vermont before leaving the bench in 1999,
was selected as arbitrator by agreement of the parties. He was
chosen from a registry maintained by the Southern District
Bankruptcy Court.
Judge Beatty cautioned that her opinion should not be read as
finding that Mr. Conrad was, in fact, biased. Instead, she wrote,
his actions could cause a reasonable person to conclude that he had
created an "appearance of partiality."
She enumerated several actions that could give rise to an appearance
of bias:
• On days when there were arbitration sessions, Mr. Conrad went out
to lunch regularly with an attorney for the landlord and persons
representing his client, Reva Holding Corp.
• The law firm representing the landlord, Westerman, Ball, Ederer,
Miller & Scharfstein, provided gratis at the request of Mr. Conrad
two conference rooms and legal research to support a mediation in an
unrelated case in the Eastern District Bankruptcy Court. The
mediation occurred over several days in December 2004, while the
parties in the Southern District case were awaiting Mr. Conrad's
decision.
• Mr. Conrad was hired to represent the principal of another
corporation that had filed for bankruptcy in the Southern District.
That company also was represented by Westerman Ball.
• While the arbitration was pending, Mr. Conrad was selected to
mediate an Eastern District bankruptcy case where one party was
represented by Westerman Ball.
The appearance of bias was furthered because, despite an affirmative
duty, Judge Beatty wrote, Mr. Conrad had not disclosed to the debtor
his other business dealings with Westerman Ball (as lawyer, mediator
and user of its facilities).
With respect to the lunches, Mr. Conrad had asked the debtor's
attorney if he objected to Mr. Conrad having lunch with the
landlord's lawyer, Jeffrey Miller of Westerman Ball.
The fact that Mr. Conrad asked the debtor's attorney, Abraham J.
Backenroth, if "he minded the lunch arrangements" was immaterial,
Judge Beatty wrote, because "no one in Backenroth's position could
ever truthfully answer that question without worrying about raising
the ire of the arbitrator presiding over his or her matter."
By accepting employment in a matter involving Westerman Ball, Judge
Beatty added, Mr. Conrad had assumed a direct interest "for both his
client and in connection with his own fees" in a matter involving a
law firm for a party to an arbitration pending before him.
Improper 'Courtesies'
Judge Beatty expressed particular concern over Mr. Conrad's practice
of asking law and accounting firms to provide space and supportive
services, free of charge, for his mediations and arbitrations.
In an affidavit, Mr. Conrad had stated that because he did not have
his own conference room, it was his "custom" to request from law and
accounting firms the use of conference rooms without charge. Firms
letting him use their space, he added in the affidavit, also
provided "legal research, administrative, secretarial, fax, and
telephone services, gratis to the mediating parties and me."
Judge Beatty wrote that in requesting and accepting the free use of
facilities, Mr. Conrad failed "to recognize that it is his very
position as a former judge which may cause these firms to agree to
his requests in the first place."
She wrote in a footnote that "former judges are not entitled to
accept services that they would otherwise have to pay for by virtue
of their former public office." In another footnote, Judge Beatty
stated her belief that "such 'courtesies' should be monetarily
compensated by the Arbitrator."
The debtor, First Quality Realty, was represented by Gerald A.
Novack and Kathryn C. Plunkett of Kirkpatrick & Lockhart Nicholson
Graham. Mr. Backenroth and Mark A. Frankel of Backenroth Frankel and
Krinsky represented First Quality at the mediation.
In addition to Mr. Miller, the landlord, Reva Holding, was
represented by Mickee M. Hennessy, also of Westerman Ball.
Did Fling
Blind Judge? Legal Eagles Eye Appeals
By Scott Shifrel
New York Daily News
November 20, 2005
An allegation about an
illicit affair between a judge and a prosecutor has defense lawyers
scrambling to check their files for what could turn into a flood of
appeals, the Daily News has learned.
Lawyers who had cases
before Queens Supreme Court Justice Jaime Rios when he allegedly was
seeing prosecutor Meryl Lutsky in 1996 and 1997 tell The News the
affair charge is troubling and convictions involving their clients
need to be reviewed.
"I can't say anything about
the validity of the accusations [of the relationship], but I have to
at least investigate," defense lawyer Warren Silverman said. "If a
judge has a close relationship with one of the parties, then it is
improper for the judge to handle the case. If true, he should have
recused himself."
Silverman represented a
Queens woman in a 1996 drug case heard by Rios. His client ended up
serving two years behind bars.
Lutsky worked regularly as
an assistant district attorney in Rios' courtroom, appearing mostly
on motions to suppress evidence or statements.
"There's no question that
any conviction obtained where both the judge and Ms. Lutsky were
involved in should be reviewed," defense lawyer Todd Greenberg said.
"If the allegation is borne out to be true, then the court system
should look at these cases."
Greenberg said one of his
clients, Kishore Sumasar, 29, served three years on a drug charge
after appearing before Rios. He plans to order the archived court
records next week.
The affair allegation was
made by the judge's ex-law secretary, Judith Memblatt. Defense
lawyer Ron Kuby cited the alleged affair when he sought a new trial
for a convicted murderer.
Kuby is arguing that Rios'
relationship with Lutsky led the judge to coach another prosecutor,
Eugene Reibstein, to help him convict Kuby's client in 2003.
Rios, through a spokesman,
repeatedly has declined to comment because the murder case is still
pending. Lutsky also has declined to comment.
Memblatt, 47, who was fired
by Rios in 2004, made the allegation in a $10 million
wrongful-termination lawsuit filed in Brooklyn Federal Court and in
a complaint to the Commission on Judicial Conduct.
Judge
Accused of Bedding ADA
By Scott Shifrel
New York Daily News
November 16, 2005
 |
| Fired aide Judith Memblatt has
accused Queens judge Jaime Rios of having an improper affair
with prosecutor. |
|
|
A Queens judge was in bed with the district attorney's office -
literally, his ex-law secretary has charged in a $10 million
dollar suit.
The explosive
allegation, which already has come to the attention of the state
Commission on Judicial Conduct, could lead to a new trial for a
convicted murderer, a prominent defense attorney said yesterday.
"A judge is required to
be a neutral arbiter, not a secret, second prosecutor helping to
convict the defendant," said defense lawyer Ronald Kuby.
Kuby filed court papers
claiming state Supreme Court Justice Jaime Rios, 59, had an
"improper sexual relationship" with an assistant district
attorney that led the judge to help prosecutors win a second
conviction against accused killer Tyrone Johnson in 2003.
Rios' relationship with
then-Assistant District Attorney Meryl Lutsky was first alleged
in a complaint filed last year with the Commission on Judicial
Conduct by Judith Memblatt, the judge's former legal assistant.
Memblatt, 47, who was
fired by Rios in 2004, followed up the complaint to the
commission with a wrongful termination lawsuit in Brooklyn
Federal Court that makes the same charges.
In the disciplinary
case, Memblatt said the affair dated back to 1996. She added
Lutsky "clearly implied to me that they did have a sexual
relationship."
Lutsky resigned as
prosecutor in 2000 to go to work for state Attorney General
Eliot Spitzer.
But Kuby claims that
Rios' relationship with Lutsky and the Queens district
attorney's office stacked the deck against Johnson, whose
initial conviction for killing the owner of an after-hours club
was overturned in 2002.
According to Kuby, Rios
and prosecutor Eugene Reibstein met in the judge's chambers
where he coached the assistant by "suggest[ing] ways that the
case against Mr. Johnson should be improved."
Rios and Lutsky
declined comment. The district attorney's office dismissed the
allegations as a rehash by a "disgruntled former court system
employee."
Axed Aide: Judge
Disrobed with Da
By Alex
Ginsberg, Ikimulisa Livingston and Cynthia R. Fagen
New York Post
November 16, 2005
A
married Queens judge carried on a torrid affair with a female
prosecutor while handing out special favors to the DA's office,
including tips on how to win a murder trial, his former
secretary claims.
Judith Memblatt says
she was fired after she charged that her former boss, Supreme
Court Justice Jaime Rios, was "unfit to sit as a judge" because
of an inappropriate affair with Assistant DA Meryl Lutsky.
Memblatt chronicled the alleged relationship because she was
worried it was undermining the rights of defendants prose-cuted
in Rios' court, she told The Post yesterday.
TRYSTED TALE:
A fired secretary claims
Justice Jaime Rios had an affair with
In another
stunning allegation, Memblatt said
ex-Assistant DA Meryl Lutsky (above) and
that Rios also acted as
"an unofficial adviser"
secretly aided prosecutor Eugene
to members
of the Queens DA's office as a favor
Reibstein. Lutsky, at her office yesterday,
for ignoring his
affair with Lutsky.
calls the claims "ridiculous."
Photo: Matthew McDermott
"Basically,
they were willing to do anything to
rush to the judge's side and cover for him rather than determine
if there was a real impropriety. That kind of put them in the
position of covering for the judge. He was beholden to them,"
Memblatt told The Post.
Memblatt said there
were even incidents in court when Rios openly flirted with
Lutsky and on one occasion boldly asked his alleged lover "how
many bedrooms there were in her apartment."
"They both immediately
started giggling," Memblatt wrote in a letter to the state
Commission on Judicial Conduct, which eventually told her they
did not wish to launch an investigation.
She also said that
Lutsky and Rios went missing from court "at length and returned
to the courtroom almost simultaneously." Memblatt said she made
copies of his desk calendar.
She said Rios would
scribble "Meryl Monday" and an "M" next to two dates, July 12
and 13, on a 1996 calendar that he kept. A "K" on his calendar
referred to his wife, Kathleen Pizarro.
Memblatt said Rios also
secretly coached prosecutor Eugene Reibstein without the defense
attorney present in a controversial murder case that resulted in
a conviction.
"When I saw Mr.
Reibstein enter the chambers, and when I heard what the judge
was discussing, I was just sick to my stomach over it," she
said. Lawyers for convicted murderer Tyrone Johnson are now
requesting a retrial in the fatal shooting of nightclub owner
LeRoy Vann in 2000.
Johnson's mother,
Dorethea, said she was horrified when she learned the
allegations.
"I thought he was a
fair judge, but he was not. Give my son back to me, leave us
alone," the incensed woman said. "It should be dismissed. They
did too many things that are wrong."
But Queens DA Richard
Brown said the defendant's conviction was properly obtained.
The legal secretary is
now suing her former boss in federal court for wrongful
termination.
"This situation so
grossly compromised the rights of the defendants and destroyed
the integrity of the proceedings that to ignore its existence
would have been unethical," she said.
Lutsky, 38, who left
her ADA job in February 2000, vehemently denied the allegations.
"That's ridiculous.
It's absolutely untrue," she told The Post.
Lutsky said she left
after seven years to work in the state attorney general's office
in Westchester.
"I am categorically
denying it. I don't like my name being besmirched," she said,
adding that she didn't even recall Memblatt.
Neither Rios nor his
lawyer returned calls for comment.
Reibstein declined
comment.
Johnson's lawyer, Ron
Kuby, said, "Generally, I don't care who Judge Rios is screwing
as long as he's not screwing my client. But the conclusion that
Judith has drawn is that the judge's long-term improper sexual
relationship created the conditions of favoritism to the DA's
office."
Additional reporting by
Jennifer Fermino |
State
Commission on Judicial Conduct
Disciplines Judge James R. Pastrick
September 6, 2005
Key excepts from the
decision are as follows:
"As found by the Commission, Judge Pastrick raised the subject of
his daughter’s employment in a conversation with a store employee
about court business. The Commission stated: "While attempting to
help his daughter find employment, [the judge] should have been
especially careful to avoid any conduct that might convey that he
was using his judicial status to further private interests."
Instead, by mixing judicial and personal matters, the judge
""appeared to be trading on his judicial office in order to benefit
his daughter’’s interests," contrary to the ethical rules."
"The ethical standards prohibit a judge from lending the prestige of
judicial office to advance the private interests of the judge or
others and to avoid even the appearance of impropriety (Sections
100.2 and 100.2[C] of the Rules Governing Judicial Conduct).
Respondent violated these provisions by his admitted conduct when,
while visiting the Food-Mart to discuss procedures in a bad check
case involving the store, he asked a store employee whether there
were any positions available, said that his daughter was looking for
a job and picked up an application
for her. Later, respondent personally delivered the completed
application to the store."
"While attempting to help his daughter find employment, respondent
should have been especially careful to avoid any conduct that might
convey that he was using his judicial status to further private
interests. Instead, by raising the subject of his daughter’’s
employment during a conversation with a store employee about court
business, respondent appeared to be trading on his judicial office
to benefit his daughter’s interests. In that context, respondent’s
discussion of procedures in a bad check case involving the store
could easily be perceived as an explicit reminder of
his judicial power, intended to intimidate or influence the store’s
hiring decision."
"Regardless of respondent’s intent, he should have realized that his
actions on his daughter’s behalf, in which he mixed judicial and
personal matters, could be construed as trading on the prestige of
the judiciary to advance private interests, in violation of the
ethical standards. As the Court of Appeals has stated, judges must
recognize that "any actionstaken in the public sphere reflect,
whether designedly or not, upon the prestige of the judiciary" and
"must assiduously avoid those contacts
which might create even the appearance of impropriety." Matter of
Lonschein, 50 NY2d 569, 572, 573 (1980). See also, Matter of McKeon,
1999 Annual Report 117 (Comm. on Judicial Conduct) (judge improperly
used the prestige of judicial office to advance private interests by
writing a letter on judicial stationery to the corporation counsel
of the City of New York, a frequent litigant in his court, seeking
to expedite the hiring of a former court employee with whom he had a
personal relationship). While respondent’s judgment may have been
clouded by a
desire to help his daughter, that does not excuse his ethical
transgressions."
The full official decision is at:
http://www.scjc.state.ny.us/Determinations/P/pastrick.htm
Better to
Know the Judge
As an Adult Home Deteriorated,
a Veteran Jurist and a Lawyer Shared Cocktails and Dinner
By Tom Robbins
The Village Voice
August 9, 2005

Another
report of insider trading in the Brooklyn courts arrived in late
July from the state's Commission on Judicial Conduct. This one
produced more sighs than fury. Years after editorial pages had spent
their wrath condemning Brooklyn's judicial politics as a school for
scandal, here was another censure of another veteran judge for
failing to reveal his ties to yet an other politically wired
attorney practicing before him. Even the names were predictable.
Supreme Court Justice Richard Huttner,
Machine challenger: Judge Margarita
L. a clubhouse
regular, had never told
Torres campaigns for Surrogate's
Court other
lawyers in a case he adjudicated
photo: Willie Davis/Veras
about his clubhouse regular, about his friendship with defense
counsel Ravi Batra, former law partner of assemblyman and Democratic
county leader Clarence Norman Jr. The panel reported that Huttner
neglected to tell plaintiffs that while he was hearing their case he
and his wife were having cocktails with Batra and his spouse, or
that the judge had also attended a wed ding anniversary and a
memorial service with the Batra family. Or that he and the attorney
had shared "drinks, lunch, and dinner together on numerous
occasions." Or that he thought so highly of Batra he had awarded the
lawyer 11 separate fiduciary appointments.
What to do?
Huttner, 70 years old,
caught a break. On the proviso that he will permanently retire on
December 31, the panel "reluctantly" let him off with censure. Case
closed. The report made for a four-inch wire service story in the
Times; it never made it past the borough section in the Daily
News.
But not since Judge Victor
Barron, another clubhouse hack, was caught demanding $115,000 to fix
the case of a maimed three-month-old baby has a story penetrated so
near to the rotten heart of Brooklyn's judicial politics.
Batra's appearance before
Huttner was on behalf of a wretchedly deteriorated adult home run by
Norman's father, Re verend Clarence Norman Sr., pastor of one of
Brooklyn's largest churches. In Baisden et al. v. Pacific
House Residence for Adults, lawyers for the home's residents,
most of them the formerly homeless with varying degrees of mental
problems, were seeking to block Norman Sr.'s efforts to sell the
building and evict them. At the time, Reverend Norman was trying,
with Batra's help, to stay one step ahead of state regulators who
were being forced to act on years of complaints of callous care and
grievous conditions at the home.
When I visited Pacific
House in the summer of 2000 while the case was before Huttner,
residents were aimlessly roaming the streets ("A
Ministry of Neglect," June 28––July 4, 2000). Several
told me they were terrified about what would befall them. The most
cogent understood exactly what was going on. One woman, Clara
Taylor, had formed a residents' council, which had sought out legal
services attorneys. Taylor had personally confronted Norman Sr.
about the situation. The reverend had pled poverty. While the home
collected $60,000 a month from the residents' disability checks, he
said he was hobbled by a poor cash flow. Additional government
grants had been denied after inspectors found rampant vermin,
unsanitary bathrooms, and poor care.
Taylor had also cornered
the reverend's son when the assemblyman attended a street fair near
the home. She had pointed to a urine-soaked resident, sitting
mumbling and untended on a nearby stoop. "I asked him if he would
help. He said, 'I'm glad you're concerned,' and promised to speak to
his father," Taylor told me.
But when I got Assemblyman
Norman on the phone that summer he said that his only involvement
was to ask his partner Batra to represent his father. Batra got
results. Before Huttner, the lawyer was able to win his client
sufficient breathing room to negotiate a sale of his property minus
its troubled residents, who were dispersed elsewhere in the city to
another politically tied organization. It was "a graceful exit," Batra told me then.
Later this month, after
long delays, Assemblyman Norman is finally due to go to trial on the
first of four indictments brought against him by Brooklyn District
Attorney Charles Hynes. The county leader stands accused of double
billing for his gas receipts, failing to disclose a $2,700 in-
kind contribution from a
lobbyist, misfiling a $5,000 campaign check, and compelling judicial
candidates to use favored vendors.
Several of the charges
appear shaky. But on any moral scale, they are far outweighed by the
outrage of Pacific House and the casual use of Brooklyn's Democratic
judicial-political complex to defend it. Yet no law enforcement
office looked to see if there were any penal code violations there.
It was considered business as usual; a crassly cynical business
perhaps, but not criminal. Meanwhile, conveniently for both Hynes
and Norman, the first jury's verdict isn't likely to be heard until
after the September 13th primary, thus sparing one or the other a
major embarrassment.
That Tuesday, Hynes faces
his first competitive race for re-election since he won office in
1989, with three challengers seeking his job. It is an important day
for Norman as well. He's hoping his candidate for D.A., an
undistinguished, clubhouse-bred state senator from east Brooklyn
named John Sampson, can ride a tide of African American votes to
unseat Hynes. Another important goal for the embattled leader is to
try to hold on to the Surrogate's Court judgeship, the single most
lucrative judicial post in the borough. The position had been held
by another Norman candidate, Judge Michael Feinberg, who bizarrely
won the open seat in 1996 on a reform platform. Feinberg even won
the Times' endorsement that year, telling its editorial board
he would have a panel "screen appointments and recommend changes in
how the place was run."
Of course he did no such
thing. He immediately appointed a longtime Norman ally, East
Flatbush Democratic district leader Marietta Small, as public
administrator, a job that calls for competence and sensitivity in
the handling of estates of the deceased. Small brought neither to
the job. Two separate audits have chastised Small, who still holds
her $91,000-a-year post, with bungling multiple cases and losing
track of assets.
For the profitable job of
counsel to the public administrator, Feinberg held no interviews,
instead selecting his friend and neighbor Louis Rosenthal, whose
closest experience in the surrogate business was his father's
service as public administrator in the early 1960s. Rosenthal
promptly began to collect an 8 percent fee for every estate that
crossed his desk, 2 percent more than counsels in other boroughs. He
did so without filing the required affidavits describing what he'd
done to earn the money. This was not a problem for Feinberg,
however, who rubber-stamped more than $8 million in payments to his
friend.
Such pillaging probably
would have rolled merrily along had not two Daily News
reporters, Nancie Katz and Larry Cohler-Esses, exposed the scheme in
May 2002. In the wake of their stories, the Attorney General's
Office and the Commission on Judicial Conduct each opened
investigations. Rosenthal was forced out. In late June, the state
Court of Appeals upheld the judicial conduct panel's ruling that
Feinberg should also be removed. The judge had admitted to the
commission that he had only "skimmed" the rules of office, and
somehow missed the one about required affidavits. The panel found
him "incredible, evasive, and unreliable."
Norman's replacement
candidate for the office is a protéégéé, Supreme Court Justice Diana
Johnson, who attends Clarence Norman Sr.'s First Baptist Church in
Crown Heights. He has a backup candidate, Judge Lawrence Knipel, who
has gotten good marks on the bench but whose independence has been
questioned since his wife is a district leader and Norman loyalist.
The third candidate is
civil court judge Margarita Lóópez Torres, who has been tilting her
lance at Norman's machine ever since he refused to back her for
re-election in 2002. The reason? Lóópez Torres refused to accept a
political appointee as her law clerk ("The
Judge Who Said No," July 31––August 6, 2002).
In the surrogate's race,
Lóópez Torres has pledged to do all the things Feinberg claimed he
would nine years ago, and more. "I am going to structure the court
in a way it serves the people," she said under a hot noon sun at a
City Hall press conference last month. "The integrity of this court
has been challenged," she said. "I will change that."
http://www.villagevoice.com/news/0532,robbins1,66692,5.html
NY Judge
Censured, Leaving Bench
By Tom Perrotta
New York Law Journal
New York Lawyer
July 27, 2005
Brooklyn Supreme Court
Justice Richard D. Huttner has agreed to leave the bench at the end
of the year after being censured for a second time in less than four
years, the State Commission on Judicial Conduct announced yesterday.
The commission indicated
that it would have preferred to remove the judge from the bench, but
said it was "constrained" by the fact that it could not have
completed a disciplinary proceeding without his cooperation before
the end of the judge's current term in December. In agreeing not to
seek recertification, the commission said, Justice Huttner, 70, had
"acknowledged his misconduct."
"The judge's departure from
office was an essential element of this stipulated censure," Robert
H. Tembeckjian, the commission's administrator and counsel, said in
an interview.
The commission faulted
Justice Huttner, who has been sitting in Queens since 2002, for
presiding over a case in which a long-time friend, prominent
Brooklyn attorney Ravi Batra, represented a party.
Justice Huttner did not
inform the opposition of his relationship with Mr. Batra, with whom
he has frequently dined and socialized since the mid-1990s. They
have visited each other's homes and Justice Huttner also attended
Mr. Batra's wedding anniversary party, according to the commission.
Between 1996 and 1999,
Justice Huttner appointed Mr. Batra as a fiduciary in 11 cases. In
one 1998 case, he appointed Mr. Batra receiver and counsel to
Cypress Hills Cemetery. He continued to socialize with Mr. Batra
while the case was before him.
The conduct commission
singled out another case for its strongest criticism: Baisden v.
Pacific House Residence for Adults Housing Development Fund
Corporation .
Mr. Batra represented two
of three defendants in the case, which involved an adult home whose
president was Clarence Norman Sr., the father of the Brooklyn
Democratic leader Clarence Norman, who was once a member of Mr.
Batra's law firm. Justice Huttner did not disclose his relationship
with Mr. Batra to attorneys, nor did he reveal that he had awarded
Mr. Batra fiduciary appointments. His failure to do so violated the
standards of judicial conduct, the commission found in a unanimous
ruling.
"At the very least,
[Justice Huttner] should have disclosed the relationship so that the
parties and their attorneys could have had an opportunity to
consider whether to seek his disqualification," the commission
wrote.
The commission said a
mitigating factor was that Justice Huttner ultimately played a
"relatively small" role in the conclusion of the Baisden suit. The
parties presented him with an agreed-upon stipulation and he signed
it "so ordered."
In 2001, Justice Huttner
was censured for using the prestige of his office to advance private
interests when he actively participated in litigation involving the
board of his cooperative. Though the cases involving Mr. Batra
predated the previous sanction, the conduct commission said that the
timing should not mitigate the current penalty.
"The record establishes
that respondent lacks sensitivity to the special ethical obligations
of judges and indicates the need for a severe sanction," the
commission wrote.
Mr. Batra was recently at
the center of another judicial sanction. In April, Manhattan Acting
Supreme Court Justice Diane A. Lebedeff was censured for presiding
over a personal injury suit in which Mr. Batra was a plaintiff.
The two have a personal
relationship, and Justice Lebedeff at times excused opposing counsel
so she could engage in "gossip" unrelated to the case, according to
the commission's ruling. She also appointed Mr. Batra to a
guardianship that paid him $84,000 while his personal injury suit
was pending. The suit was eventually settled for $225,000. Justice
Lebedeff was reassigned to Civil Court shortly after her sanction,
the second censure of her career.
In a statement after the
release of the Huttner decision, Mr. Batra said the ruling had
created a "new and higher standard" for judges that should be
applauded by the bench and the bar. In an interview, he added that
since the Lebedeff ruling, he has been telling clients and opposing
counsel if he has any relationship at all with a member of the
bench.
"The lawyers don't have a
problem, because they all have the same thing," Mr. Batra said. "No
member of the bar or bench who values their lifelong reputation will
sully their reputation for a case or a client, and that serves to
enhance public confidence."
Mr. Batra said Justice
Huttner is ailing from a heart condition that recently required
surgery. The judge could not be reached for comment. His attorney,
Jerome Karp, was unavailable.
http://www.nylawyer.com/display.php/file=/news/05/07/072705b
Panel Raps
Judge for Keeping Mum on Att'y Pal
By Nancie L. Katz
Daily News Staff Writer
July 27, 2005
For the second time in four
years, the state's judicial watchdog censured a Brooklyn judge -
this time demanding that he retire because he presided over a case
involving a close friend without letting the other side know.
Supreme Court Justice
Richard Huttner is the second jurist to get in trouble with the
state Commission on Judicial Conduct for having a personal
relationship with politically connected lawyer Ravi Batra - and not
telling the opposing attorneys about it.
Huttner has had a "close
social relationship with" Batra since the mid-1990s, the commission
said, and awarded the lawyer 11 lucrative appointments between
1996-1999.
"They have been to each
other's homes, and [he] has attended various of Mr. Batra's family
events," the commission wrote. "They have had ... drinks, lunch and
dinner on numerous occasions."
Nonetheless, since June
2000, while presiding over a case involving Batra, Huttner did not
tell the attorney general's office any of that.
"Even if they did not
discuss the merits of Mr. Batra's case during their out-of-court
meetings, an appearance of impropriety would be inevitable," the
commission said.
But the commission did not
charge that Huttner favored Batra in the case, which was settled.
The commission demanded the
70-year-old jurist step down at the end of the year, citing its 2001
censure against him for using his judicial position to improperly
sway a judge to rule in his co-op's favor in a dispute with a
restaurant. Huttner otherwise could have sought state approval to
stay on until the age of 76.
"The retirement was an
essential element of the commission's agreeing" not to pursue
disciplinary charges against him, said its administrator, Robert
Tembeckjian.
Huttner and his attorney
did not return calls.
Batra declined to address
the specifics of the commission's ruling.
"Every lawyer
and former judge who is now a lawyer is now required to put on the
record any relationship that exists with any party or lawyer or the
court on the record," said Batra. "This will serve to ... to enhance
public confidence."
A Brooklyn Judge, Censured, Is Retiring
The New York Times
July 26, 2005
ALBANY - A Brooklyn judge
has been censured as part of an agreement that calls for him to
retire by end of the year for failing disclose his close
relationship to a politically connected lawyer who appeared before
him, officials said Tuesday.
The judge, Justice Richard
D. Huttner of State Supreme Court in Brooklyn, was censured by the
state's Commission on Judicial Conduct for presiding over a case
five years ago without telling any of the parties involved that he
had what the commission called "a close social relationship" with
one of the lawyers involved, Ravi Batra.
Mr. Batra, the lawyer, was
a close associate of Assemblyman Clarence Norman Jr., the head of
the Brooklyn Democratic Party.
Mr. Batra hired Mr. Norman
to work at his Manhattan law firm, and Mr. Norman put Mr. Batra on a
panel that helped choose judges in Brooklyn.
In the case that led to
Justice Huttner's censure, Mr. Batra represented Mr. Norman's
father, who was closing his home for the mentally ill.
2nd Judge
Censured for Link to Same Attorney
Newsday
by Anthony M. Destefano
July 27, 2005
Judges who are friends with attorney Ravi Batra should best tread
carefully.
For the second time this year, a State Supreme Court justice has
been censured after a close personal friendship with the politically
connected attorney created the appearance of impropriety.
A state judicial watchdog body yesterday recommended that State
Supreme Court Justice Richard D. Huttner of Queens be censured
because he presided over a lawsuit in which Batra, who is a close
friend of the jurist, represented one of the parties.
The Commission on Judicial Conduct said Huttner, 70, agreed to
accept the public censure and retire at the end of the year. As part
of the agreed-upon disposition of the case, Huttner will not apply
for certification to remain as a judge for another two-year term
beyond the age of 70 as would have been his right, the commission
said.
According to a two-page ruling released yesterday, Huttner continued
to socialize with Batra while the attorney appeared before him in
litigation.
"Even if they did not discuss the merits of Mr. Batra's case during
their out-of-court meetings, an appearance of impropriety would be
inevitable," the commission stated, adding that Huttner never
disclosed his social relationship with the attorney to other lawyers
in the case.
The commission noted that Huttner was censured in 2001 for "lending
the prestige of judicial office to advance private interests" in a
lawsuit involving his co-op board.
The co-op issue showed that Huttner "lacks sensitivity to the
special ethical obligations of judges and indicates the need for a
severe sanction," the commission said.
In yesterday's ruling, the commission noted that Batra had received
a number of court appointments from 1996 to 1999.
In April, State Supreme Court Justice Diane A. Lebedeff of Manhattan
was found by the commission to have shown a "glaring insensitivity"
to her obligation to avoid the appearance of impropriety by
presiding over a lawsuit brought by her friend Batra.
In a telephone interview with Newsday, Batra said that one of his
adversaries in the litigation, the New York State attorney general's
office, was already on notice that Huttner had given him a court
appointment in a different case. He said the lawsuit in the latest
Huttner matter was settled without the need for a decision by the
judge.
A secretary in Huttner's office in Long Island City said the judge
was on vacation. Jerome Karp, who represented Huttner before the
commission, couldn't be reached for comment.
Judge
Removes Himself From All Criminal Cases
Miami Herald
July 13, 2005
Senior U.S. District Judge
James Lawrence King has removed himself from all criminal cases
because his secretary's husband has been charged in a
marijuana-growing investigation.
King is not a subject of
the probe. He has stopped presiding over criminal cases until the
investigation is completed by federal authorities.
He declined to comment
Tuesday on his temporary removal from the criminal docket, which was
first reported by The Daily Business Review.
His secretary, Sandra Diaz,
came under the scrutiny of federal prosecutors after they discovered
that she passed along copies of public records downloaded from a
court website to her husband, Jorge Diaz, before his arrest on
marijuana conspiracy charges this spring. The online site, known as
PACER, requires a subscription.
Those court-record
printouts dealt with the earlier arrests of two of her husband's
alleged associates.
Federal prosecutors are
investigating whether the judge's secretary was involved in her
husband's alleged criminal activities, which included a ''grow
house'' in Loxahatchee. She has not been charged.
Federal
Judge Skips Criminal
Cases as Cops Target His Secretary
By Dan Christensen
Miami Daily Business Review
July 11, 2005
For the second time in two
months, Senior U.S. District Judge James Lawrence King in Miami has
removed himself from all his criminal cases as federal and state
agents have targeted his longtime secretary and her husband in a
drug and money laundering probe.
Federal prosecutors in West
Palm Beach believe that King's secretary, Sandra Diaz, passed copies
of court documents to her husband, Jorge Diaz, shortly before his
April 29 arrest in Key Largo on federal marijuana conspiracy
charges.
In court filings,
prosecutors described the items she passed to her husband as
computer printouts of all court documents regarding the arrests of
two of Jorge Diaz's alleged associates at his marijuana "grow house"
in Loxahatchee, Fla. The printouts allegedly were downloaded from
the online PACER system, which is publicly accessible to
subscribers.
In an interview June 8,
Judge King said his initial recusal on May 16 had nothing to do with
rumored legal difficulties of a member of his staff. King
acknowledged that a relative of that staffer had been indicted on
federal charges but he would not disclose the circumstances or
further identify the individuals.
There is no indication that
the government suspects King of any wrongdoing. Neither King --
who's 77 and formerly served as chief judge of the Southern District
of Florida -- nor current Chief Judge William J. Zloch returned
calls for comment last week. Miami solo practitioner Mario S. Cano
represents Sandra Diaz. He said Diaz would not comment on the
matter.
Observers say King's
decision to abandon his entire criminal docket twice in such a short
period of time is extraordinary. "I'm unfamiliar with any equivalent
situation ever occurring," said Federal Public Defender Kathleen
Williams, who remains puzzled by King's actions.
Meanwhile, the 11th U.S.
Circuit Court of Appeals in Atlanta last week declined to prohibit
the type of direct case transfers between judges that occurred after
King removed himself from his criminal cases the first time in May.
The transfers from King to U.S. District Judge K. Michael Moore were
done according to an unpublished and previously undisclosed Local
Policy Manual. But the transfers contravened published Local Rules.
The 11th Circuit, without
comment, denied a petition for a writ of mandamus by Miami attorneys
Howard and Scott Srebnick that sought to prohibit judges in the
Southern District from using the unpublished court rule to reassign
cases to each other.
Lawyers Surprised and Upset
Many South Florida lawyers
were surprised and upset when the Daily Business Review first
reported on the unpublished manual last month, and they demanded
that the Southern District of Florida publicly disclose the manual.
The court has refused to do so.
The unpublished rule
contravenes published Local Rules, which provides for the blind and
random assignment of cases by the federal court clerk. Under the
published Local Rules, recusing judges may not influence the
selection of their successors.
Howard Srebnick is
defending former Hamilton Bank chief Eduardo Masferrer in his fraud
and conspiracy case. King transferred Masferrer's case directly to
Moore on May 16 when King initially recused himself from all 21 of
his criminal cases. That spurred Srebnick to ask Moore to send all
those cases to the clerk for random reassignment.
In seeking to justify the
direct transfer, Moore, in a written order, cited a rule in the
Local Policy Manual that he said gave judges the authority to
"confer and directly transfer all or any part of a case on the
judge's docket to any consenting judge."
Moore did not rule and sent
the matter to Chief Judge Zloch for a final decision. On June 9,
Zloch ruled that King's original recusal was actually not a recusal.
Zloch wrote that "it is clear that said order was intended to be an
order of transfer" under the Local Policy Manual. He did not explain
how that was made clear to him.
The Srebnick brothers
appealed. Among other things, they attacked what they called the
district court's "disregard of the published Local Rules in favor an
unpublished policy manual.
In an interview, Howard
Srebnick said he was disappointed in the 11th Circuit's decision,
contending that public knowledge of the investigation of King's
secretary might have made a difference in the outcome. "Perhaps the
appellate court would have ruled differently had these circumstances
been disclosed," said Srebnick, a partner at Black Srebnick &
Kornspan of Miami.
Three weeks after
transferring his cases to Moore, King decided to start taking
criminal case assignments again.
But on June 16, King
reversed course again when he asked Chief Judge Zloch to reassign
all his criminal cases. King's "oral request" prompted Zloch to
write an administrative order that parceled out King's new criminal
docket at random. At least eight of King's cases were assigned to
six different judges.
Pot Supply Store
After King first dropped
his criminal docket in May, courthouse sources identified his
secretary, Sandra Diaz, as the member of King's staff whose husband
was under investigation. Sources described her as a "wonderful
person" who has worked as King's secretary for about a decade.
On May 13, a federal grand
jury in Miami indicted her 38-year-old husband, Jorge, twice on drug
charges. In the first case, Diaz was charged with conspiring with an
acquaintance, Tommy Rodriguez, to possess and distribute marijuana
grown at the Loxahatchee house and at a residence in Royal Palm
Beach. In the second case, the indictment says Diaz conspired with
his cousin, Pedro Correa, 31, "to manufacture with intent to
distribute" marijuana at the home in Royal Palm Beach.
Diaz faces up to 40 years
in prison and a $2 million fine if convicted. His attorney, Stuart
Adelstein of Adelstein & Matters in Miami, did not return telephone
calls seeking comment.
A spokeswoman for interim
U.S. Attorney R. Alexander Acosta also declined to comment.
But court records say the
investigation began when state agents with a money laundering task
force placed under surveillance Gold Coast Hydroponics, a Fort
Lauderdale store "known to supply growers of hydroponic plants,
including marijuana."
A truck registered to Jorge
Diaz was spotted parked there. Agents used Florida Power & Light
records to identify the house in Loxahatchee that Diaz owned, and
conducted "trash pulls" that yielded small amounts of marijuana on
clothing and dryer lint.
Agents armed with a search
warrant raided the home on 78th Place North on April 12. Rodriguez
and his girlfriend, Kyrenia Blanco, were arrested and quickly
cooperated. Rodriguez implicated Diaz, and gave agents enough to
search a second grow house, where more than 100 marijuana plants
were seized.
After further
investigation, Diaz and Correa were arrested April 29. Diaz was
located by agents who tailed his wife, Sandra. He was nabbed at his
in-laws' mobile home in Key Largo.
Money Laundering Probe
Court records say agents
found in Diaz's possession "PACER printouts of all the documents
relating to the arrests of Rodriguez and Blanco, documents that were
believed to have been obtained by his wife, Sandra Diaz." Also found
was a carbon copy of a $25,000 cashier's check from the couple's
joint account, made payable to an attorney who represented Rodriguez
and Blanco.
U.S. Magistrate Judge
Linnea R. Johnson in West Palm Beach ordered Jorge Diaz jailed as a
flight risk and a danger to the community. He appealed the order to
Judge Zloch.
In a June 1 response to the
appeal, Assistant U.S. Attorney A. Marie Villafana in West Palm
Beach disclosed that Sandra Diaz also was under investigation.
"Diaz's wife has recently
been served with a 'target letter,' informing her that she is the
target of a grand jury investigation involving charges of money
laundering, making false statements to law enforcement and narcotics
manufacturing and distributing," Villafana said.
Zloch dismissed Diaz's
attempt to get out of jail. Five days later, Zloch recused himself
from Diaz's case without explanation. The clerk reassigned the case
to U.S. District Judge Kenneth A. Marra in Fort Lauderdale.
http://www.nylawyer.com/display.php/file=/news/05/07/071105d
|
Judge
Knocked off Her High Court
By Greg B. Smith
New York Daily News
May 3, 2005
A Manhattan judge
scolded for handling a lawsuit brought by a personal friend has
been demoted to a lower court, her attorney said yesterday.
Acting Supreme Court
Justice Diane Lebedeff was reassigned to Civil Court in the
weeks after she was censured by the state Commission on Judicial
Conduct.
Last month, the
commission chastised Lebedeff for hearing a multimillion-dollar
suit filed by her friend Ravi Batra against a Brooklyn furniture
store.
Batra, who said he was
injured falling out of a chair sold by the store, sought $80
million, and eventually settled for $225,000 after his case was
transferred to another judge.
The commission found
that Lebedeff, 64, never disclosed her ties to Batra in the six
years she presided over his suit. During that time she had
dinner with him and they exchanged gifts with each other's
families.
This was her second
infraction. In 2003, she was criticized for awarding a lucrative
fiduciary monitorship to her personal accountant.
Since the most recent
censure was made public April 7, Chief Administrative Judge
Jonathan Lippman reassigned Lebedeff from her $136,000-a-year
job as an acting Supreme Court justice to the less prestigious,
$125,000-a-year Civil Court job.
Yesterday, Lebedeff
declined comment, but her lawyer, Benjamin Rabinowitz, said,
"What Judge Lippman decided was appropriate. Judge Lebedeff is a
fine judge and will continue to do her best as a judge, whether
it's in Civil or Supreme [Court]."
Lebedeff
was first elected to Civil Court in 1983 and appointed an acting
Supreme Court justice in 1988.
Censured NY Judge Ousted From Supreme Court
By Daniel Wise
New York Lawyer
New York Law Journal
May 3, 2005
Three-term Civil Court
Judge Diane A. Lebedeff, who has been censured by the state
Commission on Judicial Conduct twice in the last two years, has
been stripped of her acting Supreme Court justice title and
reassigned to Civil Court.
Judge Lebedeff has been
an acting Supreme Court justice since 1988. Chief Administrative
Judge Jonathan Lippman reassigned her to the Civil Court
starting yesterday.
David Bookstaver, a spokesman for the Office of Court
Administration, said he could not comment on judicial
assignments.
Judge Lebedeff's lawyer, Ben A. Rubinowitz of Gair, Gair &
Conason, said that she "accepts her new assignment and will
continue to do what she does best which is being a wonderful
judge."
Just over 100 lower court judges in the state have been assigned
as acting Supreme Court justices. They are rarely sent back to
the court where they were originally elected or appointed, and
when they are, the re-assignment is widely viewed as a demotion.
Acting Supreme Court justices are paid the same annual salary as
elected justices, $136,700. Civil Court judges' earn $125,600 a
year.
Justice Lebedeff's Supreme Court caseload has been reassigned to
Justices Carole R. Edmead and Edward H. Lehner.
Last month, the conduct commission censured Judge Lebedeff for
failing to reveal that she had "a significant social and
professional relationship" with a plaintiff in a personal injury
case before her.
The commission faulted her for excusing the defense lawyers on
approximately five occasions so she could "gossip" and engage in
other conversation unrelated to the litigation with the
plaintiff in the case, lawyer Ravi Batra, who was representing
himself.
The commission also noted Judge Lebedeff had appointed Mr. Batra
to a guardianship post for which he was paid $84,000.
Mr. Batra, who was previously the vice chairman of the Brooklyn
Democratic Party's screening panel, has said his relationship to
the judge was well known to the defense lawyers and none of them
objected at the time.
In 2003, the conduct commission censured Judge Lebedeff for
appointing her accountant, also a personal friend, to cases for
which the accountant was paid $21,000 over four years. During
that time the accountant prepared Justice Lebedeff's tax returns
without charge.
In a 2001 report examining the influence of politics on court
appointments, OCA Special Inspector General Sherrill R. Spatz
made reference to a judge having appointed "a high ranking bar
official with whom the judge was friendly" as an example of a
well-connected person getting a court appointment. Though the
report did not mention Judge Lebedeff by name, the Law Journal
at the time reported that she was the judge Ms. Spatz was
referring to (Dec. 4, 2001).
Yesterday, Mr.
Rubinowitz said that the conduct commission had examined the
matter referred to in the 2001 report and found no basis for
bringing any charge against Judge Lebedeff.
Too Weak to Judge
Editorial
New York Daily News
April 11, 2005
What happens when a judge doesn't grasp the meaning of
objectivity? Or lacks an ethical compass? Or can't discern
between basic notions of right versus wrong?
Answer: Not very much
if you're talking about a New York judge. In the last week, two
state judges who richly deserved to be axed were, instead, given
meaningless rebukes by the panel responsible for disciplining
wayward jurists.
It's vexing in a state
where most high-ranking judges are chosen through elections in
which candidates run with no opposition. That's why the panel,
the state Commission on Judicial Conduct, is so vital. While
voters can't throw out judges, the commission can. But it rarely
does. Out of the state's roughly 1,300 full-time judges, the
panel ousts only about one a year, not a lot considering the
endless media reports about judicial misconduct.
The problem? Four of
the panel's 11 members are judges. Five are lawyers who argue
cases before the judges they sometimes end up judging. Only two
are nonlawyers.
The panel is led by a
lawyer, Lawrence Goldman, who has voted against booting a judge
who let a friend grossly overbill estates of the deceased.
"The commission tends
to protect their legal peers," said one court veteran.
That may explain why
the panel's punishment of choice is a caution letter carrying no
penalty. The panel has issued 630 of these since 1975.
Examples of the
misdeeds that get soft-pedaled by the commission? Look at two of
its rulings from the last week:
There's Manhattan
Justice Diane Lebedeff, whom the commission censured 17 months
ago for giving her accountant $21,000 in court work while taking
free personal services.
Last week, the
commission again ruled against Lebedeff, this time for presiding
over an $80 million lawsuit filed by a personal friend, lawyer
Ravi Batra. During her six years overseeing the case, the report
said, Lebedeff lunched with Batra and several times emptied her
courtroom so they could "gossip." For good measure, she also
awarded an $84,000 guardianship to Batra during the case.
The panel found
Lebedeff had "an unacceptable insensitivity to judicial ethics."
Her rulings were so slanted toward Batra that an appellate court
said Lebedeff lacked objectivity.
Is this a judge you'd
want to appear before? Never. Yet the commission again opted to
censure repeat-offender Lebedeff. She deserved the hook.
The other ruling
involved Nilda Morales Horowitz, a Westchester Family Court
judge who got caught trying to influence two cases, including a
child custody dispute, on behalf of friends. The panel found she
had tried to steer a divorce case to a judge more favorable to
her friend. On the custody case, it found Horowitz had told the
presiding judge that she was friends with one party and that the
judge should "look out for them." Give her the ax? No way, said
the panel, which recommended censure.
"The Horowitz case
deserved removal," said Gerald Stern, the commission's former
chief counsel. "She tried to affect the outcome of a case
involving the custody of a child, a human life. The legal system
is supposed to be impartial - a concept she doesn't grasp." It's
an issue of knowing right from wrong as a judge."
What does it take to
remove judges? The panel recently recommended firing Brooklyn
Surrogate Judge Michael Feinberg for letting a lawyer friend
overbill estates of the deceased by $2 million. But even here
three panelists voted to censure. Two were judges. The third was
chairman Goldman, who also voted to censure the only two other
full-time judges the commission has removed in recent years
(though he did vote to oust Horowitz). Goldman, a decent man,
lacks the grit needed for judging judges. Maybe his work as a
criminal defense lawyer makes him too sympathetic to defendants.
That's why practicing
lawyers shouldn't serve on the commission. Nor should active
judges. It's just too cozy. The record proves it, with only 35
full-time judges getting tossed in 30 years.
Solution? Appoint
nonpracticing lawyers - i.e., people who know the law but don't
depend on judges for their livelihoods. It would take amending
the state Constitution. A heavy lift, sure. But, hey, the state
budget got passed on time this year. Dare to dream.
|
State
Panel Censures Judge for the 2nd Time in 2 Years
By Andy Newman
New York Times
April 8, 2005
A Manhattan judge has been censured for the second time in two years
by state judicial authorities, who said yesterday that she should
not have presided over a lawsuit that had been filed by one of her
friends.
The judge, Diane A.
Lebedeff, also gave court appointments worth more than $84,000 to
the friend, a lawyer, while presiding over the lawyer's suit against
a company that he claimed had sold him a defective chair. Justice
Lebedeff's friendship with the lawyer, Ravi Batra, included private
lunches and about five instances in which she excused opposing
lawyers from the courtroom so that, in her words, she could "gossip"
with him, according to the State Commission on Judicial Conduct.
Justice Lebedeff, a Civil
Court judge who has served as an acting State Supreme Court justice
since 1988, made several rulings in Mr. Batra's favor in the chair
case. One of the rulings was overturned by an appellate panel that
said she had not been objective.
The judicial conduct
commission, which handed down the censure, wrote that Justice
Lebedeff's "apparent failure to realize that her relationship with
Mr. Batra would raise the question whether her rulings were based
solely on the merits is shocking and suggests an unacceptable
insensitivity to judicial ethics."
Short of removal from the
bench, censure is the strongest discipline meted out by the
11-member commission. Justice Lebedeff was censured in November 2003
for giving her personal accountant court-appointed jobs worth
$21,000 during a period when the accountant did private work for her
for free.
The commission warned the
judge that in view of her disciplinary history "any future ethical
transgressions may be met with a more severe sanction."
Justice Lebedeff and Mr.
Batra became friends in the late 1980's, visiting each other's homes
and going on at least one joint family outing, the commission wrote.
In 1994, Mr. Batra sued a Brooklyn furniture store and several other
parties, claiming that he fell from a chair the store had sold him
and sustained herniated disks, loss of height, worn-down teeth,
heart damage, frustration and anger, among other things. He sought
$80 million.
The case, which dragged on
for more than six years, was randomly assigned to Justice Lebedeff.
She continued to have lunch with Mr. Batra during the case and to
engage in "gossip" sessions with him in her robing room or chambers.
The defense lawyers did not object at the time to the judge's
private conversations with Mr. Batra. In 1999, at Mr. Batra's
request, she disqualified one of the defendants in the case for
missing a deadline. The sanction was overturned on appeal.
In a separate case in 1999,
Justice Lebedeff appointed Mr. Batra to evaluate whether a wealthy
94-year-old woman with Alzheimer's disease needed a financial
guardian. She approved his bills for $400 an hour, nearly double the
usual rate, state investigators found. Mr. Batra was eventually paid
$84,753 from the woman's assets.
The conduct commission
noted that the court appointment signaled Justice Lebedeff's
confidence in Mr. Batra's credibility and integrity. Therefore, the
panel wrote, awarding it while Mr. Batra "was a litigant whose
credibility she would have to evaluate in a personal injury case in
which he was seeking monetary damages created a direct conflict."
Mr. Batra eventually
settled the chair suit for $225,000 after it was transferred to
another judge.
Justice Lebedeff referred
all questions about the censure yesterday to her lawyer, Ben B.
Rubinowitz, who said, "Diane Lebedeff recognizes that she created an
appearance of impropriety, she agreed to the censure, and she wants
to go back to being what she does best, which is being a good judge,
which she has been for two decades."
Mr. Batra said that he had
gained the settlement in the suit on its merits and that his
friendship with the judge had been known to the defendants, who
never made an issue of it.
Judge
Took Pal's Case
By Dareh Gregorian
New York Post
April 8, 2005
A Manhattan judge presided
over an $80 million personal-injury lawsuit in which the plaintiff
was her close friend a fact she never mentioned to the defendant
in the six years she had the case.
The judge also never told
the defense she'd given her pal a politically connected lawyer lucrative financial appointments while the case was ongoing.
unacceptable insensitivity to judicial ethics."
Also, she had been censured
before.
The commission said
Lebedeff had been friends with the plaintiff, lawyer Ravi Batra,
since the late '80s.
Lebedeff never mentioned
that when Batra's suit against Office Furniture Service Inc. landed
before her, the agency said. Batra represented himself in the case,
seeking millions for injuries he suffered when a chair in his office
broke.
While the case was in
progress, Lebedeff also gave Batra court appointments, including one
that netted him $84,000, the commission said.
They also kept socializing,
according to the report.
In one ruling, Lebedeff
found that Batra's opponents had defaulted because they filed their
papers one day past a 45-day deadline. That decision was overturned
by an appeals court, and the case was sent to another judge. Batra
eventually settled it for $250,000.
Batra insisted the defense
lawyers knew he and Lebedeff were friends.
NY Judge
Censured for Seeking
Favorable Treatment for Friends
By Daniel Wise
New York Lawyer
New York Law Journal
April 6, 2005
By a 10-1 vote, the New
York State Commission on Judicial Conduct has censured a Westchester
Family Court judge for trying to help friends win favorable
treatment in two cases.
The misconduct of Judge
Nilda Morales Horowitz was compounded when she gave inaccurate
information to the commission's investigative staff while being
questioned under oath, according to the commission's determination
released yesterday.
Judge Horowitz had
acknowledged misconduct based upon a stipulated set of facts so the
sole issue before the commission was whether she should be removed
from the bench as its legal staff had recommended.
The majority acknowledged
that the severity of the appropriate sanction was a close question
based upon prior precedents. It nonetheless opted for the lesser
sanction of censure because Judge Horowitz was acting out of
"sympathy for friends and a strong belief in them as parents" rather
than for personal gain.
In dissent, the
commission's chairman, Lawrence S. Goldman, voted for removal
because Judge Horowitz had aggravated serious misconduct by being
"evasive" and possibly "deliberately false" in answering questions
during the investigation.
Judge Horowitz "is looking
forward to putting this unfortunate incident behind her so she may
continue in her service to the people of New York," said her lawyer,
Deborah A. Scalise of Jones Sledzik Garneau & Nardone in Scarsdale.
There was powerful recorded
evidence in the first of the two cases in which Judge Horowitz was
charged with attempting to help a friend, who was once her child's
teacher. In that case, she had left a recorded telephone message in
which she had enlisted another judge's court attorney to help the
friend gain the relief she wanted.
The friend had been
embroiled in litigation with her husband before another Westchester
Family Court judge. Shortly after the friend told Judge Horowitz
that she was planning to file a new proceeding, Judge Horowitz
called the other judge's court attorney —— who had previously been
Judge Horowitz's court attorney —— and told her that the friend did
not have "a good rapport" with the other judge. Judge Horowitz was
recorded asking the court attorney for her "suggestions" as to how
to get the judge to recuse himself.
In the other case, Judge
Horowitz's requests for her friends —— both before and after they
had filed a custody case —— were more elliptical, though at times
suggestive.
According to the
stipulation, Judge Horowitz on six occasions had ex parte
conversations about the friends' matter with the supervising judge
of the Westchester Family Court who handled the initial application
for emergency relief, with the judge to whom the case was assigned,
and with that judge's court clerk and court attorney.
In most of the contacts,
Judge Horowitz stated that the couple, who were trying to win
custody of a then 10-year-old child, were her "friends." In two of
the conversations, though, she went further, and asked the court
clerk to "look after the couple," whom she described as "really nice
people." She also told the judge's court attorney that her friends
were "good parents."
The judge assigned to the
matter recused herself after being contacted ex parte by Judge
Horowitz. The supervising judge of the Westchester Family Court,
Joan O. Cooney, informed Judge Horowitz that the case had been
transferred out of Westchester County because of her intervention,
according to the commission's findings.
The majority noted that
judges who intervene in cases through an ex parte contact violate
the rules of judicial conduct even if they do not make a request for
special consideration. Such conduct, the commission noted, "has long
been condemned as favoritism."
In deciding that censure
was the appropriate sanction, the majority noted that in Matter of
Kiley, 74 NY2d 364 (1989), the Court of Appeals overruled the
commission's removal determination and censured a Suffolk County
District Court judge who had relayed favorable background
information relevant to the sentencing of two defendants, once to a
prosecutor and once to a prosecutor and a judge.
The majority acknowledged
that Judge Horowitz, who had ignored warnings by her supervising
judge that the case should proceed "in the normal course," had
engaged in conduct more serious than that involved in Kiley.
Nonetheless, the majority
found censure the proper sanction because Judge Horowitz had been
motivated by friendship, not personal gain.
Mr. Goldman, in dissent,
found that a lack of candor in Judge Horowitz's testimony, coupled
with her initiatives for her friends, warranted removal.
In questioning Judge
Horowitz about her efforts to recuse the judge in her friend's case,
commission staff asked whether there had been any other instances in
which Judge Horowitz had communications with judges or court staff
about individuals who were litigants before them or about to become
litigants.
At the time, the commission
had not yet received a complaint concerning Judge Horowitz's efforts
concerning the couple's custody matter.
In response to several
queries, Judge Horowitz said she had had no such conversations other
than to note that she had seen people in court.
Mr. Goldman wrote that he
found Judge Horowitz's claim that she had forgotten about her
discussions about the couple "unconvincing."
Her testimony about the
couple came "only four to six months after she had made six requests
for favorable treatment and only three months after she was rebuked
by her administrative judge for causing the assigned judge to recuse
herself. . . . These events are certainly memorable," he wrote.
Judge Horowitz, who was
sitting in White Plains when the actions leading to the
investigation occurred, now sits in New Rochelle.
In 2000, she became the
first Hispanic to win election to a countywide seat in the Ninth
Judicial District, which covers five counties including Westchester.
|
Cozying Up to Judges and Reaping
Opportunity
The Lawyers Who Are Friends of
the Court
Whom You Know In The Courthouse and Not What You Know
By Kevin Flynn
and Andy Newman
New York Times
November 11, 2003
Ravi
Batra practices the kind of law that does not come with
steno pools or 40th-floor conference rooms with views of
Central Park. His office is in a brick building in a
section of Manhattan known as Little India. His legal
pedigree is respectable but unremarkable. His clients
tend to be small companies or people who have been hurt
in accidents.
Yet for much of
the past decade Mr. Batra has been a particularly potent
force in the clubby corridors of New York City
courthouses. He played a role in picking State Supreme
judges.
Ruby Washington/The New York Times
Lawyers
seeking an edge in the unfamiliar world of
At State Supreme Court in Brooklyn,
Brooklyn courts
hired him as their guide.
Ravi Batra is a lawyer who keeps in
Judges who
controlled court appointments-
close
contact with justices throughout
where lawyers
typically manage the assets
the building.
and welfare of the
elderly, the young or
of troubled
companies- gave him 150 of these, worth more than
$500,000 in fees.
Mr. Batra's
success was fashioned in part from long hours and legal
dexterity. But by many accounts it was built on his keen
appreciation for an unspoken truth: that whom you know
in courthouse circles can be just as valuable as what
you know. And Mr. Batra developed a particular knack for
getting to know judges and the politicians who made
them.
He invited them
to dinner and his home. He toasted them at parties. He
made the Brooklyn Democratic Party boss a member of his
law firm. And the boss, Assemblyman Clarence Norman Jr.,
put him on the panel that screened Democratic nominees
for Supreme Court judgeships, a powerful position since
the nomination is tantamount to election in heavily
Democratic Brooklyn.
"He's very well
known," said Justice Reinaldo E. Rivera of the Appellate
Division of the State Supreme Court, when asked how Mr.
Batra came to offer welcoming remarks at his swearing-in
ceremony last year.
Ravi Batra has friendly ties
with
"Everybody
knows Mr. Batra."
political leaders like
Assembly-
man
Clarence Norman Jr., above
who put Mr. Batra on a screening
Indeed, a
review of Mr. Batra's cases and interviews
panel for new judges.
with judges and lawyers who know him provide a glimpse
into a seldom seen corner of the court system where cozy
relationships can play defining roles in who becomes a
judge and who benefits from the decisions that judges
make.
In Mr. Batra's
case, he took the tried and true tools of networking -
schmoozing, flattery, mutual back-scratching -and
practiced them to an extent that tended to blur, or even
ignore, the boundaries between the bench and the bar.
Judges who were
his friends, or who visited his house or who joined him
for dinner, gave him appointments or presided over cases
in which he had a stake, according to court records.
Twice he was awarded fees that state monitors later
found unusually high. In one instance, defendants who
paid Mr. Batra $225,000 to settle his own civil suit
said they never realized he knew the judge in the case
as well as he did..
When
Collegiality Tests Integrity
Of
course, in some New York political and legal circles,
the suggestion that a simple meal between legal
professionals could undermine a judge's integrity seems
naïïve. Certainly, Mr. Batra thinks so.
"The collegial
meeting of lawyers on both sides of the aisle with the
bench is an absolute plus to the functioning of the
profession," Mr. Batra said in an interview.
The judges in
Mr. Batra's cases said in interviews that their
decisions were made on the merits, and that Mr. Batra
received no favors.
For his part,
Mr. Batra likened his behavior to that of President
Franklin D. Roosevelt, who used to play cards with
Supreme Court justices, he said, only to have them
overturn his legislation several days later.
"If you're a
person of integrity, the question ends there," he said.
"And if you're not a person of integrity, all the
appearances in the world don't give you integrity. So I
prefer substantive integrity than apparent integrity."
But experts say
faith in the courts is built on such appearances.
Several years ago, after the fallout from one of Mr.
Batra's appointments, state officials decided to explore
whether such appointments were controlled by politics.
Their 2001 report found the system awash in cronyism.
"Many of the
recipients of multiple and lucrative appointments in
guardianship cases had connections to judges, political
parties or court-system personnel," it said, "raising
concerns that they were selected based on factors other
than merit."
Mr. Batra's
name has surfaced again this year as District Attorney
Charles J. Hynes of Brooklyn investigates the culture of
the borough's courthouse. Prosecutors have subpoenaed
Mr. Batra's business records. They have sent a
cooperating witness into a meeting with him, wearing a
concealed recording device, to discuss whether money can
influence the judicial selection process.
Nothing
incriminating came from the tape, and Mr. Batra, 48,
said he did not believe the conversation touched on such
matters. His lawyer, Randy M. Mastro, said he has been
told that Mr. Batra, who has met voluntarily with
prosecutors, is not a target of the investigation.
The uproar,
however, has taken a toll. Mr. Batra resigned from the
screening panel. Mr. Norman, who was indicted several
weeks ago on unrelated larceny charges, left Mr. Batra's
law firm. And in a severe indignity to a man who thrives
on access, the chief judge in Brooklyn, Ann T. Pfau,
told other judges that she will not take calls from Mr.
Batra.
Such scrutiny
of how Brooklyn picks its judges would most likely not
have arisen if the candidates approved by the screening
panel had been uniformly good. But in the past two
years, four Brooklyn judges serving in the Supreme
Court, the state's highest trial court, have gotten into
trouble, including two who were charged with taking
bribes.
Mr. Batra did
not come by his political connections easily, as either
the son of a judge or the protéégéé of a political
leader. He was born in India and grew up in Queens. He
graduated from Pace University and Fordham Law School,
taught at Pace for a number of years and practiced law,
often with a certain flair.
Court
submissions might be sprinkled with florid language or
exclamation points. His stationery was emblazoned with
his initials set against the background of a golden
eagle.
His job at Pace
ended in 1986 when the university did not renew his
contract. He filed a discrimination suit but lost, at
trial and on appeal. The appellate judge described his
filings as "raving and often incomprehensible."
But over time,
Mr. Batra, a man with the practiced grace of a
professional diplomat, built his contacts. He served on
scholarly panels, joined the Jewish Lawyers Guild and
the Puerto Rican Bar Association, among other groups,
and relied on a personality that people describe as
charming or, well, forward.
In particular,
he showered attention on judges. He praised them in
letters to newspapers. He invited them to his Christmas
parties. As an official of several bar associations, he
ran affairs where judges were given Judicial Sunshine
Awards his own creation. The court in his lexicon was
"the Cathedral of Justice" and judges were "jewels in
the crown."
"Each judge
that appoints you places his robes in your hands for
safekeeping," Mr. Batra said.
For lawyers and
judges, the sharing of cocktails and canapéés at bar
association dinners has long been a fact of courthouse
life. But Mr. Batra, according to several judges,
pressed for a rare level of familiarity. He roamed the
Supreme Court like it was his country club, they said,
at times visiting judges unannounced in their chambers,
or parking his car, with permission, in the courthouse's
reserved lot.
Some judges
felt uncomfortable. Justice Michael L. Pesce recalled
the first time he met Mr. Batra. The lawyer greeted him,
he said, by kissing him on both cheeks.
One justice,
Milton Mollen, who has since retired, said Mr. Batra
invited him to dinner at his home 10 years ago. Several
days later, Mr. Mollen began receiving calls from other
judges, he said, telling him that they would be at the
"birthday party" Mr. Batra was giving for him.
Mr. Mollen said
he thought he was being used and told people not to go.
But he drove to Mr. Batra's home in New Rochelle. "I
told him off and left," he said.
Mr. Batra
denied Mr. Mollen's account and said the judge had
helped to plan the event.
An Appointment
to Screen Judges
In 1995, Mr.
Batra reinforced his most important political
relationship by adding Mr. Norman to his two-person law
firm. Mr. Norman's chief function, Mr. Batra said, was
handling "introductions" that might result in new
business. Last year, Mr. Norman made $52,000 from the
firm. This year, as part of his salary, the monthly
payments on his $80,000 Mercedes Benz were paid by Mr.
Batra.
After he joined
the firm, Mr. Norman appointed his boss to the
Democratic screening panel for judges. Mr. Norman says
he picked Mr. Batra because he is a good lawyer, an
opinion that other allies of Mr. Batra share.
"He has a very
fertile legal mind and thinks, as we say, outside the
box," said Martin W. Edelman, president of the New York
State Trial Lawyers Association.
Nonetheless,
Mr. Batra came to be viewed largely as Mr. Norman's
surrogate on a panel that critics contend rubber-stamped
the party's favored candidates, using criteria that had
more to do with campaign contributions than legal
acumen.
"There was a
total lack of transparency to the process that allowed
the public to lose confidence that competence,
credentials and integrity were being evaluated in an
independent way," said City Councilman Lewis A. Fidler
of Brooklyn.
Mr. Batra's
popularity as a court appointee picked up drastically
after he became affiliated with Mr. Norman in 1995,
although more than half the assignments came from
Manhattan judges.
Yet some of the
judges who selected him were hardly strangers. Some had
dined with him or been honored at parties he organized.
Good judges, Mr. Batra said, "make an appointment to a
person they know and trust and know the job can be done
rather than look one up through the Yellow Pages."
A few times,
Mr. Batra said, he made calls on judges' behalf when
they sought promotions, but only because they were
worthy. In 1998, for example, Mr. Batra said he tried to
help an acting Supreme Court judge,
Harold
Tompkins, win a permanent spot by calling the
Manhattan Democratic leader, Assemblyman Herman D.
Farrell Jr. In the preceding 18 months, Justice Tompkins
had given Mr. Batra 10 appointments worth more than
$85,000.
Mr. Farrell
denied that such a call took place. Justice Tompkins,
now retired, said he did not know of any such call.
Among Mr.
Batra's closest friends on the bench, according to
interviews, has been Justice Richard D. Huttner in
Brooklyn, who has given him 11 appointments. In 1999,
Justice Huttner was one of the judges honored at a
$250-a-head dinner that Mr. Batra organized at the
Harmonie Club in Manhattan.
A year earlier,
the judge had appointed Mr. Batra to oversee the
troubled Cypress Hills Cemetery on the Queens-Brooklyn
border as its receiver. In that capacity, Mr. Batra set
off a storm in 1999 when, citing their fees, he fired
the cemetery's existing lawyers, two politically
connected men like himself, and appointed his own firm
in their place.
The lawyers
wrote to Democratic leaders complaining that their years
of loyalty had been disregarded. Their letter's
acknowledgment that appointments typically went to the
politically connected had immediate impact. State
investigators began looking into courthouse patronage.
The state attorney general's office asked that Mr. Batra
be removed as the cemetery's receiver.
Justice Huttner
resisted for weeks before removing Mr. Batra as
receiver, but retaining him as the receiver's lawyer. He
resisted again when the attorney general sought in May
2000 to have Mr. Batra completely removed from the case.
The judge said Mr. Batra had done nothing wrong. But Mr.
Batra on his own decided to step down.
The next day,
the lawyer and the judge met socially over drinks at a
restaurant in the judge's Manhattan apartment building.
The next month, they were back together in court. This
time, Mr. Batra was representing Clarence Norman's
father, who was closing his home for the mentally ill.
Should Justice
Huttner have disclosed their relationship in court,
given their friendship? Mr. Batra said no. The judge did
not return calls seeking comment. But it is the kind of
question that has arisen in situations where
relationships develop between lawyers and judges.
Perceptions of
Partiality
The rules that
govern judicial conduct are broad in scope. They
instruct judges to make sure they do not allow their
social and political relationships to create a
perception of partiality. But just such a perception has
arisen in a case where Mr. Batra was friendly with the
judge.
The case, in
1994, concerned a fall Mr. Batra said he had from a
swivel chair in his office. He sued the Brooklyn company
that sold him the chair. He said the fall had left him
with herniated disks, loss of height, worn-down teeth,
heart damage and frustration and anger that "leaks out
in certain relationships," according to court papers.
He sought $80
million —— for his suffering, but also for a patio bar
and a game room with table-tennis and air-hockey tables
"to permit activity without injury or waste of travel
time," the papers said.
The case was
assigned to acting Manhattan Supreme Court Justice Diane
A. Lebedeff, someone with whom Mr. Batra became
friendly. While she was hearing the case, they
occasionally shared a meal, according to interviews.
More significant, she gave him several court
appointments, including a 1999 case that state
investigators found troubling.
In that case,
the judge asked Mr. Batra to evaluate whether a wealthy
94-year-old woman with Alzheimer's disease needed a
financial guardian. Mr. Batra charged $400 an hour for
his work, nearly double the usual rate, state
investigators found. And when he determined the woman
did need a guardian, Justice Lebedeff gave him that
post, too, with the family's consent.
All told, he
made $84,753 in fees paid from the woman's assets. The
investigators noted that he charged $100 for each of 80
short phone calls and never listed their subject matter.
Eight lawyers
involved in the swivel-chair case say that Justice
Lebedeff never told them about these appointments.
Leonard Chipkin, a lawyer who represented the furniture
store's insurer, said she should have.
"In any
personal injury case, credibility is an issue," he said.
"If I make a motion challenging the credibility of the
plaintiff and I've got a judge who trusts this man with
a great deal of money, that's something that I would
have wanted to know."
In an
interview, Justice Lebedeff defended her conduct as
appropriate and impartial. She said she could not recall
whether she had disclosed the appointments in court or
whether she needed to. "If I had thought it was
appropriate to do so, I would have done it," she said.
Mr. Batra said
the judge did not need to disclose the appointments
because the lawyers knew about the relationship, having
sat in a hearing about the woman's case in court one
day.
Mr. Batra
ultimately won a settlement in the swivel-chair case
after six years. Defense lawyers said his case was
helped by several orders from Justice Lebedeff - one of
which was overturned by appellate judges who said
Justice Lebedeff had not objectively reviewed the
history of the case.
Mr. Batra said
the defendants paid him $225,000. The facts, he said,
were simply on his side.
"The
impartiality of the court process," Mr. Batra said,
"substantively cannot be toyed with."
Politics Rule
Judgeships Upstate, Too
By
Leslie Eaton
New York Times
November 17, 2003
TICA,
N.Y. In most ways, this small upstate city seems a
world away from Brooklyn. But walk into the Oneida
County Courthouse, and things appear awfully familiar.
The Supreme
Court justices are all from one political party, and
they got where they are largely through political pull.
They raise thousands of dollars of campaign money from
local lawyers and dole out court appointments to
politically connected lawyers.
It is, in fact,
the same judicial selection system that in heavily
Democratic Brooklyn has led to scandal, criminal
investigations and, some critics say, increasing public
cynicism about the quality of justice meted out by the
state's highest trial court.
Except that
here, all the judges are Republicans.
For those
calling for an overhaul of how judges are selected or
elected in New York State, the situation here
illuminates an important truth: If the system is flawed,
both parties have exploited its imperfections. And those
imperfections can be found outside the five boroughs of
New York City.
Certainly, the
dubious doings of the Democratic Party in choosing
judges in Brooklyn have received the greatest share of
scrutiny recently, and with reason. No judge up here has
been indicted on bribery charges, nor is a grand jury
here investigating whether judgeships are for sale by
party leaders.
But the
overweening influence of politics and money on the bench
are just as obvious here, where Supreme Court judgeships
seem to be used as rewards for long service to the
Republican Party.
In Oneida
County, the elected Supreme Court justices include the
former law partner of a powerful state senator, the
former majority leader of the county legislature and the
former county chairman of the Republican Party. And so
it goes across the rest of the vast Fifth Judicial
District, which stretches from Syracuse in the south to
Watertown in the north, west to Oswego County and east
to Herkimer County.
The Supreme
Court bench is studded with onetime high-profile
Republicans: people who were formerly district attorney,
city councilman, town supervisor, city attorney,
corporation counsel and county legislator. (There is one
Democrat among the 17 elected justices in the district,
and one woman among the men.)
Indeed, the
political influence on judicial selection here reminds
even some insiders of the situation in New York City.
"I practiced
law in Brooklyn, and it's just like here - except that
the majority party here is Republican," said John R. Tenney, who recently retired after 35 years on the
Supreme Court in Utica and is a former Republican county
chairman and onetime head of the statewide association
of Supreme Court justices.
As a result,
the judge said in an interview, the quality of his
colleagues is mixed: "I've seen some superior judges and
some you wonder how they got on the bench."
Technically,
the judges in the Fifth Judicial District get on the
bench the same way judges do all over the state, through
districtwide elections. The district consists of six
counties, with about 630,000 voters.
Supreme Court
elections have an unusual twist: the candidates are not
chosen through primaries. Rather, they are selected by
delegates to a nominating convention. And those
delegates are picked by the county chairmen.
That system
troubles many critics of the judicial selection process,
who believe the bench should include people with a
variety of backgrounds. The current system "pretty much
excludes from the judiciary anyone who's not involved in
politics - they're out of the game altogether," said A.
Thomas Levin, president of the New York State Bar
Association.
The Republican
chairmen of the two largest counties in the district,
Onondaga and Oneida, say that while they choose the
convention delegates, they do not personally handpick
the judicial candidates. And they dispute the widely
held theory that judgeships - which at more than
$136,000 annually for 14-year terms are very high-paying
jobs here - are simply a reward for party service.
In fact, the
Oneida County Republican chairman, Mark Scheidelman,
said that while in the past the desire for a judgeship
attracted some people to become active in the party, he
had actually been elected to his political post because
he was not a lawyer and did not want to be a judge.
"That was a
selling point," he said.
Republicans in
the district argue that judicial candidates face real
elections, unlike in heavily Democratic Brooklyn, where
getting the nomination is tantamount to being elected.
More than 30 percent of the voters in the Fifth District
are registered Democrats (although the Democratic Party
often fails to field candidates for Supreme Court
slots).
Still, in the
last decade, only one Democratic Supreme Court
candidate, Brian F. DeJoseph, has triumphed at the
ballot box - and even he described it as a bit of a
fluke. Justice DeJoseph, who was a longtime city judge
in Syracuse, said he was helped in 2000 by his name
recognition, Hillary Rodham Clinton's coattails and a
split in the Republican Party over one of its
candidates.
"You've got to
catch some breaks to win as a Democrat here," he said.
Probably the
most striking example of the interplay between politics
and judicial selection was the election in 2000 of
Robert F. Julian of Utica. In legal circles, Justice
Julian was known as a successful plaintiffs' lawyer
specializing in medical malpractice cases. In political
circles, however, he was a powerful and controversial
figure even within the Republican Party: a longtime
majority leader of the Oneida County legislature and a
formidable power broker. (Timothy J. Julian, his
brother, is the mayor of Utica.)
When he decided
that he wanted to become a Supreme Court justice, he was
endorsed not only by his own party, but also by the
Conservative, Independence and Democratic Parties.
"It was worth
it to me to have him out of politics," said William C.
Morris II, the Democratic chairman of Oneida County.
For a
prospective judge, though, Mr. Julian had an unusual
résumé. He became a lawyer through the uncommon route of
working in a law office for several years and passing
the bar exam.
Shortly before
the election, local newspapers reported why Mr. Julian
had not graduated from law school: he had been expelled
in the early 1970's after admitting that he had cheated
on the LSAT entrance exam by getting someone else to
retake the test for him after doing poorly on it
himself. He said publicly that he regretted his actions,
and he was elected.
Legal and
political insiders had been aware of Mr. Julian's past.
"It was disclosed and discussed," said Leighton R.
Burns, who runs the committee of the Oneida County bar
that vets judicial candidates. "He may have been led
astray when he was young, but he's a quality guy."
Once elected,
justices are technically barred from participating in
politics. But they have the power to dispense thousands
of dollars of work to lawyers, and over the years, in
the Fifth District, as in Brooklyn, that work has
frequently been given to lawyers with party
affiliations. The appointments can be to manage the
assets of the elderly or impaired or to what are known
as referee assignments, which usually pay $500 or $550
for handling property foreclosures.
Much of the
work is regarded as easy. "You get paid for showing up,"
said Richard D. Grossman, who practiced law in the
district for many years before moving to Vermont.
A sampling of
appointments made in the district in recent years
suggests that those who get picked often work at law
firms that have political connections or that contribute
thousands of dollars to Republican candidates,
especially judicial candidates. And the lawyers
themselves are almost always registered Republicans.
The list of
frequent appointees includes the former leader of the
Oneida County Conservative Party, the wife of a county
legislator and her law partner, the daughter of a
retired judge, members of various Republican committees
and the former law partner of a sitting justice.
Also on the
lists are law firms that contributed thousands of
dollars to Republican judicial candidates.
For example,
members of the Cambareri, Cambareri & Koldin law firm in
Syracuse received at least 24 appointments in the last
five years, according to data from the State Office of
Court Administration; since 1999, the firm and its three
named partners have contributed more than $6,000 to
Republican candidates for the Supreme Court, according
to the State Board of Elections.
Lawyers and
their firms are the chief contributors to judicial
candidates, and in this district they contribute a lot;
candidates for the Supreme Court routinely raise or
borrow $100,000 or more, much of which gets spent on
television advertisements to increase their name
recognition among voters.
Judges insist
that they do not know, much less care, who contributes
to their campaigns, but surveys suggest that the public
thinks otherwise. And that belief is damaging, said Ken
Jockers, executive director of the Fund for Modern
Courts.
"Even if it's
not the case, even if the judge is doing a great job,"
he said, "the litigant who is not a donor walks away
with a question in his head about the level of justice
he just received."
Take the
example of Michael E. Daley, a former Herkimer County
district attorney, who raised about $60,000 when he
successfully ran for the Supreme Court in 2001.
His campaign's
only loan, for just $3,500, came from George F. Aney, a
lawyer in Herkimer, N.Y., who is considered something of
a local kingmaker. "You don't get elected unless your
sign is in his yard," one lawyer said. Mr. Aney forgave
most of the loan, and contributed more than $3,000
outright, making him one of the campaign's biggest
donors.
And Mr. Aney
often appears in court in front of Justice Daley. Among
his clients was Raymond Graham, who was indicted in
January on felony charges, including manslaughter, after
his speeding car slammed into the back of a sport
utility vehicle driven by Andrea Randazzo. Mr. Randazzo,
the 60-year-old founder of a small chain of pizzerias,
was killed the night before his youngest son's wedding.
That son,
Antonino A. Randazzo, said his family became irate in
May when, after Mr. Graham agreed to plead guilty to
criminally negligent homicide, Judge Daley said he was
considering a sentence of just six months in the county
jail, rather than several years in prison.
Victims'
families almost never like plea bargains. But in this
case, Mr. Randazzo said the family learned of the ties
between the judge's campaign and the defense lawyer, and
could not believe that the outcome in the case was not
tainted by that relationship.
Both Mr. Aney
and the assistant district attorney who prosecuted Mr.
Graham deny that anything improper occurred, and
although they disagree about whether the district
attorney approved of the proposed six-month sentence,
they agree that justice was done.
So does the
judge, who noted in an interview that he ultimately
sentenced Mr. Graham to at least a year in state prison.
Besides receiving a negative report from the probation
department, Mr. Graham had been arrested again for
speeding.
Mr. Randazzo
said that his family was relieved that Mr. Graham
received a longer sentence, but he cannot lose the bad
taste in his mouth.
"That things
like this really do happen in the court system," Mr.
Randazzo said, "it's just too bad, too bad for families
like us."
J udges
Say Democratic Official Issued List of Favored Lawyers
By Andy Newman
New York Times
December 16, 2003
Several judges in Brooklyn have told investigators that
a Brooklyn Democratic Party official had given them a
list of lawyers to consider when handing out court
appointments, according to a law enforcement official
and a lawyer involved in the case.
The handwritten list
included several lawyers with strong ties to the party,
including the official himself, Steven D. Cohn, the
party's executive secretary, as well as Mr. Cohn's law
partner, the law enforcement official and lawyer said.
One of the judges, Jules
L. Spodek of State Supreme Court in Brooklyn, said in an
interview yesterday that he had appointed Ravi Batra,
then the party chairman's law partner, in a real estate
case because his name was on the list and because he had
heard that Mr. Batra knew real estate.
Justice Spodek said Mr.
Cohn had listed some lawyers to be considered for
referee jobs and others for possible receiverships,
which are generally more lucrative appointments. The
list, which he received in 1999, was accompanied by a
note thanking him for his help, he said.
The list surfaced as the
Brooklyn district attorney's office continues its
investigation into the influence of the Democratic Party
on the judiciary in Brooklyn. The two top officials of
the county party Assemblyman Clarence Norman Jr., the
chairman, and Jeffrey C. Feldman, the executive director
were indicted last month, accused of strong-arming
judicial candidates into hiring the party's favored
consultants to work on their campaigns. The district
attorney, Charles J. Hynes, has denounced the current
state system of choosing judicial nominees, in which a
few party leaders have tremendous say over who becomes a
judge.
A law enforcement
official and a lawyer involved in the case said that
there was nothing illegal about party leaders giving
judges a list of lawyers to consider appointing unless
there was some quid pro quo involved, and that
investigators had not turned up evidence of such an
arrangement.
Justice Spodek said he
had not been directly pressured to appoint the lawyers
on the list. Other judges told investigators that they
had not felt pressured; they said they either had not
hired from the list or had done so on the appointees'
merits, not because they were afraid of retribution by
the party.
A spokesman for the
Brooklyn Democratic Party, Bob Liff, said yesterday: "No
such list has ever existed in any formal or informal
sense. If there were situations where judges would ask
for recommendations, party leaders or other lawyers
might have offered them. But there was never any
approved list that carries some official or unofficial
imprimatur of the party."
Mr. Batra's lawyer,
Randy Mastro, said he knew of no allegations that there
was a list of recommended appointees that included Mr.
Batra.
Among those on the list
were Richard S. Goldberg, Mr. Cohn's law partner, and
Aimee Richter, who also worked for Mr. Cohn's firm.
Court appointments have
long been a main source of patronage for the politically
connected. Judges can appoint lawyers to be guardians of
incapacitated people, receivers of troubled companies or
referees for the sale of property.
Some lawyers have made
hundreds of thousands of dollars drawn from the
assets entrusted to them from appointments, although
court administrators have recently put limits on the
amount of such work that a lawyer may do.
Justice Spodek, who has
been on the bench since 1981, said he regularly received
recommendations and requests for court work from lawyers
or their advocates.
He added that it was
helpful to have recommendations rather than to pick a
lawyer blindly from the state list. "When you give out a
reference, you don't want to be embarrassed," he said.
The judge said that Mr.
Batra had done a decent job on his court appointment and
had been paid $3,000.
A Bronx Judiciary Awash in Patronage, All Legal
By Clifford J.
Levy, Kevin Flynn,
Leslie Eaton and Andy Newman
The New York Times
January 3, 2004
Last summer,
Justice Douglas E. McKeon, up for re-election to State
Supreme Court in the Bronx, decided he needed to raise
some campaign money. The judge, though, did not turn to
the residents of the Bronx to back his candidacy.
Instead, his campaign solicited money from scores of
lawyers, including many who regularly appear before him
in court. Within weeks, his campaign had reaped more
than $50,000.
Justice
McKeon's mixing of politics and the courts is neither
illegal nor isolated. Over the years, the roughly 20
judges who handle civil litigation in Supreme Court in
the Bronx —— virtually all of whom owe their jobs to the
Bronx Democratic Party —— have operated, day in and day
out, in a world suffused with politics.
Consider, for
instance, the court's dealings with Gerald L. Sheiowitz.
Judges on what is known as the civil term of the Supreme
Court in the Bronx have awarded him more than $300,000
in legal work in recent years, a formidable sum among
the lawyers who work the courtrooms on the Grand
Concourse.
No one disputes
that Mr. Sheiowitz is a lawyer in good standing. But
courthouse regulars also understand why Mr. Sheiowitz
was treated so generously. He is the treasurer of the
Bronx Democratic Party. That fact may also help explain
why judges in the Bronx have awarded his daughter more
than $50,000 in court work, even though she is not a
lawyer.
For much of the
last year, prosecutors and top state court officials
have examined the reach and effect of politics on the
state's judiciary, from Brooklyn to Buffalo. The results
of their inquiries, by their own admission, have been
grim: the presence of politics is so pervasive that
public confidence in the courts has been damaged.
Reform is
overdue, the state's chief judge, Judith S. Kaye, has
declared.
The Bronx
courthouse is certainly not unique in its troubles. But
an examination of court records, interviews with judges
and lawyers, and hours spent in the courtrooms reveal
that its workings are emblematic of the problems
identified by Judge Kaye and others.
Almost no one
is elected to the bench without possessing deep
political connections. Favored lawyers get most of the
legal work doled out by the judges. Even the law clerks
and secretaries —— the judges' assistants who wield
daily influence in the courtrooms —— are mostly
political appointees who got their jobs largely because
of whom they know.
No judges here
have been indicted or sent to prison, in contrast to
what has occurred in Brooklyn. The Bronx judges say that
they are honest and hard-working and that they have been
unfairly tainted by the scandals elsewhere. And to some
lawyers and court officials, the judges handling civil
cases for the Bronx's top trial court do run a fairly
efficient courthouse.
Still, two of
the Bronx judges have been censured by a state ethics
panel for their conduct. Another two, including the
judge responsible for overseeing all civil litigation,
are former high-ranking Bronx Democratic officials who
were deemed unqualified to serve on the bench by the
city bar association when they first ran for election.
The political
influence inside the courthouse stretches across
decades. It is as obvious and acknowledged today, with
the borough's Democratic Party dominated by Hispanic
politicians, as it was when the party was run by the old
guard of Irish, Jewish and Italian leaders.
In an
interview, the administrative judge for the Bronx civil
term, Gerald V. Esposito, defended his judges and the
quality of justice they oversee. Justice Esposito is a
former Democratic district leader who had no judicial
experience when he was elected in 1994. At the time, the
city bar association found him unqualified; he said the
association came to that determination because back
then, it was biased against candidates with party
connections.
"This system
is, by and large, a terrific system," he said.
But four
snapshots of life in the Bronx courthouse capture, at
minimum, some of that system's weak spots.
Judgeship, via
Legislature
The career of
George Friedman —— his personally engineered move from
politician to Bronx judge and dispenser of courthouse
spoils —— sums up much about the political grip on the
courthouse.
In the early
1990's, Assemblyman Friedman, the Bronx Democratic
leader, was essentially facing extinction. He ruled an
increasingly Hispanic borough, and it was only a matter
of time before a rising class of Hispanic Democrats
ousted him.
So in 1994, Mr.
Friedman found an alternative. He introduced a bill in
Albany to create a new State Supreme Court judgeship in
the Bronx. He won the crucial backing of the Bronx
Republican leader, State Senator Guy J. Velella, a
lawyer whose firm has long won lucrative appointments
from Bronx judges.
The bill
passed. And so one day in September, Mr. Friedman handed
over the party reins to Assemblyman Roberto Ramirez,
making himself eligible to become a judge. The same day,
the party nominated Mr. Friedman to run for an open
State Supreme Court seat.
It was not the
first time Mr. Friedman had used Albany to expand the
party's influence over the bench. In the early 1980's,
as a junior assemblyman, he helped create a separate
judicial district for the Bronx, cleaving it from a
joint Manhattan-Bronx one.
Back then, Mr.
Friedman declared that the legislation would empower
Bronx residents. But the people truly empowered were the
Bronx Democratic bosses, who received their own set of
Supreme Court judgeships to control.
After taking
the bench in 1995, Mr. Friedman quickly honored the
age-old tradition of handing out court work to the
party's favored lawyers. Among them was Gerald L.
Sheiowitz, who served as the treasurer for both the
Bronx Democratic Party and Mr. Friedman's judicial
campaign committee.
In all, Mr.
Friedman gave more than $235,000 in court work to Mr.
Sheiowitz during his time on the bench. He assigned
$40,000 in court jobs to Mr. Sheiowitz's daughter,
Hillary R. Sheiowitz, who went to law school but has yet
to pass the bar. Justice Friedman often approved her
requests for rates of $200 an hour.
Neither
Sheiowitz responded to telephone messages at their
office.
Mr. Friedman
said in an interview that both Sheiowitzes did great
work. He said he thought so highly of Mr. Sheiowitz that
he used him as his personal accountant and real estate
lawyer.
Like many party
leaders, Mr. Friedman acknowledges the political nature
of the court system. He said political patronage helps
the system by creating a stable of lawyers willing to
accept the low-paying cases as well as the lucrative
ones.
He said he
moved to create the judgeship "long before I had any
thought of going on the bench,"
Mr. Friedman
added, "As a matter of fact, I never really had a great
desire to go on the bench."
Mr. Friedman
retired from the court in 2002, and was appointed by
Judge Kaye to serve on a commission exploring judicial
reforms and the need to rid the judiciary of its most
blatant political influences. Judge Kaye said through a
spokesman that Mr. Friedman was chosen because of his
"varied réésuméé."
Mr. Friedman
said one of his roles on the commission was to help make
proposed changes palatable to political leaders. Still,
he suggested that ultimately, reformers were misguided.
"I think the system we have results in an outstandingly
good judiciary," he said.
To improve the
system, he suggested, the state should increase the
judges' salaries, which are now $136,700.
Donors With
Pending Cases
Public trust in
the courts, legal experts have long asserted, depends to
no small degree on avoiding even the appearance of
conflicting loyalties between judges and the lawyers who
go before them. For years, though, New York campaign
laws have allowed those kinds of appearances to
flourish.
Justice Douglas
E. McKeon's race for re-election last year makes that
clear.
With Justice
McKeon fearing a tough fight, his campaign obtained a
membership list from the state trial lawyers'
association and used it to send solicitations to Bronx
and Manhattan trial lawyers. The lawyers donated by the
dozens.
Among the
largest donors were law firms and lawyers who routinely
file malpractice lawsuits against the city's Health and
Hospitals Corporation, which runs the public hospitals.
The judge is the Bronx justice assigned to cases against
the corporation, handling a lengthy list of malpractice
suits charging that patients were neglected at Jacobi,
Lincoln, North Central Bronx and other hospitals.
The largest
donor was a law firm called Rappaport, Glass, Greene &
Levine L.L.P., which gave $2,000 and has four
malpractice cases before Justice McKeon, the firm said.
In one of the cases, the firm asserts that Lincoln
Medical and Mental Health Center mishandled a delivery,
leaving the infant permanently disabled.
A lawyer who
gave $1,500, Duane Fiedler, has two cases before the
judge, according to court records. One of them accuses
Lincoln of allowing a mother to bleed to death during
childbirth.
Such lawsuits
often seek millions of dollars in damages.
In all, the 150
or so donors to the McKeon committee have some 300
current cases before him, according to a comparison of
the donor list and an electronic database of court
records compiled by LexisNexis.
Justice
McKeon's fund-raising strategy is common. In the Bronx,
as in the rest of the state, the coffers of State
Supreme Court candidates are often filled with money
from lawyers who have a stake in the decisions that the
candidates make if they reach the bench.
No one has
pointed to a particular case in which Justice McKeon
improperly favored one side or the other. But lawyers'
donations to judicial candidates so troubled the Kaye
panel that it proposed that judges disqualify themselves
from cases involving lawyers who gave more than $500 to
the judges' campaigns in the previous five years. It
also said lawyers should disclose all contributions to
judges when appearing before them.
Under current
judicial rules, to avoid the appearance of a conflict,
candidates are not supposed to know who donated to their
campaigns. Justice McKeon said that although he had
approved the fund-raising mailing, he was not aware who
gave.
"This raises no
ethical concerns with me personally because I intend to
call them as I see them," Justice McKeon said. "I expect
that anyone who gave a contribution to me did so because
of the fact that in 14 years on the bench I was a
worthwhile individual who should then be retained on the
bench." He added, "Who else am I going to solicit except
people who appear before me and have some idea of my
level of scholarship?"
Charles J.
Rappaport, a senior partner at the Rappaport firm, said
that the firm's donation was not intended to obtain
special treatment and that it supported candidates with
extensive trial experience. "Unfortunately, in recent
years, many judges have been appointed and elected who
have never tried a case," he said.
Still, after
being questioned by a reporter last month about the
donations, Justice McKeon, who ultimately was easily
re-elected and spent less than half the money he raised,
promised to refund portions of donations greater than
$500.
Handing Out the
Spoils
Not quite a
decade ago, a lawyer from Floral Park, Queens, began
turning up in the Bronx courthouse. His name was Robert
H. Helweil, and he became one of the top moneymakers
among the lawyers who receive work handed out by State
Supreme Court justices in the Bronx.
Since 1995, Mr.
Helweil has earned roughly $175,000 from nearly 30
cases; many involve managing the financial affairs of
nursing home residents with dementia, according to court
records.
Mr. Helweil,
now 80, may seem an unlikely candidate for such judicial
largesse.
He did not have
extensive experience handling guardianships, was not a
leading expert on the applicable laws and was not a
powerhouse in the Bronx County Bar Association. His last
full-time job, from which he retired in 1994, was as
counsel for a large temporary-staffing company in
Westbury, on Long Island.
The reason Mr.
Helweil has received so much work in the Bronx is
simple, he acknowledges: the judge who appointed him in
virtually every case is his former law partner, Jerry L.
Crispino.
Indeed, Justice
Crispino, who retired from the bench in October, gave
roughly a quarter of the work he handed out since 1995
to Mr. Helweil, according to court data. "He appreciates
that I am a conscientious guy," Mr. Helweil said, adding
that he was pleased to have the work because "I like to
be busy."
In a brief
telephone interview, Mr. Crispino said he had appointed
Mr. Helweil "because he is competent and capable, not
because he was my partner" two decades ago. Mr. Crispino
is a former Democratic city councilman who came to the
bench in 1992.
Nowhere is the
insular nature of New York State Supreme Court more
obvious than in the appointment of what are known as
fiduciaries: guardians for the young, elderly or infirm,
as well as receivers who are supposed to protect
businesses and property caught up in lawsuits.
Judges give
these assignments to private citizens, usually lawyers,
who are generally paid from the assets of the people or
estates they are assigned to protect. More often than
not, their hiring is heavily influenced by politics and
personal relationships, state investigators have
repeatedly concluded.
In the Bronx,
the list of fiduciaries is chock-full of the borough's
political elite. The roster includes State Senator
Velella and his law partners; City Councilman G. Oliver
Koppell, who is a former state attorney general, and his
wife; the Bronx Democratic Party's longtime election
lawyer, Stanley Schlein; and the law partners of the
former Democratic leader, Mr. Ramirez.
Then there are
those with personal links, like Mr. Helweil. In just one
case, involving an elderly diamond cutter worth several
million dollars, Mr. Helweil earned more than $70,000.
Mr. Helweil
said that in some cases he was paid nothing at all for
his work, and that Justice Crispino routinely reduced
his fees. The files for his cases suggest that Mr.
Helweil was diligent.
Last year,
court administrators imposed new rules on judges that
are supposed to make the awarding of fiduciary
appointments fairer. It is unclear whether the rules
will curb the cronyism in the system. Past efforts at
reform have often failed.
Whatever the
impact of the new rules, Mr. Helweil said he did not
expect them to affect him. Now that his old friend Mr.
Crispino has retired, he said, he is not expecting many
appointments from the Bronx.
Well-Connected
Clerks
The judges are
the most prominent examples of the role of politics in
the state's courthouses. They are not the only ones.
Maria
Matos-Sepulveda was hired as a law clerk for a Supreme
Court justice in the Bronx in 1997, several months after
her husband, Luis R. Sepulveda, became a Democratic
district leader in the borough. She passed the bar three
years earlier and had worked for the state attorney
general's office. Her husband had been a repeat campaign
contributor to Mr. Ramirez, the borough's Democratic
leader at the time.
Another Bronx
clerk, Martin Popovic, was once an aide to Assemblyman
Stephen B. Kaufman. A third, Daniel O'Leary, has been a
member of the Chippewa Democratic Club for two decades
and is chairman of its law committee. The personal
secretaries to Bronx judges include two former
Democratic district leaders and a district leader's
wife.
All these
people perform critical tasks in the state's highest
trial court and, officially anyway, were hired at the
discretion of the justices themselves. But in reality,
the clerks and secretaries for Bronx judges are often
the progeny of politics.
Many were hired
not through a process that featured the widespread
recruiting of candidates, but through a system in which
judges sort through a list of favored candidates sent by
political leaders.
Some have
worked on judicial campaigns or carried petitions for
the Democrats. Some are the spouses or relatives of
political leaders, including district leaders, who serve
as lieutenants for the party organization.
Asked about the
quality of the law clerks being pushed by the party, one
judge said: "The people they send to the judges are by
and large competent people. They are not sending hacks
anymore."
Ms.
Matos-Sepulveda, who earns $93,000 a year, and the other
clerks said they are highly qualified and had earned
their jobs on their merits. Their supporters assert that
judges with 14-year terms would not saddle themselves
with incompetent aides when they need the party's help
so infrequently.
In many cases,
it is the clerks who determine how effectively justice
is delivered. Often it is the law clerk who writes the
judge's opinion. Other times, clerks direct pretrial
conferences at which opposing lawyers decide whether
they can settle a case before trial.
Mr. O'Leary,
who earns $110,000 a year, said even if judges were
appointed by expert committees instead of being elected,
people would still push friends for clerk jobs.
The Bronx
Democratic leader, Assemblyman Joséé Rivera, said judges
are not penalized for refusing party referrals. "The
final analysis is the judge's," he said.
But there is
ample evidence that judicial hiring discretion has often
been constricted. In the Bronx in the mid-1990's,
colleagues of a veteran law secretary accused the
Democratic Party of pressuring Justice Kenneth L.
Thompson Jr. to dismiss his clerk, Howard Liker, because
it was upset that his wife was doing political work for
Mayor Rudolph W. Giuliani. Justice Thompson did not
respond to a call seeking comment.
Others who
associate with Republicans have fared better. Lucianna
Locorotondo is one of the few Republicans hired as a
Bronx law clerk in recent years. She acknowledges that
her appointment may have been bolstered by her political
relationship with Senator Velella, the Bronx Republican
leader who has long shared a warm relationship with the
borough's Democrats.
Ms. Locorotondo
said she pays $300 a year to attend the Bronx Democratic
Party's annual dinner, despite her party affiliation,
but not to curry favor with the party.
"It's not
something I have to do," she said. "It's a good place to
talk and to network."
Ms. Locorotondo,
a graduate of St. John's School of Law and Barnard
College, said she was picked primarily on merit. "Being
that I'm not a Democrat," she said, "they looked even
more at my credentials."
But critics say
the current hiring system is too narrow to produce the
best candidates.
"The bottom
line is that this is the result of a system that places
the selection of judges squarely in the hands of local
party leaders, not voters," said Jeremy Creelan,
associate counsel for the Brennan Center for Justice,
New York University School of Law. "When you do that,
you are creating pressure on the judges to satisfy those
party leaders." |
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