What’s A Judge Got To Do With It?
A village court justice who is also an attorney has been admonished by the New York Commission on Judicial Conduct for misconduct in office that permitted the prosecutor in traffic cases to negotiate pleas and impose sentences.
Only judges have authority and responsibility to accept or reject a negotiated plea; and dismissing and reducing charges, convicting defendants and imposing sentences are quintessential judicial functions requiring the exercise of judicial discretion. Placing such responsibilities in the hands of the prosecutor, who is not a neutral arbiter but an advocate, is especially problematic. Though respondent testified that she occasionally spoke to the Deputy Town Attorney about the “parameters” for such negotiated dispositions, a discussion of parameters is no substitute for reviewing dispositions in individual cases. Nor is it any excuse that, as respondent testified, Mr. Tudisco was an officer of the court whom she trusted to act appropriately. By abandoning her responsibility to review dispositions negotiated by the Deputy Town Attorney, respondent delegated these important judicial functions to the prosecutor and to court clerks, who accepted and processed the negotiated pleas. Such conduct was inconsistent with her obligation “to perform the duties of judicial office impartially and diligently” and “be faithful to the law,” and to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”
Nor was it a defense that the improper practice predated the justice’s service on the bench or that she consulted with her co-justice.
Worse
After these practices had continued for a year in respondent’s court, the Commission requested court files and calendars from several nights on which negotiated pleas had been processed. Before the files were copied and sent to the Commission, respondent placed her initials on each of 189 files, next to the Deputy Town Attorney’s notation of the plea agreement, which conveyed the appearance that she had contemporaneously reviewed and approved the dispositions…
It is wrong for a judge to alter records in any way, for any purpose, after the Commission has requested them, and particularly improper to do so if the alterations might be misleading. Only after the Commission had interviewed various witnesses did the Commission learn that respondent had initialed the files only after the Commission had requested them. Had it been proved that respondent intended to mislead the Commission by conveying the false impression that she had contemporaneously reviewed the dispositions, there is little doubt that the sanction of removal would be appropriate.
Mr. Emery dissented
The majority determines to admonish respondent based on an incomplete record that makes it impossible for me to determine with any degree of confidence whether that sanction is appropriate. Regrettably, the record is incomplete because we have not followed through with our commitment to have the record appropriately developed. When we rejected an earlier Agreed Statement and sent the matter to a referee, we directed that an adversarial proceeding take place to fully develop the factual record. Instead, the staff stipulated to facts central to the case that were very much in dispute and did not seek to develop the record as we directed. The majority’s response now is to abandon the effort rather than require a full exploration of the evidence which, in my view, would be dispositive of the fundamental open question in this case.
There is no dispute that in placing her initials on 189 court files, next to the Deputy Town Attorney’s notations of plea agreements and recommended dismissals, respondent conveyed the appearance that she had previously reviewed and approved the dispositions when, in fact, she had not – the very conduct the Commission was investigating. The key issue is why she initialed these documents in the misleading way she did: did she initial the files in order to mislead the Commission – engaging in a cover-up as the Formal Written Complaint alleges – or did she merely initial them without any intent to mislead the Commission in order to identify the files as her cases? Rather than probing this central issue and developing the record more fully, as we directed in rejecting the previously proffered Agreed Statement, we are now presented with stipulated facts stating, inter alia, that it is “not in dispute” that the judge did not intend to mislead the Commission (Ref Ex 1, pp 1, 8, 11 ). But the evidence, on its face, conveys a plainly contrary appearance. And plainly, this was the central factual dispute in the case.
(Mike Frisch)