Patience And Dignity Are Judicial Virtues

The New York Commission on Judicial Conduct has admonished a judge for inappropriate discourteous remarks in three matters

Respondent has acknowledged that on three separate occasions he made inappropriate statements that were inconsistent with his obligation to be “patient, dignified and courteous” in performing his judicial duties (Rules, § 100 .3 [B][3 ]).

In the Swank case, respondent’s comments about an alleged victim of statutory rape were insensitive and created the appearance that he was being critical of her. In a plea discussion with counsel as the jury was deliberating, respondent told the prosecutor that he was “a little surprised” by a proposed plea that would require the defendant to register as a sex offender since the victim, who was then age 16, was “apparently not upset at the whole incident, from her testimony.” (The alleged crime had occurred two years earlier.) When the prosecutor said that the point of the statute was that a 14 year-old could not consent to sexual activity, respondent commented that the victim now had a baby (fathered by a different man) and added, “She’s only 16 now. So the statute didn’t save her, did it … I don’t think it’s going to save her.”

Our system of justice is designed to protect young teenagers from sexual abuse, and such individuals must be viewed with sensitivity and respect. While respondent has acknowledged that his comments were insensitive, he avers that he made the statements in an attempt to determine whether a plea disposition might be acceptable, a discussion that had heightened significance since the possibility that the jury was deadlocked had been raised. In plea discussions, blunt statements, opinions and speculation that would be inappropriate in other contexts may be part of the process in achieving an agreement. Although such a discussion at that stage might appropriately include a frank assessment of any factors that might be relevant to the likelihood of conviction and an appropriate plea, respondent’s choice of words could be perceived as a harsh, judgmental statement about a young woman who was the alleged victim of a serious crime.

Remarks to prosecutors in two matters also crossed the line

Respondent’s criticism of the handling of the case involving the District Attorney’s relative was especially improper since (i) that case was not before him, (ii) he seemed to have little information about the matter, and (iii) some of his information was inaccurate (the relative was not A_’s “co-defendant,” as respondent stated, and was never charged with a felony). By making such comments, respondent violated his duty as a judge to be an exemplar of dignity, courtesy and neutrality.

The commission

While respondent’s comments in the Swank and Johnson matters, standing alone, might otherwise warrant a confidential caution, his statements in the matter set forth in Charge III, in our view, elevate this matter to public discipline.

(Mike Frisch)