Long Delay Benefits Accused Judge
The New York Commission on Judicial Conduct has censured a town court justice
The record before us demonstrates that in performing his judicial duties in several cases in 2010 and 2011, respondent overreached his judicial authority, misapprehended his role as a judge and failed to comply with well-established legal requirements. As respondent has acknowledged, he deserves to be disciplined for his behavior, which was inconsistent with ethical standards requiring every judge, inter alia, to be an exemplar of courtesy, to be faithful to the law and maintain professional competence in it, and to accord to every person with a legal interest in a proceeding the right to be heard according to law (Rules, §§100.3[B][3], 100.3[B][l], 100.3[B][6]). Although it appears that in many respects respondent’s conduct was well-intentioned and that his errors of law were isolated and unintentional, it is not disputed that he disregarded his ethical obligations and abused the power of his office.
Most serious, we Respondent’s remarks regarding Mr. Colbert’s appearance, delivered at two believe, was respondent’s misconduct in connection with the Colbert and Stuper matters.
Respondent’s remarks at two separate court appearances five months apart, were improper and unfitting for a judge. At a time when the young defendant facing serious charges was appearing before the judge to report on his treatment and later for sentencing, respondent commented on Mr. Colbert’s nose piercing and ear gauges, remarking, inter alia, “What’s that thing in your nose? … When I was a kid we used to do that to all the bulls on the farm”; “What is going on with your earlobes?”; “Aren’t those bigger than the last time I saw you? … Why would you do that?” Further, in sentencing Mr. Colbert to a conditional discharge on a plea to Driving While Intoxicated in satisfaction of multiple serious charges, respondent advised him, “Additional [sic] … you don’t increase the size of your earlobes for the next twelve months. Because if I do have to look at you again, I don’t want to look at that.” As the referee aptly stated, “That these comments were aimed at a twenty one year old young man struggling with a substance abuse problem only accentuates their inappropriateness.”
The jusge stated that he was merely trying to “relax the atmosphere” of the court.
The second matter
In the arraignment of defendant Matthew Stuper on a Harassment charge, which occurred on the same date that respondent sentenced Mr. Colbert, the transcript of the proceeding indicates that respondent increased the bail from $3,500 to $5,000 with no explanation after Mr. Stuper indicated that he was prepared to post the initial amount, suggesting that respondent increased the amount simply because the defendant could post it.
A concurring opinion by Member Emery
The Commission’s Determination fairly describes the mitigating factors which support the result we reach. One of them, however, deserves a bit more elucidation, in my view. The chronology of this case, though long delayed for reasons not in the record, has ironically aided this judge in his quest to remain on the bench. The events took place more than five years ago and the record before us does not reveal any similar misconduct before or, more importantly, since. Because we took so long to bring this case to conclusion, the judge plainly benefited from his, apparently, blemishless record. Ironically, the delay in this case supports the conclusion that Judge Clark has demonstrated that he can perform his duties properly and effectively and thus is not a threat to the public.
By noting this factor in this case, I do not want to imply that we should suspend our process so that a judge can demonstrate her fitness after misconduct has occurred. I do not think there was any intent to allow this case to meander for so long. It is indisputable that delays of this length are bad for the judge, the Commission and the public. It just so happens that in this case, notwithstanding that the charges pending against the judge must have weighed heavily on his mind, the lengthy delay and the judge’s ability to function effectively during the pendency of his case worked to his benefit.
(Mike Frisch)