The Meaning Of Demeaning

A town court justice has been censured by the New York Commission on Judicial Conduct

Respondent, Michael A. Tawil, a Justice of the Ossining Town Court, Westchester County, was served with a Formal Written Complaint dated May 22, 2019, containing two charges. Charge I of the Formal Written Complaint alleged that in the summer of 2016, respondent entered a gift shop and publicly confronted store employees about a display of smoking and/or drug-related paraphernalia in the store’s window display, used profanity and invoked his judicial office in an attempt to have the items removed from the window display. Charge II of the Formal Written Complaint alleged that on March 8 and March 9, 2017, while acting as a private defense attorney in Carolyn Thomas v. Quest Livery Services, LLC DIBIA Bee Bee Car Services, Pedro Roberto Batista, Nelson J. Urbina and Methuran Bahiro, respondent (A) made an insensitive remark about a codefendant’s ethnicity during his summation and (B) asserted his judicial office to advance his private interests when confronted about the impropriety of his summation remark.

The remark referred to in charge II

On the other hand, you have Mr. Batista. He’s on the phone talking to his female girlfriend or someone. He’s selling cell phones to his passenger, he’s listening to the radio, he said they’re having a good time in the car. They’re having a good time and he’s paying attention to the passenger, to his girlfriend, probably to the radio. For all we know, he could be frying up some platanos in the front seat [emphasis added]. We don’t know. But he’s not paying attention to the road, what’s going on around him, okay.

Then

The next day, on March 9, 2017, before the jury was charged, Judge Edwards conducted an off-the-record conference with respondent and his client’s insurance adjuster in chambers. At the conference, Judge Edwards told respondent inter alia that his summation remark about “platanos” was “racist.” Judge Edwards told respondent, “What’s going to happen now is your client is going to pay $25,000 to settle this case right now or I am going to report you to the Appellate Division Second Department. That’s your license counselor.”

Respondent replied that he was “a current Part-Time Town Justice” and that he would never “intentionally make a racist comment.” Respondent would testify that he was fearful of the threat and nervous when he said this.

The commission

In accepting the jointly recommended sanction of censure, we have taken into consideration that respondent was cooperative with the Commission. He admitted that his conduct was improper and warrants public discipline. We also note that respondent has expressed remorse for his conduct.

A dissent on characterization of the remark

I concur with the majority determination and sanction and respectfully dissent as to the characterization of respondent’s “platanos” comment referenced in Charge II as “demeaning.”

This case arose out of a contentious exchange between a trial judge and respondent attorney, who is also a town justice, during a personal injury trial before a jury in Kings County. In an effort to coerce a settlement, the trial judge threatened to report respondent to the Appellate Division stating, “that’s your license counselor.’· based on her conclusion that respondent’s comment during his summation was “racist.” The Commission recently issued a determination finding that the trial judge should be admonished for her conduct. In the course of reviewing respondent’s complaint against the trial judge, the Commission authorized an investigation of respondent’s own conduct in the matter.

My learned colleagues concluded that respondent uttered a “demeaning” remark during his summation. I cannot apprehend the impropriety or insensitivity of respondent’s words in the absence of context. While the statement respondent made may well be demeaning, it may also be benign. strategic, or otherwise inoffensive when viewed in the framework of the trial and the issues before the jury. Based upon the facts presented to the Commission and lacking perspective on the trial, I cannot conclude that respondent’s comment was “demeaning.”

(Mike Frisch)