Graduation Day

The New York Commission on Judicial Conduct has recommended the removal of a state Supreme Court justice

Respondent, Erin P. Gall, a Justice of the Supreme Court, Fifth Judicial District, Oneida County, was served with a Formal Written Complaint (“Complaint”) dated May 23, 2023 containing one charge. The Complaint alleged, inter alia, that on July 2, 2022, after fights broke out at a graduation party respondent attended, she engaged in a loud, public, prolonged and profanity-laced confrontation with responding police officers and others at the scene during which she repeatedly invoked her judicial office, made comments that cast doubt on her ability to be impartial as a judge by, inter alia, stating Black teenagers at the scene “don’t look like they’re that smart”, stating to police officers that if the Black teenagers returned to look for a missing car key, “. . . when they trespass you can shoot them on the property. I’ll shoot them on the property” and telling a police officer that she was “always on your side” when the officer expressed concern about a possible civil rights suit in her court if the Black teenagers were arrested at respondent’s urging. The Complaint further alleged that respondent detracted from the dignity of her judicial office when, inter alia, she stated that her teenage son had “kicked the shit out of” someone and made disparaging comments to police officers about being on call to handle Extreme Risk Protection Orders (“ERPOs”). Respondent filed an Answer dated July 18, 2023.

On March 1, 2024, the Administrator, respondent’s counsel and respondent entered into an Agreed Statement of Facts (“Agreed Statement”) pursuant to Section 44, subdivision 5, of the Judiciary Law, stipulating that the Commission make its determination based upon the agreed facts and misconduct and requesting briefing and oral argument on the issue of sanction.

From the decision

respondent’s profanity-laced statements on a public street detracted from the dignity of her judicial office. Her improper comments included, inter alia, stating: “I’m a fucking judge”, “I don’t care about this kid’s fucking keys” and, regarding her son fighting, stating, “He put a smack down once he got hit . . . he put a smack down.” See, Matter of Grisanti, 2025 Ann Rep of NY Commn on Jud Conduct at __ (“. . . while in the street, respondent inappropriately unleashed a tirade of expletives in full view of the public.”) While we are very sympathetic to the impact of respondent’s past trauma and have reviewed the evidence she submitted regarding the diagnosis, we find that her significant misconduct is not excused by this evidence.

During the incident, while repeatedly asserting her judicial office for more than an hour, respondent gave orders, directed the police to arrest the Black teenagers and made statements which created the appearance of racial bias and bias in favor of law enforcement. Such conduct cannot be explained by the psychological evidence in this matter…

Impropriety permeated respondent’s conduct on July 2, 2022. Instead of leaving the chaotic situation, for over an hour, respondent repeatedly engaged in conduct that violated the Rules. Her wide array of misconduct severely undermined public confidence in the judiciary and in her ability to serve as a fair and impartial judge.

Conclusion

Respondent committed multiple violations of several Rules, acted in a manner unbecoming a judge, brought reproach upon the judiciary and irreparably damaged her ability to serve as a judge.

By reason of the foregoing, the Commission determines that the appropriate disposition is removal.

The concurring opinion of Professor Nina Moore commends te responding officers

The remarkably temperate decision-making of responding police officers is commendable. Five different law enforcement agencies were marshalled to deal with numerous street fights. Throughout, the responding officers judiciously managed the improper demands of a White female judge for removal on the one hand and, on the other, four Black male teenagers’ insistence on staying put to find a car key—despite the precarious situation at hand.

The point of note is that police officers had to explain to a judge the multiple reasons why they could not lawfully submit to her pleas to handcuff, detain, arrest and/or remove the teenagers. The officers warned Judge Gall that it would be unlawful for her to shoot someone simply due to trespassing, as she threatened. (“I’ll shoot them on the property.” ASF at 23, ¶¶68-69) It was the officers that advised the judge that she could not follow through on her plan to throw the key in the toilet if it turned up, as she stated. (“We’re absolutely going to throw it in the toilet.” ASF at 22 23, ¶¶66-68) Deputy Norman Lyke cautioned respondent that a judicious approach was necessary partly because the officers could end up in her court for violating the teenagers’ civil rights. (ASF at 17, ¶49)

In a volatile moment that could have led to far more harmful outcomes than occurred on July 2, 2022, it was police officers that displayed the kind of measured and reassuring judgement that the Rules of Judicial Conduct demand of New York state judges. Respondent now admits that the evidence is insufficient to support her initial claim that her son was assaulted by two of the young Black men. What if the responding police officers did not have the wherewithal to do the right thing over the strenuous objections of a state supreme court judge? The totality of circumstances in this case point up the strong probability that we would have before us a very different case: one with four Black teens unlawfully victimized by the criminal justice system, due to mistaken identity by a White female judge, based on the argument that it was because she was assaulted when she was a college freshman. No matter how extremely unfortunate and regrettable respondent’s 1990 assault, the long reach and unpredictability1 of its effects cannot be enabled to wrongly jeopardize the freedom and safety of others.

The need for faith in the judiciary

Black litigants, attorneys, court staff and others who enter a New York state courtroom are entitled to equal justice. They should not have to carry the additional burden of wondering whether their matters will be adjudicated by a judge of sound and sober mind, or a traumatized judge with a proclivity toward racial stereotyping and racially tainted directives. Inexplicably, respondent’s 1990 trauma took the form of racialized behavior on July 2, 2022. Her derisive deployment of Black English (aka “African American vernacular,” “Ebonics,” and “blaccent”) is jolting. She averred: “You know what you’re not going to find your mom’s keys. You gotta ask her for a second set, bro! … That’s what I’m telling you right now. That’s how I roll. That’s how I roll. That’s how Mrs. G rolls. That’s how Judge Gall rolls. We’re clearing this place out.” (ASF at 13-14, ¶¶38-39).

Judge Gall’s mocking blaccent is in addition to the other racialized behaviors noted in the majority opinion, including her assessment of the four Black male teenagers as less than Business School material and the hint that they could not afford cocaine—reflexive assessments that she made with no personal knowledge whatsoever of the four Black teens. The defense argument that the teens’ behavior was distinctive and merited such harsh judgement is belied by the fact that Judge Gall’s own husband and son had, in her words, just given someone a “smack down,” and at her friend’s party where police officers observed many teens had been drinking or were intoxicated. Critically, respondent’s words on the
night of the incident did not pertain to behavior. They expressly targeted physical features. She stated: “They don’t look like they’re that smart.” (ASF at 21, ¶62) Respondent admits that her statements about the four Black teenagers created the appearance of racial bias. In Matter of Putorti, 40 NY3d 359 (2023), where petitioner admitted he “may have created the appearance of racial bias” in statements that he made, the Court of Appeals held,

judges have a “continuing obligation to avoid even the appearance of impropriety” . . . and, here, petitioner acknowledged that his conduct “may have created the appearance of racial bias.” We stress that the “appearance of such impropriety is no less to be condemned than is the impropriety itself” . . .

Id. at 366.

Even so, Judge Gall offers scholarly articles to explain away her racialized behavior based on a research finding that, in sum and substance, people resort to racial stereotyping when they get angry. None of the scholarship that is proffered pinpoints the origins of the brand of racial animus that is confined to moments of anger. To date, no credible systematic research attributes reflexive racism against Black people to the kind of long ago criminal victimization that respondent offers as a defense. If there were a therapeutic cure for racialized behavior, the world would likely be a better place. But, until such a cure is available, Judge Erin Gall should not sit on the bench with Black litigants left to cross their fingers and hope for the best.

(Mike Frisch)