What's Going On at The Commission on Judicial Conduct?...(MORE, CLICK HERE)

Here's a New York Law Journal article that may provide some insight into what's going on at the Statewide Commission on Judicial Conduct...MORE......

Famous NY Lawyer Jumps to the Defense of Quadriplegic NY Judge

New York Lawyer
November 27, 2007

By Joel Stashenko
New York Law Journal

The State Commission on Judicial Conduct often fails to sufficiently take into account the "human condition" when it considers cases, the commission's chairman asserted in an opinion concurring with the commission's decision to censure an upstate justice.

Chairman Raoul Felder noted that Valatie Village and Kinderhook Town Justice Edward J. Williams in Columbia County is a quadriplegic facing "often insurmountable, sometimes humiliating" challenges in daily life. Mr. Felder chided the staff of the commission for seeking to take away an important portion of his life by seeking his removal from the bench after 25 years for the ex parte conversation he had in connection with a criminal case.

"We cannot claim to be a civilized and caring society, and yet, in our actions, not enfold into our judgments, where pertinent, the terrible burdens that others must bear in order to traverse the landscape of life," Mr. Felder wrote.

The rest of the commission, in a footnote to the majority decision released yesterday, found that Mr. Felder's concurring opinion "inappropriately relies on matters not in the record regarding Judge Williams' personal life."

Mr. Williams, who is confined to a wheelchair, appeared in person before the commission.

According to the ruling, the judge's memorandum of law included a reference to his disability, though it apparently was not used in a way to mitigate the penalty.

The dissenter in the determination released yesterday, Richard D. Emery, agreed with the staff's recommendation that Mr. Williams should be removed from office because the justice has been before the commission four times for disciplinary actions since 1993, receiving an admonition in 2001 and censure in 2002.

Mr. Emery also added a footnote in which he joined the majority in criticizing Mr. Felder's concurrence.

"The problem with Mr. Felder's sympathetic exposition on the daily life of Judge Williams is that, apparently, Judge Williams either does not view his life in the same way as Mr. Felder or, more to the point, does not consider his disability an appropriate basis for mitigation in his case," Mr. Emery wrote. "I assume that if he did, his able counsel would have offered evidence to support such a claim."

Mr, Emery noted that "we are required to limit our review of mitigation evidence to those factors that are probative of a judge's proclivity to repeat misconduct. Nothing that I can think of about Judge Williams' disability informs us on that point. If he is to be credited in this case, it should be for not playing that card. Regrettably, Mr. Felder has inappropriately chosen to play that card for him. "

The case before the commission involved a conversation Mr. Williams allegedly had with a state trooper he bumped into at the Columbia County Fair in 2004. At that time, Mr. Williams was deciding a harassment charge in Valatie Village Court against Daniel Wloch, who had gotten into a confrontation with his neighbor over the neighbor's barking dog.

Mr. Wloch testified that he was told by a trooper that the harassment charge would be disposed of like a "traffic ticket" and he would probably face a $100 fine. When Mr. Williams ran into the trooper, possibly the same one who had discussed the case with Mr. Wloch, he asked the trooper about the conversation and warned him not to discuss the outcome of pending cases. The trooper denied having the discussion with Mr. Wloch.

After finding Mr. Wloch guilty of harassment and fining him $100, Mr. Williams acknowledged in court to having had the conversation with the trooper. The judge denied that the discussion had shaded his thinking about Mr. Wloch's guilt or veracity.

The commission determined that by having such an ex parte conversation Mr. Williams "compromised his integrity." It said that Mr. Williams should have known better because his 2002 censure was for having an ex parte conversation with another judge over rescinding an order of protection issued against one of Mr. Williams' friends.

"At the very least, respondent's conversation with the trooper created the appearance that he had obtained, and relied upon, out-of-court unsworn information in making his decision in the case, thereby depriving the defendant of the fundamental right to confront and respond to the evidence against him," the commission decided.

Placed on Notice

However, the commission concluded that Mr. Williams' conduct, "although serious, does not rise to the level of 'truly egregious' misbehavior requiring the sanction of removal."

The majority said that the judge did not seek out the trooper but spoke to him in a "chance encounter." They also credited him with disclosing the conversation.

The commission warned that its decision placed the judge "on notice that any future ethical lapses will be viewed with appropriate severity.

The commission dismissed two other accusations against Mr. Williams. Mr. Felder said that left a single transgression, which "basically involved an off-hand comment at a local fair."

Mr. Felder said he concurred with censure because Mr. Williams sought it as a punishment. The appropriate sanction in the case, Mr. Felder wrote, was "between censure and something less" in his mind.

But Mr. Felder said the case illustrated the need for the commission to more often balance the actions of judges against other circumstances that may have played a role into their behavior.

"It is difficult for me to accept that - in my view - in our rulings and prosecutions we do not fully allow the panoply of the human condition (other than those often rehearsed easy-to-fake emotions of remorse or contrition) to play a more prominent role in our considerations and actions as a Commission," he wrote.

Mr. Felder, a matrimonial lawyer, was appointed to the disciplinary panel in 2003 by then-Governor George E. Pataki. He was elected chairman in 2006.

All other members of the commission issued a statement of no confidence in Mr. Felder in April 2007, after the publication of a book entitled "Schmucks!" he wrote with comedian Jackie Mason. The commission's majority blasted the book as "crude, biased, vulgar and otherwise demeaning."

While both sides said they were exploring their legal options at the time, no move has been made to formally remove Mr. Felder as chairman and he has continued to participate in commission determinations. His term on the commission and as chairman runs out on March 31, 2008.

Mr. Felder said in an interview yesterday that he felt "very strongly" that the staff of the commission and some of the members themselves were "battering" the judge during a hearing without taking into consideration his disabilities.

"I just felt that these people are very secure in the cocoon of their perfection and they don't embrace the human dynamic involved in some of these things," Mr. Felder said.

Mr. Williams' attorney, Thomas J. O'Hern of Gerstanzang, O'Hern, Hickey & Gerstenzang in Albany, declined comment on the commission's decision other than to say, "I think Raoul Felder said everything that we thought was relevant and correct."

Mr. Williams was paralyzed 39 years ago, when he was 22, in a diving accident, Mr. O'Hern said yesterday.

"He's basically lived with it his entire adult life," Mr. O'Hern said.

Commission Administrator Robert H. Tembeckjian said in an interview yesterday he had sought the removal of Mr. Williams "because I thought it was appropriate given his prior disciplinary history."

"It made no difference to the victims of the judge's misconduct that he is in a wheelchair," Mr. Tembeckjian said. "This case was simply about the judge's ethical, not physical, limitations. Although we disagreed as to sanction, it was sound public policy for the commission majority and my staff to approach this matter on the merits."

Mr. Williams, a non-lawyer, receives $5,400 a year as Kinderhook Town Court justice and $4,200 a year as Valatie Village Court justice. He has been justice in the Valatie court since 1982 and in Kinderhook since 1984.

In addition to the censures and admonishment against him, Mr. Williams was also issued a letter Letter of Dismissal and Caution for being discourteous to an attorney in 1993. His 2001 admonishment was for improper political activity.