Pa. judge gets 28 years in 'kids for cash' case
The Associated Press by Michael Rubinkam - August 11, 2011
SCRANTON, Pa. (AP) — A northeastern Pennsylvania judge was ordered Thursday to spend nearly three decades in prison for his role in a massive bribery scandal that prompted the state's high court to toss thousands of juvenile convictions and left lasting scars on the children who appeared in his courtroom and their hapless families. Former Luzerne County Judge Mark Ciavarella Jr. was sentenced to 28 years in federal prison for taking a $1 million bribe from the builder of a pair of juvenile detention centers in a case that became known as "kids for cash." Ciavarella, who denied locking up youths for money, had no reaction as the sentence was announced. From the gallery, which was crowded with family members of some of the children he incarcerated, someone shouted "Woo hoo!" In the wake of the scandal, the Pennsylvania Supreme Court overturned about 4,000 convictions issued by Ciavarella between 2003 and 2008, saying he violated the constitutional rights of the juveniles, including the right to legal counsel and the right to intelligently enter a plea. Ciavarella, 61, was tried and convicted of racketeering earlier this year. His attorneys had asked for a "reasonable" sentence in court papers, saying, in effect, that he'd already been punished enough. "The media attention to this matter has exceeded coverage given to many and almost all capital murders, and despite protestation, he will forever be unjustly branded as the 'Kids for Cash' judge," their sentencing memo said. Al Flora, Ciavarella's lawyer, called the sentence harsher than expected. The ex-judge surrendered immediately but it was not immediately known where he would serve his time. He plans to appeal both his conviction and sentence. Ciavarella, in a 15-minute speech before the sentence was handed down, apologized to his family, the Luzerne County bar and the community — and to those juveniles who appeared before him in his court. He called himself a hypocrite who failed to practice what he preached. "I blame no one but myself for what happened," he said. Then, in an extraordinary turnabout, Ciavarella attacked the government's case as well as the conclusions of the state Supreme Court and the Interbranch Commission on Juvenile Justice, a state panel that investigated the scandal. Both said Ciavarella engaged in wholesale rights violations over a period of many years. Ciavarella denied it.
"I did everything I was obligated to do protect these children's rights," he said. He also criticized Assistant U.S. Attorney Gordon Zubrod for referring to the case as "kids for cash," saying it sank his reputation. (Zubrod said outside court that he doesn't remember ever calling it that.) "He backdoored me, and I never saw it coming. Those three words made me the personification of evil," Ciavarella said. "They made me toxic and caused a public uproar the likes of which this community has never seen." In court, Zubrod said Ciavarella had "verbally abused and cruelly mocked children he sent away after violating their rights." He called the ex-judge "vicious and mean-spirited" and asked U.S. District Judge Edwin M. Kosik to punish Ciavarella's "profound evil" with a life sentence. "The criminal justice system (in Luzerne County) is ruined and will not recover in our lifetimes," Zubrod added.
Federal prosecutors accused Ciavarella and a second judge, Michael Conahan, of taking more than $2 million in bribes from Robert Mericle, the builder of the PA Child Care and Western PA Child Care detention centers, and of extorting hundreds of thousands of dollars from Robert Powell, the facilities' co-owner. Ciavarella, known for his harsh and autocratic courtroom demeanor, pocketed the cash while filling the beds of the private lockups with children as young as 10, many of them first-time offenders convicted of petty theft and other minor crimes. Ciavarella often ordered youths he had found delinquent to be immediately shackled, handcuffed and taken away without giving them a chance to say goodbye to their families. "Frankly, I don't think Ciavarella or Conahan themselves really personally cared where the juveniles went, as long as they could use their power to place the juveniles as leverage or control over Mericle and Powell," U.S. Attorney Peter Smith said Thursday. Speaking of Ciavarella, Smith added: "There's no true remorse and there's a blind unwillingness to admit the overall seriousness of his conduct." The jury returned a mixed verdict following a February trial, convicting Ciavarella of 12 counts, including racketeering and conspiracy, and acquitting him of 27 counts, including extortion. The guilty verdicts related to a payment of $997,600 from Mericle. Conahan pleaded guilty last year and awaits sentencing. Sandy Fonzo, whose son committed suicide last year at the age of 23 after bouncing in and out of Ciavarella's courtroom, said Thursday that justice was done. "This judge was wrong, what he did to my son, what he did to all of our children, what he did to our families, and today proves that," said Fonzo, who dramatically confronted Ciavarella on the courthouse steps earlier this year. Susan Mishanski also applauded the sentence. Ciavarella had ordered her son to spend three months in a wilderness camp for scuffling with another kid. "They did not even tell him where they were taking him. It was like someone kidnapped my son," she said. "It was awful." Ciavarella and Conahan initially pleaded guilty in February 2009 to honest services fraud and tax evasion in a deal that called for a sentence of more than seven years in prison. But their plea deals were rejected by Kosik, who ruled they had failed to accept responsibility for their actions.
FBI PRESS RELEASE:
Former Pennsylvania County President Judge and Juvenile Judge Mark Ciavarella Sentenced to 28 Years in Prison
U.S. Attorney’s Office - August 11, 2011 - Middle District of Pennsylvania - (717) 221-4482
SCRANTON, PA—Mark A. Ciavarella, former president judge of the Court of Common Pleas and former judge of the Juvenile Court for Luzerne County, was sentenced in federal court in Scranton, Penn., today by Senior U.S. District Court Judge Edwin M. Kosik II, announced Peter J. Smith, U.S. Attorney for Middle District of Pennsylvania. Senior Judge Kosik sentenced Ciavarella to 28 years in prison and ordered restitution be paid in the amount of $965,930 to the Commonwealth of Pennsylvania for his judicial salary and $207,861 in restitution related to the tax charges. Ciavarella and his co-defendant, Michael Conahan, who also served as president judge of the Court of Common Pleas of Luzerne County, were initially charged in January 2009 with honest services mail and wire fraud and tax fraud in connection with the use of privately owned juvenile detention facilities. The charges were the result of a federal investigation of alleged corruption in the Luzerne County court system. The inquiry began in 2007 and over the next four years expanded to include county government offices, state legislators, school districts, and contractors in Northeastern Pennsylvania. Both defendants agreed to plead guilty. In July 2009, Judge Kosik rejected the proposed plea agreements because the defendants did not appear to accept responsibility for their conduct. In September 2009 and September 2010, a grand jury in Harrisburg, Penn., returned superseding indictments charging both defendants with racketeering, honest services mail fraud, money laundering, extortion, bribery, tax violations, and conspiracy. The government also sought the forfeiture of approximately $2.8 million in assets allegedly acquired by the defendants through racketeering and money laundering. In response to the U.S. Supreme Court’s 2010 decision in United States v. Skilling, the 2010 indictment specifically charged that bribes and kickbacks were paid to the defendants.
After an 11-day trial in Scranton in February 2011, a jury found Ciavarella guilty on 12 of 39 counts: racketeering, racketeering conspiracy, money laundering conspiracy, conspiracy to defraud the United States, four counts of honest services mail fraud, and four counts of filing false income tax returns. The jury also found that Ciavarella should forfeit $997,600, the sum he received from Robert Mericle, the developer who built the juvenile detention facilities. Ciavarella testified at trial, claiming that the payments he received from Mericle were “finders fees” or “honest money” with no connection to Ciavarella’s actions as a judge, and denied that he received payment from Robert Powell, owner of the facilities. The evidence established that Conahan closed the Luzerne County Juvenile Detention Facility when he was chief judge and helped arrange the financing for the private facilities; that Ciavarella, as juvenile court judge, sent juveniles to those facilities; that both men obstructed efforts to question the county’s use of the facilities and their financial relationships with Mericle and Powell; and both judges used bank accounts, straw parties and real estate vacation property to hide and launder payments received from Mericle and Powell. The evidence also showed that Ciavarella failed to report receipt of the funds on annual financial interest statements he was required to file as a judge and failed to report the income on his federal income tax returns. Mericle and Powell have pleaded guilty pursuant to plea agreements and are awaiting sentencing. Conahan pleaded guilty to racketeering conspiracy in April 2010. He did not testify at trial and has not been sentenced. The judicial scandal, described as the worst in Pennsylvania’s history, and the federal prosecutions have had major consequences: Ciavarella and Conahan resigned from the bench in 2009. Reform and housecleaning are underway in the Luzerne County court system. The Supreme Court of Pennsylvania was compelled to vacate thousands of juvenile convictions in Luzerne County as a result of Ciavarella’s conduct as a juvenile court judge. A State Interbranch Commission on Juvenile Justice was established to study what happened and to recommend changes in the state’s justice system aimed at safeguarding the constitutional rights of juveniles and improving the oversight and disciplinary process for judges in Pennsylvania. In June 2011, a committee of the American Bar Association reviewed and made recommendations to improve procedures in the state’s Judicial Conduct Board. A procedure was established in Luzerne County for compensation of victims of the activities of Ciavarella and Conahan. Ciavarella voluntarily surrendered at the end of the sentencing hearing and was taken into custody by the U.S. Marshals. In the U.S. Attorney’s Office, the prosecution was conducted by a team consisting of Senor Litigation Counsel Gordon A.D. Zubrod, Assistant U.S. Attorneys William S. Houser, Michael A. Consiglio and Amy Phillips, and Criminal Division Chief Christian A. Fisanick. The case was investigated by the agents of the Internal Revenue Service, Criminal Investigations and the FBI’s Scranton office.
Friday, August 12, 2011
Thursday, August 11, 2011
Lawyer and Two Others Plead Guilty in Baby-Selling Ring
3 plead guilty in California 'baby-selling ring'
The Associated Press - August 10, 2011
SAN DIEGO, CA -- A California lawyer who specializes in reproductive law is the latest of three women to plead guilty for taking part in what federal prosecutors called a "baby-selling ring" that charged a dozen couples more than $100,000 to adopt babies born from surrogate pregnancies. Theresa Erickson, 43, of Poway pleaded guilty to conspiracy to commit wire fraud Tuesday before U.S. Magistrate Judge William McCurine. According to her plea agreement, Erickson along with a Maryland-based lawyer who also specializes in reproductive law and a Las Vegas woman, recruited women to travel to the Ukraine to be implanted with embryos created from the sperm and egg of donors. Once a gestational carrier, or surrogate, reaches the second trimester of pregnancy, prosecutors claimed the defendants would "shop" the babies by falsely telling couples that a couple who had intended to adopt the baby backed out of the deal. The new couple that agreed to adopt the unborn baby would have to pay more than $100,000 in fees. Women who agreed to carry the babies to term were paid from $38,000 to $45,000, court documents said. While most of the surrogates and adoptive parents lived outside of California, prosecutors said the defendants broke state law by falsely declaring with the San Diego Superior Court that the unborn baby was part of an agreement made between the surrogate and the couple before pregnancy. The law is designed to prevent profit making from the sale of parental rights. By falsely declaring the unborn baby was the result of a legitimate surrogacy arrangement, prosecutors said the defendants obtained pre-birth judgments that named the adoptive parents on the babies' birth certificates. The surrogates were sent to Ukraine to have the embryos implanted because no American fertility doctor would perform such a procedure without documents proving that an agreement existed between the woman and the "intended parents," Assistant U.S. Attorney Jason A. Forge told the Los Angeles Times. Additionally, prosecutors alleged the defendants misrepresented the identities of the sperm and egg donors and got more than $20,000 in state insurance coverage for the pregnant women who were not otherwise eligible to receive benefits. The FBI investigated the scheme after receiving complaints from gestational carriers and others, said Special Agent Darrell Foxworth, an FBI spokesman in San Diego. The couples who adopted the babies did not believe they were breaking the law and will not have their parental rights taken away, Forge said. Erickson, who prosecutors believe profited about $70,000 through the scheme, will pay each of the 12 couples $10,000 in restitution and up to $250,000 in fines to the government. She faces up to five years in prison when she is sentenced Oct. 28. An afterhours call to Erickson's attorney, Ezekiel Cortez, was not immediately returned. Hilary Neiman, the Maryland attorney, pleaded guilty to conspiracy to commit wire fraud on July 28. Carla Chambers, who is identified in court papers as a surrogate on multiple occasions and helped recruit women to be gestational carriers, pleaded guilty last week to conspiracy to engage in monetary transactions derived from unlawful activity. Court documents detail email exchanges in which Neiman and Chambers discussed inquiries from a prospective couple who wanted to know whether they and their close friends could each parent a set of twins. "Firstly, I am not opposed to it, however it does not give me the warm fuzzies," Chambers replied. "My second thoughts would be, what if something goes wrong and one twin dies, there would need to be guidelines about what happens. I would of course to prefer to place together! But would be open to it." Neiman and Chambers face the same penalties as Erickson when they are sentenced Oct. 14 and Oct. 28, respectively.
-------------- RELATED STORY:
Surrogacy Scandal Raises Question About Regulation
The Associated Press - August 11, 2011
She built a name for herself as a highly skilled reproductive law specialist in a state considered the nation's hub for surrogate pregnancies with its well-established network of sperm banks, fertility clinics and social workers. But prosecutors say Theresa Erickson was actually working the system to become an international baby broker, running a birthing factory out of the Ukraine that duped at least a dozen American couples into paying $150,000 for children they thought were being adopted legally. Details about the ring surfaced in federal court in San Diego in recent days after Erickson pleaded guilty to fraud charges in a case that prosecutors say highlights the need for more protection for adoptive parents, children and surrogate mothers.
Prosecutors described an elaborate scheme that stretched across two continents. Erickson and two others allegedly recruited women to go to the Ukraine and be implanted with embryos from anonymous donors. They told their clients the babies had been part of a surrogacy contract and that the prospective parents had backed out at the last minute, Assistant U.S. Attorney Jason A. Forge said. In fact, he said, there were never any such parents or contracts. The three were instead paying the surrogate mothers between $38,000 and $45,000 for each successful pregnancy and keeping the rest of the adoption money for themselves, Forge said. They also misled the parents into believing they knew who the sperm and egg donors were when they were anonymous, he said. Erickson also admitted to filing false applications for the surrogates to California's state insurance program to subsidize the medical costs of the deliveries of the babies. The case highlights the need for more protection for the vulnerable adoptive parents, the babies involved and the surrogate mothers, Forge said. He estimates Erickson raked in at least $70,000 alone from the scheme. Erickson filed false declarations and pleadings in the San Diego Superior Court that the unborn babies were the result of a legitimate surrogacy arrangement to obtain pre-birth judgments that named the adoptive parents on the babies' birth certificates and guaranteed them full parental rights, according to court documents. The parents will not lose their parental rights because they did not know any laws were being broken, Forge said. The case, however, exemplifies how easily people involved in these arrangements can be taken advantage of, especially people desperate to have children, experts say. "I would hope that the case enlightens legislators in terms of the vulnerability of the parents who want children and the need for additional protection for them and the carriers and the babies," Forge said. He declined to elaborate on what those regulations would be exactly but experts say the case shows the challenge in trying to regulate the service, which has raised a host of questions by religious groups, bioethicists and others, particularly over whether it is ethical for surrogates to be paid. Experts say California already leads the nation in trying to regulate the service and prevent such abuses But at the same time, California "has become the capital of reproductive malpractice," said Glenn McGee, editor and chief of The American Journal of Bioethics, who has written a book about the topic called "The Perfect Baby." That's partly because the state has a flourishing surrogacy market that attracts people from around the globe looking to adopt through surrogacy pregnancies. "There's a kind of a web of service in California that makes it a special place, and the attorneys know the law best because some of the most challenging cases involving surrogacy have been in California," said McGee, who works at the Center for Practical Bioethics in Kansas City. California courts have made landmark rulings on the subject, including a 1998 case involving a couple who adopted a baby through a surrogacy pregnancy and wanted to get a divorce. The father claimed the baby was not his since he had no biological connection to the child. But the court found that when a married couple intends to procreate using a non-genetically related embryo implanted into a surrogate, the legal contract between them makes the couple the child's lawful parents. The ruling laid the foundation for California's elaborate system of protecting surrogates. The three women tried to beat that system, but got caught when some of their surrogate mothers tipped off federal investigators, officials say. The other defendants are a Maryland-based lawyer who also specializes in reproductive law and a Las Vegas surrogate mother. Forge said the three used their contacts to find customers. Erickson, 43, spoke frequently about the topic on TV and radio because of her expertise in the subject. "Surrogacy is hard to regulate and hard to do responsibly if there are market pressures, and if there are exploitative and predatory legal practices," McGee said. "There is so much potential for abuse here." There are also genetic risks for future generations if no one knows who the donors are who are producing the children, McGee said. At the same time, he said surrogacy has enriched the lives of countless people yearning to raise a child of their own, and he worries cases like this could stymie efforts to properly regulate it. "This case will set back attempts to create clear standards for surrogacy again, and it's a very bad time for that to happen because there are more desperate parents than ever, there are more problems than ever with international exploitation of adoptions, and the government is ill-prepared to regulate this right now," McGee said. Erickson pleaded guilty to conspiracy to commit wire fraud. She has been ordered to pay each of the 12 couples $10,000 in restitution and up to $250,000 in fines to the government. She and the other two women face up to five years in prison when they are sentenced in October. Erickson and her attorney, Ezekiel Cortez, declined to comment. Hilary Neiman, the Maryland attorney, pleaded guilty to conspiracy to commit wire fraud on July 28. Carla Chambers, who is identified in court papers as the surrogate who helped recruit women to be gestational carriers, pleaded guilty last week to conspiracy to engage in monetary transactions derived from unlawful activity.
The Associated Press - August 10, 2011
SAN DIEGO, CA -- A California lawyer who specializes in reproductive law is the latest of three women to plead guilty for taking part in what federal prosecutors called a "baby-selling ring" that charged a dozen couples more than $100,000 to adopt babies born from surrogate pregnancies. Theresa Erickson, 43, of Poway pleaded guilty to conspiracy to commit wire fraud Tuesday before U.S. Magistrate Judge William McCurine. According to her plea agreement, Erickson along with a Maryland-based lawyer who also specializes in reproductive law and a Las Vegas woman, recruited women to travel to the Ukraine to be implanted with embryos created from the sperm and egg of donors. Once a gestational carrier, or surrogate, reaches the second trimester of pregnancy, prosecutors claimed the defendants would "shop" the babies by falsely telling couples that a couple who had intended to adopt the baby backed out of the deal. The new couple that agreed to adopt the unborn baby would have to pay more than $100,000 in fees. Women who agreed to carry the babies to term were paid from $38,000 to $45,000, court documents said. While most of the surrogates and adoptive parents lived outside of California, prosecutors said the defendants broke state law by falsely declaring with the San Diego Superior Court that the unborn baby was part of an agreement made between the surrogate and the couple before pregnancy. The law is designed to prevent profit making from the sale of parental rights. By falsely declaring the unborn baby was the result of a legitimate surrogacy arrangement, prosecutors said the defendants obtained pre-birth judgments that named the adoptive parents on the babies' birth certificates. The surrogates were sent to Ukraine to have the embryos implanted because no American fertility doctor would perform such a procedure without documents proving that an agreement existed between the woman and the "intended parents," Assistant U.S. Attorney Jason A. Forge told the Los Angeles Times. Additionally, prosecutors alleged the defendants misrepresented the identities of the sperm and egg donors and got more than $20,000 in state insurance coverage for the pregnant women who were not otherwise eligible to receive benefits. The FBI investigated the scheme after receiving complaints from gestational carriers and others, said Special Agent Darrell Foxworth, an FBI spokesman in San Diego. The couples who adopted the babies did not believe they were breaking the law and will not have their parental rights taken away, Forge said. Erickson, who prosecutors believe profited about $70,000 through the scheme, will pay each of the 12 couples $10,000 in restitution and up to $250,000 in fines to the government. She faces up to five years in prison when she is sentenced Oct. 28. An afterhours call to Erickson's attorney, Ezekiel Cortez, was not immediately returned. Hilary Neiman, the Maryland attorney, pleaded guilty to conspiracy to commit wire fraud on July 28. Carla Chambers, who is identified in court papers as a surrogate on multiple occasions and helped recruit women to be gestational carriers, pleaded guilty last week to conspiracy to engage in monetary transactions derived from unlawful activity. Court documents detail email exchanges in which Neiman and Chambers discussed inquiries from a prospective couple who wanted to know whether they and their close friends could each parent a set of twins. "Firstly, I am not opposed to it, however it does not give me the warm fuzzies," Chambers replied. "My second thoughts would be, what if something goes wrong and one twin dies, there would need to be guidelines about what happens. I would of course to prefer to place together! But would be open to it." Neiman and Chambers face the same penalties as Erickson when they are sentenced Oct. 14 and Oct. 28, respectively.
-------------- RELATED STORY:
Surrogacy Scandal Raises Question About Regulation
The Associated Press - August 11, 2011
She built a name for herself as a highly skilled reproductive law specialist in a state considered the nation's hub for surrogate pregnancies with its well-established network of sperm banks, fertility clinics and social workers. But prosecutors say Theresa Erickson was actually working the system to become an international baby broker, running a birthing factory out of the Ukraine that duped at least a dozen American couples into paying $150,000 for children they thought were being adopted legally. Details about the ring surfaced in federal court in San Diego in recent days after Erickson pleaded guilty to fraud charges in a case that prosecutors say highlights the need for more protection for adoptive parents, children and surrogate mothers.
Prosecutors described an elaborate scheme that stretched across two continents. Erickson and two others allegedly recruited women to go to the Ukraine and be implanted with embryos from anonymous donors. They told their clients the babies had been part of a surrogacy contract and that the prospective parents had backed out at the last minute, Assistant U.S. Attorney Jason A. Forge said. In fact, he said, there were never any such parents or contracts. The three were instead paying the surrogate mothers between $38,000 and $45,000 for each successful pregnancy and keeping the rest of the adoption money for themselves, Forge said. They also misled the parents into believing they knew who the sperm and egg donors were when they were anonymous, he said. Erickson also admitted to filing false applications for the surrogates to California's state insurance program to subsidize the medical costs of the deliveries of the babies. The case highlights the need for more protection for the vulnerable adoptive parents, the babies involved and the surrogate mothers, Forge said. He estimates Erickson raked in at least $70,000 alone from the scheme. Erickson filed false declarations and pleadings in the San Diego Superior Court that the unborn babies were the result of a legitimate surrogacy arrangement to obtain pre-birth judgments that named the adoptive parents on the babies' birth certificates and guaranteed them full parental rights, according to court documents. The parents will not lose their parental rights because they did not know any laws were being broken, Forge said. The case, however, exemplifies how easily people involved in these arrangements can be taken advantage of, especially people desperate to have children, experts say. "I would hope that the case enlightens legislators in terms of the vulnerability of the parents who want children and the need for additional protection for them and the carriers and the babies," Forge said. He declined to elaborate on what those regulations would be exactly but experts say the case shows the challenge in trying to regulate the service, which has raised a host of questions by religious groups, bioethicists and others, particularly over whether it is ethical for surrogates to be paid. Experts say California already leads the nation in trying to regulate the service and prevent such abuses But at the same time, California "has become the capital of reproductive malpractice," said Glenn McGee, editor and chief of The American Journal of Bioethics, who has written a book about the topic called "The Perfect Baby." That's partly because the state has a flourishing surrogacy market that attracts people from around the globe looking to adopt through surrogacy pregnancies. "There's a kind of a web of service in California that makes it a special place, and the attorneys know the law best because some of the most challenging cases involving surrogacy have been in California," said McGee, who works at the Center for Practical Bioethics in Kansas City. California courts have made landmark rulings on the subject, including a 1998 case involving a couple who adopted a baby through a surrogacy pregnancy and wanted to get a divorce. The father claimed the baby was not his since he had no biological connection to the child. But the court found that when a married couple intends to procreate using a non-genetically related embryo implanted into a surrogate, the legal contract between them makes the couple the child's lawful parents. The ruling laid the foundation for California's elaborate system of protecting surrogates. The three women tried to beat that system, but got caught when some of their surrogate mothers tipped off federal investigators, officials say. The other defendants are a Maryland-based lawyer who also specializes in reproductive law and a Las Vegas surrogate mother. Forge said the three used their contacts to find customers. Erickson, 43, spoke frequently about the topic on TV and radio because of her expertise in the subject. "Surrogacy is hard to regulate and hard to do responsibly if there are market pressures, and if there are exploitative and predatory legal practices," McGee said. "There is so much potential for abuse here." There are also genetic risks for future generations if no one knows who the donors are who are producing the children, McGee said. At the same time, he said surrogacy has enriched the lives of countless people yearning to raise a child of their own, and he worries cases like this could stymie efforts to properly regulate it. "This case will set back attempts to create clear standards for surrogacy again, and it's a very bad time for that to happen because there are more desperate parents than ever, there are more problems than ever with international exploitation of adoptions, and the government is ill-prepared to regulate this right now," McGee said. Erickson pleaded guilty to conspiracy to commit wire fraud. She has been ordered to pay each of the 12 couples $10,000 in restitution and up to $250,000 in fines to the government. She and the other two women face up to five years in prison when they are sentenced in October. Erickson and her attorney, Ezekiel Cortez, declined to comment. Hilary Neiman, the Maryland attorney, pleaded guilty to conspiracy to commit wire fraud on July 28. Carla Chambers, who is identified in court papers as the surrogate who helped recruit women to be gestational carriers, pleaded guilty last week to conspiracy to engage in monetary transactions derived from unlawful activity.
Wednesday, August 10, 2011
Prosecutors Behaving Badly Seldom Get Sanctioned
Prosecutors Behaving Badly Seldom Get Sanctioned
The Connecticut Law Tribune by Mark Dubois - August 8, 2011
I readily admit that I am not a criminal law maven. During my seven-plus years in the disciplinary system, I had very few discipline cases involving state’s attorneys. Thus, I was more than a bit surprised last year when I was sitting in the state Supreme Court preparing to argue a lawyer discipline case and realized that the case preceding mine, State v. Lenarz, involved an alleged violation of Rule 1.6, the rule of attorney/client confidentiality. Kind of like hitting the daily double—a lawyer misconduct case and in the criminal context to boot. The facts of Lenarz were not disputed, and are well laid out in the decision recently released by the Supreme Court. Patrick Lenarz was accused of sexual assault on two children. Police served a search warrant and seized his computer. Within 24 hours, his lawyer was in court complaining that the computer contained a lot of correspondence between the accused and the lawyer, and that it should not be reviewed by the state’s attorneys. Despite an order not to do so, the crime lab folks found and printed all of the attorney/client correspondence and gave it to the police. It eventually made its way to the state’s attorney prosecuting the case as it became a part of the case file. Despite the fact that it was clearly lawyer/client stuff, the state’s attorney read it all. After being convicted, Lenarz appealed on the grounds that the correspondence with his lawyer contained sensitive material and trial strategy and that he was prejudiced by having the state’s attorney in the possession of this stuff. The Supreme Court agreed. So much so that within a few days of oral argument they ordered Lenarz released pending the release of their decision. Finding that the materials seized by the police, printed out by the crime lab, and read by the state’s attorney were part of the most sacred of privileged communications, and that no amount of prophylaxis could un-ring the bell and provide a fair retrial, the court has now remanded and ordered dismissal. Though not referencing it, the decision seems to follow the 1991 case of Philips v. Warden which presumed prejudice in a case involving a violation of a fundamental aspect of an attorney/client relationship. In Philips, the violation was a conflict of interest so egregious that the court presumed prejudice. Here the violation was invasion of confidential communications. Again, so egregious that prejudice had to be found. One part of the decision troubled me though. In Lenarz, the majority noted that it was “extremely troubled” by the conduct of the state’s attorney because the communications were clearly of an attorney/client nature, even being noted that at the top of some of the pages. Yet despite being troubled, the court imposed no discipline on the prosecutor. Practice Book 2-32(a)(2)(F) allows the Grievance Committee to screen out and dismiss any case where the alleged conduct occurred in a court, “and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct” or has either determined that no misconduct has occurred or has declined to refer the matter to the Grievance Committee. Yes, “or” can be used conjunctively—“would you like cream or sugar in your coffee?” — but the common use of the word is as a disjunctive. The use of “or” instead of “and” in the rule seems to suggest a presumption that if a court finds misconduct, it will impose discipline. The Grievance Committee, being only an “arm of the court,” cannot act where a court has already taken jurisdiction and found misconduct, even if no discipline is imposed. A quick Westlaw search reveals many cases where courts have found misconduct by prosecutors, ranging from Brady violations to evidence destruction to calling defendants “fiends” and “rats.” While some of the misconduct has been sufficient to warrant new trials or dismissals, none if it that I can think of has resulted in discipline of the lawyers involved. Perhaps the appellate courts think that the Grievance Committee will clean up that loose end. But it never happens. And as prosecutors are immunized from civil liability, the conduct goes unpunished. I do not want to debate the extent that rules of conduct have a deterrent effect on lawyer conduct, though general and specific deterrence have often been used as justifications for the imposition of discipline. If that is true, then a complete lack of any consequence for ethics violations in criminal cases may encourage what, at best, appears to be a casual approach towards, and, at worst, deliberate disregard of ethics standards. Neither is a good situation. Mark Dubois, the former chief disciplinary counsel for Connecticut, is now an attorney at the New London firm of Geraghty & Bonnano.
The Connecticut Law Tribune by Mark Dubois - August 8, 2011
I readily admit that I am not a criminal law maven. During my seven-plus years in the disciplinary system, I had very few discipline cases involving state’s attorneys. Thus, I was more than a bit surprised last year when I was sitting in the state Supreme Court preparing to argue a lawyer discipline case and realized that the case preceding mine, State v. Lenarz, involved an alleged violation of Rule 1.6, the rule of attorney/client confidentiality. Kind of like hitting the daily double—a lawyer misconduct case and in the criminal context to boot. The facts of Lenarz were not disputed, and are well laid out in the decision recently released by the Supreme Court. Patrick Lenarz was accused of sexual assault on two children. Police served a search warrant and seized his computer. Within 24 hours, his lawyer was in court complaining that the computer contained a lot of correspondence between the accused and the lawyer, and that it should not be reviewed by the state’s attorneys. Despite an order not to do so, the crime lab folks found and printed all of the attorney/client correspondence and gave it to the police. It eventually made its way to the state’s attorney prosecuting the case as it became a part of the case file. Despite the fact that it was clearly lawyer/client stuff, the state’s attorney read it all. After being convicted, Lenarz appealed on the grounds that the correspondence with his lawyer contained sensitive material and trial strategy and that he was prejudiced by having the state’s attorney in the possession of this stuff. The Supreme Court agreed. So much so that within a few days of oral argument they ordered Lenarz released pending the release of their decision. Finding that the materials seized by the police, printed out by the crime lab, and read by the state’s attorney were part of the most sacred of privileged communications, and that no amount of prophylaxis could un-ring the bell and provide a fair retrial, the court has now remanded and ordered dismissal. Though not referencing it, the decision seems to follow the 1991 case of Philips v. Warden which presumed prejudice in a case involving a violation of a fundamental aspect of an attorney/client relationship. In Philips, the violation was a conflict of interest so egregious that the court presumed prejudice. Here the violation was invasion of confidential communications. Again, so egregious that prejudice had to be found. One part of the decision troubled me though. In Lenarz, the majority noted that it was “extremely troubled” by the conduct of the state’s attorney because the communications were clearly of an attorney/client nature, even being noted that at the top of some of the pages. Yet despite being troubled, the court imposed no discipline on the prosecutor. Practice Book 2-32(a)(2)(F) allows the Grievance Committee to screen out and dismiss any case where the alleged conduct occurred in a court, “and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct” or has either determined that no misconduct has occurred or has declined to refer the matter to the Grievance Committee. Yes, “or” can be used conjunctively—“would you like cream or sugar in your coffee?” — but the common use of the word is as a disjunctive. The use of “or” instead of “and” in the rule seems to suggest a presumption that if a court finds misconduct, it will impose discipline. The Grievance Committee, being only an “arm of the court,” cannot act where a court has already taken jurisdiction and found misconduct, even if no discipline is imposed. A quick Westlaw search reveals many cases where courts have found misconduct by prosecutors, ranging from Brady violations to evidence destruction to calling defendants “fiends” and “rats.” While some of the misconduct has been sufficient to warrant new trials or dismissals, none if it that I can think of has resulted in discipline of the lawyers involved. Perhaps the appellate courts think that the Grievance Committee will clean up that loose end. But it never happens. And as prosecutors are immunized from civil liability, the conduct goes unpunished. I do not want to debate the extent that rules of conduct have a deterrent effect on lawyer conduct, though general and specific deterrence have often been used as justifications for the imposition of discipline. If that is true, then a complete lack of any consequence for ethics violations in criminal cases may encourage what, at best, appears to be a casual approach towards, and, at worst, deliberate disregard of ethics standards. Neither is a good situation. Mark Dubois, the former chief disciplinary counsel for Connecticut, is now an attorney at the New London firm of Geraghty & Bonnano.
Life Sentence Possible For Disgraced Kids-For-Cash Judge
Sentence of life for Ciavarella possible
The Times Leader by Terrie Morgan - August 9, 2011
Probation department finds life in prison within guidelines for offense level, transcript says.
Former Luzerne County Judge Mark Ciavarella faces a possible life sentence based on sentencing guideline calculations that were prepared by the federal probation department, according to a transcript of a pre-sentence hearing. Speaking after Ciavarella’s conviction in February, federal prosecutors estimated Ciavarella faced 151 to 188 months in prison based on sentencing guidelines. A pre-sentence investigation prepared by probation department officials differs significantly from what prosecutors originally estimated, however. Ciavarella, 61, is scheduled to be sentenced on Thursday for his conviction on 12 of the 39 counts filed against him relating to his acceptance of nearly $1 million from Robert Mericle, the builder of two juvenile detention centers utilized by the county. Federal sentencing guidelines are based on a defendant’s offense level, a numeric figure that is calculated based on various factors, including the seriousness of the crime and whether a defendant has a prior criminal record.
In Ciavarella’s case, prosecutors initially estimated that his offense level was 34, which corresponds to the 151- to 188-month prison sentence. But Assistant U.S. Attorney William Houser said probation department officials determined the offense level was 44, which translates to a guideline range of life in prison, according to a transcript of a July 20 pre-sentence hearing before U.S. District Judge Edwin Kosik. Anthony Harvilla, chief of the federal probation department, said he could not comment on what factors were involved in Ciavarella’s guideline calculation because such information is confidential. Speaking generally, Harvilla said estimates prepared by prosecutors and defense attorneys often differ from the final figure calculated by the probation department. Attorneys will provide the department a “guesstimate” of what they believe the guideline range should be, he said, but they sometimes miss some of factors that serve to increase a defendant’s sentence, known as “enhancements.” “Once sentencing enhancements are applied, that adds to the offense level,” he said. Federal judges utilize the guideline range to help determine an appropriate sentence. The guidelines are advisory, however. A judge is free to issue a shorter or longer sentence. depart above or below them. Ciavarella’s attorneys, William Ruzzo and Al Flora, have challenged the probation department’s guideline calculation, including its decision to classify roughly 5,000 juveniles who appeared before Ciavarella between 2003 and 2008 as “victims” of his crimes.
Prosecutors originally alleged Ciavarella incarcerated juveniles as part of a scheme to boost profits at the PA Child Care and Western PA Child Care juvenile detention facilities, then extorted money from the co-owner, Robert Powell. Ciavarella was acquitted of all charges relating to the alleged extortion of Powell. None of the juveniles who appeared before Ciavarella in the specified time frame was called to testify at his trial. At the pre-sentence hearing, Flora objected to the number of victims, noting that the vast majority of youths in question were taken to PA and Western PA Child Care by police, and not placed there by Ciavarella. “The problem is, we use this number of 5,000 kids. That’s not even close to being accurate,” Flora said, according to the transcript of the hearing. Prosecutors contend the juveniles can be considered “victims” because Ciavarella failed to disclose he had a conflict of interest in presiding over their cases based on his acceptance of money from Mericle. Kosik is expected to rule on their objections at Thursday’s sentencing hearing. Contacted Monday, Ruzzo declined to speculate on how Kosik might rule. Peter Vaira, a former federal prosecutor who specializes in federal law, said he doubts Kosik, even if he agrees with the probation department’s calculation, will sentence Ciavarella to life. “That’s not a real, realistic possibility,” Vaira said. “Judges are very reluctant to give a life sentence.” Still, Ciavarella is likely facing significant prison time, Vaira said. Given his age, any sentence Kosik imposes could essentially amount to a life term, he said. Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179 - Beseckertmorgan@timesleader.com
RELATED BACKGROUND STORIES:
Judicial "Kids for Cash" UPDATE - "Losing Faith in the Justice System"
The Times Leader by Terrie Morgan - August 9, 2011
Probation department finds life in prison within guidelines for offense level, transcript says.
Former Luzerne County Judge Mark Ciavarella faces a possible life sentence based on sentencing guideline calculations that were prepared by the federal probation department, according to a transcript of a pre-sentence hearing. Speaking after Ciavarella’s conviction in February, federal prosecutors estimated Ciavarella faced 151 to 188 months in prison based on sentencing guidelines. A pre-sentence investigation prepared by probation department officials differs significantly from what prosecutors originally estimated, however. Ciavarella, 61, is scheduled to be sentenced on Thursday for his conviction on 12 of the 39 counts filed against him relating to his acceptance of nearly $1 million from Robert Mericle, the builder of two juvenile detention centers utilized by the county. Federal sentencing guidelines are based on a defendant’s offense level, a numeric figure that is calculated based on various factors, including the seriousness of the crime and whether a defendant has a prior criminal record.
In Ciavarella’s case, prosecutors initially estimated that his offense level was 34, which corresponds to the 151- to 188-month prison sentence. But Assistant U.S. Attorney William Houser said probation department officials determined the offense level was 44, which translates to a guideline range of life in prison, according to a transcript of a July 20 pre-sentence hearing before U.S. District Judge Edwin Kosik. Anthony Harvilla, chief of the federal probation department, said he could not comment on what factors were involved in Ciavarella’s guideline calculation because such information is confidential. Speaking generally, Harvilla said estimates prepared by prosecutors and defense attorneys often differ from the final figure calculated by the probation department. Attorneys will provide the department a “guesstimate” of what they believe the guideline range should be, he said, but they sometimes miss some of factors that serve to increase a defendant’s sentence, known as “enhancements.” “Once sentencing enhancements are applied, that adds to the offense level,” he said. Federal judges utilize the guideline range to help determine an appropriate sentence. The guidelines are advisory, however. A judge is free to issue a shorter or longer sentence. depart above or below them. Ciavarella’s attorneys, William Ruzzo and Al Flora, have challenged the probation department’s guideline calculation, including its decision to classify roughly 5,000 juveniles who appeared before Ciavarella between 2003 and 2008 as “victims” of his crimes.
Prosecutors originally alleged Ciavarella incarcerated juveniles as part of a scheme to boost profits at the PA Child Care and Western PA Child Care juvenile detention facilities, then extorted money from the co-owner, Robert Powell. Ciavarella was acquitted of all charges relating to the alleged extortion of Powell. None of the juveniles who appeared before Ciavarella in the specified time frame was called to testify at his trial. At the pre-sentence hearing, Flora objected to the number of victims, noting that the vast majority of youths in question were taken to PA and Western PA Child Care by police, and not placed there by Ciavarella. “The problem is, we use this number of 5,000 kids. That’s not even close to being accurate,” Flora said, according to the transcript of the hearing. Prosecutors contend the juveniles can be considered “victims” because Ciavarella failed to disclose he had a conflict of interest in presiding over their cases based on his acceptance of money from Mericle. Kosik is expected to rule on their objections at Thursday’s sentencing hearing. Contacted Monday, Ruzzo declined to speculate on how Kosik might rule. Peter Vaira, a former federal prosecutor who specializes in federal law, said he doubts Kosik, even if he agrees with the probation department’s calculation, will sentence Ciavarella to life. “That’s not a real, realistic possibility,” Vaira said. “Judges are very reluctant to give a life sentence.” Still, Ciavarella is likely facing significant prison time, Vaira said. Given his age, any sentence Kosik imposes could essentially amount to a life term, he said. Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179 - Beseckertmorgan@timesleader.com
RELATED BACKGROUND STORIES:
Judicial "Kids for Cash" UPDATE - "Losing Faith in the Justice System"
Kids For Cash Judge Trial For Kickbacks To Begin
Federal Court Rules for More Cover-Ups
News Agencies Lose Bid to Access Police Report
The New York Law Journal by Daniel Wise - August 10, 2011
Two news organizations cannot have access to an internal Nassau County Police Department report that had been turned over in discovery in a civil rights damages action that has since been settled, a federal judge in Central Islip has ruled. The 712-page report, prepared by the department's internal affairs unit, examined the department's handing of complaints of domestic violence from a woman who was subsequently murdered by her boyfriend. In November, the report was turned over in discovery in a lawsuit, Dorsett v. County of Nassau, 10-cv-1258, brought by the mother of the slain woman. When the mother's lawyer, Frederick K. Brewington, announced that he would hold a news conference releasing the contents of the report, the county's lawyers sought and were granted a protective order barring the public dissemination of the report. Newsday and News 12, a Long Island cable channel, had also opposed the request for a protective order from Magistrate Judge A. Kathleen Tomlinson (NYLJ, Jan. 19). The three filed objections to the protective order with Eastern District Judge Arthur D. Spatt. Since then the case has been settled under confidential terms. Newsday and News 12, however, both pursued their claims that the protective order be lifted. They argued that granting the order, after the document had been handed over in discovery, was the equivalent of a gag order, which could not withstand First Amendment scrutiny. Judge Spatt rejected the argument. "Unlike a gag order which places general restrictions on speech," he wrote, "the present protective order only precludes the dissemination of the [report] as received through discovery." Nassau County Police Commissioner Lawrence Mulvey has publicly stated that the report found that seven officers, including a patrol supervisor, had failed to protect Jo'Anna Bird who was murdered despite repeated pleas for help. Mr. Brewington said he may ask Judge Spatt to reconsider his order so "this important information can be released to the public."
BACKGROUND STORIES:
Right to Know by Peter Kohler
December 7, 2010- This week a federal magistrate will weigh arguments over whether you have a right to know the facts behind the failures of Nassau police officers to protect Jo’Anna Bird from the man who murdered her. The facts are contained in an investigation ordered by Nassau Police Commissioner Lawrence Mulvey. The report said eight officers failed to properly investigate a series of protective orders that Leonardo Valdez-Cruz had violated days before he killed Bird. Mulvey refused to release the report. Last week, Fred Brewington, who represents Bird’s family in a civil suit against Nassau County, said he would release the report—without naming the officers involved. But Nassau County objected, persuading a federal magistrate to prevent Brewington from doing so until lawyers could argue the issue. Lawyers for News 12 and Newsday have filed papers supporting the release.
There are two key questions: Is there is systematic failure in the way Nassau police enforce the law? The Bird family’s lawsuit says so, arguing that the county fails to properly train its officers, ignores their failures to enforce laws, and condones inaccurate and deceptive police reports. Equally important: Does the public have a right to know whether this report sheds light on such a failed system? So is lax law enforcement an isolated problem in Nassau County? Or is it a systemic failure running from top to bottom in the police department, demanding not only further investigations—this time by outsiders—but, perhaps, a shakeup up of the police department, from top to bottom. The public has a right to know.
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7 NY COPS DISCIPLINED FOR BLOWING DV RESPONSES
www.lineofduty.com
NEWSDAY
NASSAU COUNTY, NEW YORK
Seven Nassau officers, including a patrol supervisor, face disciplinary action after an internal review found they did not properly investigate at least four domestic violence visits to Jo'Anna Bird's mother's home just days before, police say, Bird's former boyfriend killed her. Nassau police Commissioner Lawrence Mulvey said he was "deeply disappointed" in the actions of the officers, whom he declined to identify. But he also called their actions "an isolated, unfortunate occurrence" based on the preliminary results of a survey of responses to domestic violence calls. Fred Brewington, an attorney who represents Bird's relatives, praised the police department for trying to discipline the officers but added, "Unfortunately, this not only was a bad set of actions by police officers but served as a death sentence for Jo'Anna Bird." Mulvey said the officers fell short in key areas: They didn't identify witnesses and people at the scene, and they didn't generate comprehensive paperwork to document the visits. "It appears as though they failed to assess the situation fully and do a thorough and comprehensive preliminary examination at the scene," Mulvey said in an interview at police headquarters in Mineola. Bird, a 24-year-old New Cassel mother, was stabbed to death in her home on Grand Boulevard on March 19. Two of the officers, who responded to the Westbury home of Sharon Dorsett - Bird's mother - as many as three times on March 15, have been reassigned to nonpatrol jobs, and the other four officers involved in the March 17 visit have been transferred, as was the patrol supervisor who oversaw the officers who responded on March 15. James Carver of the Nassau County Police Benevolent Association, which represents the officers except for the supervisor, said: "None of the actions that these police officers took were responsible for the death of this woman." Mulvey also said he is using the incident and subsequent Internal Affairs investigation to install new procedures to enhance a domestic incident policy that he said is the model for the state. Effective immediately, he said, all domestic violence calls that do not result in an arrest or in a report must be entered into an officer's data terminal located in their patrol cars, and the incident must also be reported to a supervisor. Mulvey said he did not know whether the officers who visited Dorsett's Bond Street home were aware of the order of protection against Bird's ex-boyfriend, Leonardo Valdez-Cruz, when they responded to calls on March 15 and March 17. So, Mulvey said he could not say whether the officers should have arrested Valdez-Cruz when they visited Dorsett's home, or whether Bird would be alive if the officers had acted properly. Mulvey said he was saddened by the results of the weeks-long Internal Affairs investigation, sparked by the Bird family's claims that police did not take seriously the threats on Bird's life in the days before she died and even on the day she was killed. According to Nassau police policy, "Protection is accomplished by making arrests when laws are violated. . . . Our policy is to arrest when there is reasonable cause to believe that an offense has been committed or that an order of protection has been violated." There is nothing in the law requiring an arrest when officers arrive at a scene involving an order of protection, a Nassau law enforcement source said. If there's no sign of violence and the victim is not interested in prosecution, officers may focus on making sure the victim is safe and avoid needlessly escalating the situation, the source said. Mindy Perlmutter, of the Nassau County Coalition Against Domestic Violence in Hempstead, said that even without arrests, documentation helps when a woman seeks an order of protection or reports that one has been violated. She pointed to New York's statewide computer system that allows law enforcement officials to track orders of protection for women like Bird. New York's domestic violence registry contains detailed information on orders of protection that have been issued. Madeline Seifer, director of Hofstra University's marriage and family therapy clinic, said police are the "line of defense" for domestic abuse victims who have received orders of protection. "In general, they need to follow through and make a report every time they visit a residence," she said. "Otherwise, the order of protection is useless."
The New York Law Journal by Daniel Wise - August 10, 2011
Two news organizations cannot have access to an internal Nassau County Police Department report that had been turned over in discovery in a civil rights damages action that has since been settled, a federal judge in Central Islip has ruled. The 712-page report, prepared by the department's internal affairs unit, examined the department's handing of complaints of domestic violence from a woman who was subsequently murdered by her boyfriend. In November, the report was turned over in discovery in a lawsuit, Dorsett v. County of Nassau, 10-cv-1258, brought by the mother of the slain woman. When the mother's lawyer, Frederick K. Brewington, announced that he would hold a news conference releasing the contents of the report, the county's lawyers sought and were granted a protective order barring the public dissemination of the report. Newsday and News 12, a Long Island cable channel, had also opposed the request for a protective order from Magistrate Judge A. Kathleen Tomlinson (NYLJ, Jan. 19). The three filed objections to the protective order with Eastern District Judge Arthur D. Spatt. Since then the case has been settled under confidential terms. Newsday and News 12, however, both pursued their claims that the protective order be lifted. They argued that granting the order, after the document had been handed over in discovery, was the equivalent of a gag order, which could not withstand First Amendment scrutiny. Judge Spatt rejected the argument. "Unlike a gag order which places general restrictions on speech," he wrote, "the present protective order only precludes the dissemination of the [report] as received through discovery." Nassau County Police Commissioner Lawrence Mulvey has publicly stated that the report found that seven officers, including a patrol supervisor, had failed to protect Jo'Anna Bird who was murdered despite repeated pleas for help. Mr. Brewington said he may ask Judge Spatt to reconsider his order so "this important information can be released to the public."
BACKGROUND STORIES:
Right to Know by Peter Kohler
December 7, 2010- This week a federal magistrate will weigh arguments over whether you have a right to know the facts behind the failures of Nassau police officers to protect Jo’Anna Bird from the man who murdered her. The facts are contained in an investigation ordered by Nassau Police Commissioner Lawrence Mulvey. The report said eight officers failed to properly investigate a series of protective orders that Leonardo Valdez-Cruz had violated days before he killed Bird. Mulvey refused to release the report. Last week, Fred Brewington, who represents Bird’s family in a civil suit against Nassau County, said he would release the report—without naming the officers involved. But Nassau County objected, persuading a federal magistrate to prevent Brewington from doing so until lawyers could argue the issue. Lawyers for News 12 and Newsday have filed papers supporting the release.
There are two key questions: Is there is systematic failure in the way Nassau police enforce the law? The Bird family’s lawsuit says so, arguing that the county fails to properly train its officers, ignores their failures to enforce laws, and condones inaccurate and deceptive police reports. Equally important: Does the public have a right to know whether this report sheds light on such a failed system? So is lax law enforcement an isolated problem in Nassau County? Or is it a systemic failure running from top to bottom in the police department, demanding not only further investigations—this time by outsiders—but, perhaps, a shakeup up of the police department, from top to bottom. The public has a right to know.
--------------------------------------
7 NY COPS DISCIPLINED FOR BLOWING DV RESPONSES
www.lineofduty.com
NEWSDAY
NASSAU COUNTY, NEW YORK
Seven Nassau officers, including a patrol supervisor, face disciplinary action after an internal review found they did not properly investigate at least four domestic violence visits to Jo'Anna Bird's mother's home just days before, police say, Bird's former boyfriend killed her. Nassau police Commissioner Lawrence Mulvey said he was "deeply disappointed" in the actions of the officers, whom he declined to identify. But he also called their actions "an isolated, unfortunate occurrence" based on the preliminary results of a survey of responses to domestic violence calls. Fred Brewington, an attorney who represents Bird's relatives, praised the police department for trying to discipline the officers but added, "Unfortunately, this not only was a bad set of actions by police officers but served as a death sentence for Jo'Anna Bird." Mulvey said the officers fell short in key areas: They didn't identify witnesses and people at the scene, and they didn't generate comprehensive paperwork to document the visits. "It appears as though they failed to assess the situation fully and do a thorough and comprehensive preliminary examination at the scene," Mulvey said in an interview at police headquarters in Mineola. Bird, a 24-year-old New Cassel mother, was stabbed to death in her home on Grand Boulevard on March 19. Two of the officers, who responded to the Westbury home of Sharon Dorsett - Bird's mother - as many as three times on March 15, have been reassigned to nonpatrol jobs, and the other four officers involved in the March 17 visit have been transferred, as was the patrol supervisor who oversaw the officers who responded on March 15. James Carver of the Nassau County Police Benevolent Association, which represents the officers except for the supervisor, said: "None of the actions that these police officers took were responsible for the death of this woman." Mulvey also said he is using the incident and subsequent Internal Affairs investigation to install new procedures to enhance a domestic incident policy that he said is the model for the state. Effective immediately, he said, all domestic violence calls that do not result in an arrest or in a report must be entered into an officer's data terminal located in their patrol cars, and the incident must also be reported to a supervisor. Mulvey said he did not know whether the officers who visited Dorsett's Bond Street home were aware of the order of protection against Bird's ex-boyfriend, Leonardo Valdez-Cruz, when they responded to calls on March 15 and March 17. So, Mulvey said he could not say whether the officers should have arrested Valdez-Cruz when they visited Dorsett's home, or whether Bird would be alive if the officers had acted properly. Mulvey said he was saddened by the results of the weeks-long Internal Affairs investigation, sparked by the Bird family's claims that police did not take seriously the threats on Bird's life in the days before she died and even on the day she was killed. According to Nassau police policy, "Protection is accomplished by making arrests when laws are violated. . . . Our policy is to arrest when there is reasonable cause to believe that an offense has been committed or that an order of protection has been violated." There is nothing in the law requiring an arrest when officers arrive at a scene involving an order of protection, a Nassau law enforcement source said. If there's no sign of violence and the victim is not interested in prosecution, officers may focus on making sure the victim is safe and avoid needlessly escalating the situation, the source said. Mindy Perlmutter, of the Nassau County Coalition Against Domestic Violence in Hempstead, said that even without arrests, documentation helps when a woman seeks an order of protection or reports that one has been violated. She pointed to New York's statewide computer system that allows law enforcement officials to track orders of protection for women like Bird. New York's domestic violence registry contains detailed information on orders of protection that have been issued. Madeline Seifer, director of Hofstra University's marriage and family therapy clinic, said police are the "line of defense" for domestic abuse victims who have received orders of protection. "In general, they need to follow through and make a report every time they visit a residence," she said. "Otherwise, the order of protection is useless."
Tuesday, August 2, 2011
Feds Show They Know How to Seek A Federal Monitor
Monitor Sought to Oversee Fire Department Hiring Process
The New York Law Journal by Daniel Wise - August 2, 2011
Evidence that Fire Department of New York officials injected themselves into the hiring of new recruits surfaced at a hearing yesterday to determine whether a court monitor should be appointed to oversee the FDNY's hiring process. Eastern District Judge Nicholas G. Garaufis, who last year found the department intentionally discriminated against minorities in hiring, questioned Dean Tow, the head of the FDNY's candidate investigation division, about whether he had received calls from FDNY officials about candidates with whom there were "issues." Mr. Tow said there had been inquiries in the nature of "how is it going" referring to specific job applicants, but that the calls had "no influence" on him. But a lawyer for the Vulcan Society Inc., an organization of black firefighters suing the FDNY, read into the record the 2002 deposition testimony of then-Deputy Commissioner for Personnel Sherry Kavaler, who no longer holds that position. Ms. Kavaler testified that "you would have lieutenants and captains, whatever," calling and saying "this is the son of so and so" who "beat his wife" or "socked someone in a disco. …I lived next to him for years. He's a good guy. …I'll vouch for him." Yesterday's hearing is part of ongoing litigation that began with a suit against the fire department by the U.S. government in 2007, joined by the Vulcan Society. The plaintiffs claim that three written tests used by the FDNY to screen applicants from 1999 until 2007 discriminated against minorities. The city has denied any discrimination, but Judge Garaufis has sided with the government and the Vulcan Society. In July 2009 and again in January 2010, he ruled in United States v. City of New York, 07 cv 2067, that the FDNY had discriminated against minorities in hiring. In the earlier ruling, the judge found on a complaint brought by the U.S. Department of Justice, that the FDNY's hiring practices had disparate impact in violation of Title VII of federal civil rights laws. Judge Garaufis ordered a new test, which is in the process of being developed under a court-appointed monitor, Mary Jo White, the former Southern District U.S. attorney who is now a partner at Debevoise & Plimpton. New York City has announced that the new test will be given in January, and applicants are now registering to take it. The city, which is represented by Patricia Mills, a senior counsel in the Law Department, is opposing the plaintiffs' motion and maintains that no relief is necessary to prevent discrimination in the hiring process.
Monitor Sought
The Vulcan Society is seeking a monitor to oversee the process of conducting background checks to determine the "good character" of those who pass future exams. A statistician testified yesterday for the Vulcan Society that after the test was given in 1999, though blacks made up 6.2 percent of the applicants who passed the test, they made up 23.1 percent of the group that was disqualified based on character reviews, which Mr. Tow has overseen since 2001. The Vulcan Society also is asking Judge Garaufis to find ineffectual the FDNY's internal process for overseeing bias complaints and to give a monitor the power to resolve complaints and to order measures to strengthen the recruitment of minorities. A separate hearing will be conducted on the Vulcan Society's claims for remedial hiring and back pay. The group estimates that nearly 300 minority firefighters would have been hired but for the prior discrimination, and that they are entitled to $75 million in back pay. About 7,400 minority applicants took the 1999, 2000 and 2007 exams, which Judge Garaufis has voided. More than half of the city's population belongs to a racial or ethnic minority. However, only 9 percent of the more than 11,000 uniformed firefighters are black or Hispanic. Minorities makes up 47.4 percent of the New York Police Department as of June 30, according to NYPD statistics. During yesterday's hearing, Richard H. Levy, of Levy Ratner, the Vulcan Society's lawyer, presented the records of the background checks regarding several applicants. In two examples, applicants had been involved in incidents of domestic violence. One applicant, found to have violated an order of protection, had received a conditional discharge. Mr. Tow recommended that the applicant, who was white, be appointed. In the other, he recommended against the appointment of an Hispanic applicant who received an adjournment in contemplation of dismissal for "pushing" his wife. Two other of the incidents raised by Mr. Levy involved firefighters who had been police officers acquitted of murdering Amadou Diallo. Mr. Tow recommended the appointment of one of the officers, and his predecessor recommended the appointment of the other. Daniel Wise can be contacted at dwise@alm.com
The New York Law Journal by Daniel Wise - August 2, 2011
Evidence that Fire Department of New York officials injected themselves into the hiring of new recruits surfaced at a hearing yesterday to determine whether a court monitor should be appointed to oversee the FDNY's hiring process. Eastern District Judge Nicholas G. Garaufis, who last year found the department intentionally discriminated against minorities in hiring, questioned Dean Tow, the head of the FDNY's candidate investigation division, about whether he had received calls from FDNY officials about candidates with whom there were "issues." Mr. Tow said there had been inquiries in the nature of "how is it going" referring to specific job applicants, but that the calls had "no influence" on him. But a lawyer for the Vulcan Society Inc., an organization of black firefighters suing the FDNY, read into the record the 2002 deposition testimony of then-Deputy Commissioner for Personnel Sherry Kavaler, who no longer holds that position. Ms. Kavaler testified that "you would have lieutenants and captains, whatever," calling and saying "this is the son of so and so" who "beat his wife" or "socked someone in a disco. …I lived next to him for years. He's a good guy. …I'll vouch for him." Yesterday's hearing is part of ongoing litigation that began with a suit against the fire department by the U.S. government in 2007, joined by the Vulcan Society. The plaintiffs claim that three written tests used by the FDNY to screen applicants from 1999 until 2007 discriminated against minorities. The city has denied any discrimination, but Judge Garaufis has sided with the government and the Vulcan Society. In July 2009 and again in January 2010, he ruled in United States v. City of New York, 07 cv 2067, that the FDNY had discriminated against minorities in hiring. In the earlier ruling, the judge found on a complaint brought by the U.S. Department of Justice, that the FDNY's hiring practices had disparate impact in violation of Title VII of federal civil rights laws. Judge Garaufis ordered a new test, which is in the process of being developed under a court-appointed monitor, Mary Jo White, the former Southern District U.S. attorney who is now a partner at Debevoise & Plimpton. New York City has announced that the new test will be given in January, and applicants are now registering to take it. The city, which is represented by Patricia Mills, a senior counsel in the Law Department, is opposing the plaintiffs' motion and maintains that no relief is necessary to prevent discrimination in the hiring process.
Monitor Sought
The Vulcan Society is seeking a monitor to oversee the process of conducting background checks to determine the "good character" of those who pass future exams. A statistician testified yesterday for the Vulcan Society that after the test was given in 1999, though blacks made up 6.2 percent of the applicants who passed the test, they made up 23.1 percent of the group that was disqualified based on character reviews, which Mr. Tow has overseen since 2001. The Vulcan Society also is asking Judge Garaufis to find ineffectual the FDNY's internal process for overseeing bias complaints and to give a monitor the power to resolve complaints and to order measures to strengthen the recruitment of minorities. A separate hearing will be conducted on the Vulcan Society's claims for remedial hiring and back pay. The group estimates that nearly 300 minority firefighters would have been hired but for the prior discrimination, and that they are entitled to $75 million in back pay. About 7,400 minority applicants took the 1999, 2000 and 2007 exams, which Judge Garaufis has voided. More than half of the city's population belongs to a racial or ethnic minority. However, only 9 percent of the more than 11,000 uniformed firefighters are black or Hispanic. Minorities makes up 47.4 percent of the New York Police Department as of June 30, according to NYPD statistics. During yesterday's hearing, Richard H. Levy, of Levy Ratner, the Vulcan Society's lawyer, presented the records of the background checks regarding several applicants. In two examples, applicants had been involved in incidents of domestic violence. One applicant, found to have violated an order of protection, had received a conditional discharge. Mr. Tow recommended that the applicant, who was white, be appointed. In the other, he recommended against the appointment of an Hispanic applicant who received an adjournment in contemplation of dismissal for "pushing" his wife. Two other of the incidents raised by Mr. Levy involved firefighters who had been police officers acquitted of murdering Amadou Diallo. Mr. Tow recommended the appointment of one of the officers, and his predecessor recommended the appointment of the other. Daniel Wise can be contacted at dwise@alm.com
Monday, August 1, 2011
Judicial Pay Raise Commission Focuses on Amount of Increase
Commission to Focus on Amount of Judges' Raise
The New York Law Journal by Joel Stashenko - July 29, 2011
Members of a special judicial compensation commission apparently are leaning toward recommending some kind of raise for 1,200 state judges—their first since Jan. 1, 1999—but have not reached a consensus yet on the size or timing of the hike. "I assume something will be done, but we have not had the discussion yet," William C. Thompson Jr., the chairman of the seven-member commission, said in an interview this week.
ALBANY, NY - Members of a special judicial compensation commission apparently are leaning toward recommending some kind of raise for 1,200 state judges—their first since Jan. 1, 1999—but have not reached a consensus yet on the size or timing of the hike. Former New York City Comptroller William C. Thompson Jr., the chairman of the seven-member commission, said he believes the panel members believe a pay hike is in order, but, with a month to go before its recommendations are due, have not begun to hash out the details. "I assume something will be done, but we have not had the discussion yet," Mr. Thompson said in an interview this week. "I fully understand why we are there. This vehicle has been formed to create an unbiased and apolitical look at raises for judges. But we have not had any conversations yet" on exactly how much. Mr. Thompson, who was appointed to the commission and designated as its chair by Governor Andrew M. Cuomo, said he does not believe "anybody has made up their minds" about specifics. That perception is shared by three observers interviewed by the Law Journal familiar with the commission's work—two in the Judiciary and one in the Legislature. Pay raise supporters, including the court system and bar groups, have pushed for an immediate large increase, in the range of around 40 percent to more than 60 percent, to make up for the eroding effects of inflation on judges' pay. Supreme Court justices now earn $136,700 a year.
Another Cuomo appointee William Mulrow, a senior managing director at Blackstone, said the question is not whether the group will recommend some raise but how big it will be. "I think everyone on the commission and anyone who has anything to do with the Judiciary sees that need [for higher pay] and believes that need has to be addressed," Mr. Mulrow said. "I don't think there is any question of that." But although there is widespread agreement that judges deserve a raise, testimony before the commission last week by Robert Megna, Mr. Cuomo's budget director, raised the issue of just how much the state could afford. After briefing the commission on the state's continued budget woes and the governor's efforts to deal with continuing "fiscal challenges," Mr. Megna urged the group to exercise caution in crafting its recommendations. "In addition to the current fiscal constraints, the State will continue to face budget deficits in the foreseeable future and any increase, even a modest one, will only serve to widen the gap," the budget director warned in written testimony submitted to the commission. Moreover, he suggested that any increase must be rational and fair. "Unfortunately," he wrote, "certain proposals that recommend significant salary increases would skew the entire system. In essence, such proposals—proposals that would increase judicial salaries well above most public officials—cannot be rationalized. Public service is a noble profession and we must be mindful that it's not always about how much a person makes. Thus, it is imperative that any salary increase can be justified in the current system." Mr. Thompson said he believes Mr. Cuomo is "committed" to seeing that judges get a raise. "Any entity that doesn't have a raise for over 12 years, I think the governor would have to agree that is something that needs to be done," Mr. Thompson said.
In addition to Messrs. Thompson and Mulrow, Mr. Cuomo's other appointee is Richard B. Cotton, general counsel of NBC-Universal. Chief Judge Jonathan Lippman has two appointees: Robert B. Fiske Jr. of Davis Polk & Wardwell and Kathryn Wylde, president of Partnership for New York City. Senate Republican Majority Leader Dean Skelos named his colleague at the Uniondale firm of Ruskin Moscou Faltischek, managing partner Mark Mulholland, as his representative. Assembly Speaker Sheldon Silver selected one-time Assembly Majority Leader James Tallon Jr. Observers of the commission speculate that Mr. Tallon's stance could be crucial if the governor's appointments back only a modest raise while Judge Lippman's appointees and Mr. Mulholland take a more generous view. "Jim Tallon could be the swing vote deciding between judges getting a lot of up-front money and smaller, more incremental raises," one of the observers said. Mr. Silver for years in the mid to late 2000s said judges deserved raises, but no pay bill passed in his house until the one creating the judicial pay commission late last year (NYLJ, Dec. 2, 2010). He has not indicated whether he backs large up-front hikes or more incremental increases. "We have an independent commission that is examining that issue," Mr. Silver said through a spokesman but decline further comment. Mr. Tallon has said little about the size or the configuration of a raise. He opined during a July 11 meeting that the panel should look at the "totality" of the state's compensation for other public employees in leadership and executive positions when formulating its decision for judges. Mr. Tallon did not return calls for comment.
Business Community
Ms. Wylde helped organize a show of support by business leaders for a judicial pay raise in 2007, saying New York's role as a worldwide center of business and finance depended on a top-notch judiciary, especially the judges assigned to commercial parts. She said this week that she found it compelling that between 2007 and 2009, only 18 percent of the people entering the judiciary were from the private sector. "Particularly for the business community, having a judiciary with business experience is very important," she said. But Ms. Wylde said there is a built-in tension in the views of her constituency. "I do represent the pulse of the business community," she said, "but the business community is equally concerned about supporting fiscal discipline on the state's part" as it is about having judges receive fair compensation. Ms. Wylde said she is "sympathetic to the compensation situation" of judges but has not made up her mind about the raises she could support. Mr. Fiske, likewise, said this week he is not yet ready to publicly reveal his recommendations. "I'd rather my colleagues hear it out of my mouth and not read it somewhere," he said. Mr. Mulholland left no doubt where he stands generally on the issue. "I have felt from the beginning of the process that a substantial and immediate raise is necessary and appropriate," he said. Mr. Skelos, the Senate majority leader who appointed Mr. Mulholland, has a strong familial link to the Judiciary. The senator's brother, Peter B. Skelos, has been on the state bench since 1995 and on the Appellate Division, Second Department, since 2004. Mr. Mulholland noted that Senate Republicans have been advocates for judicial pay increases dating back at least four years. Nevertheless, he said that making up his mind about precise compensation levels this early in the commission's work "would be unfair to the process" and that he is reviewing the testimony before the commission and other information about judicial compensation. Other members also insisted they are keeping an open mind and will come to conclusions independently of the views of those who appointed them. "The understanding is that every commissioner has to use their best judgment regardless of who appointed them," Ms. Wylde said.
No Pressure Expected
Both Messrs. Thompson and Mulrow said they are undecided about salary levels and that they have not gotten, and do not expect to get, any pressure from Mr. Cuomo or other officials about what positions to take. Mr. Mulholland said that while his sympathies lie with judges and the dry spell in pay hikes that they have had to endure, he is not on the commission to do Mr. Skelos' bidding. "My obligation is to do a conscientious, honest and responsible job," Mr. Mulholland said. "There are no obligations. There has been no number given to me, no direction given to me." Mr. Cotton did not return calls for comment. Mr. Thompson, who ran unsuccessfully for mayor and plans to run again in 2013, said he has amply demonstrated his independence in his previous politically charged roles as comptroller and president of the New York City Board of Education. "I don't think the governor asked me to be a member of this commission to be a rubber stamp for anybody," Mr. Thompson said. He said he knows the atmosphere surrounding the pay debate could heat up between now and Aug. 28, when the panel's recommendations are due. "I think any time you are talking about raises for anybody in any group, that it has the potential to be a little bit contentious," Mr. Thompson said. "Any discussion of raises in the current economic times, or in good times for that matter, it's a hard conversation to have." At the public hearing last week, for instance, the anti-raise Center for Judicial Accountability through its head Elena Sassower called on Mr. Thompson to recuse himself from the commission because his father, William Thompson Sr., was a long-time Supreme Court and Appellate Division justice. The younger Mr. Thompson refused. He explained later that his father, now 86, has been off the bench since his mandatory retirement at age 76 and would not profit in any way by a salary adjustment. Ms. Sassower and her allies insist that no raise should be adopted until procedures are put in place to root out what they claim is widespread corruption in the Judiciary.
Earliest Effective Date
If the Legislature does not act to block the commission's suggestions, they would automatically go into effect, at the earliest on April 1, 2012, the start of the state's next fiscal year. Mr. Thompson said the commission would meet within the next two weeks to begin discussing pay levels. He said there likely would be another meeting to adopt its recommendations. Both sessions would be in Manhattan and open to the public. The commission has no full-time staff. A non-attorney assistant within Mr. Cuomo's counsel's office has been coordinating meetings and compiling and distributing the information and comments it has received. A simple four-member majority is needed to adopt the formal recommendations. Mr. Thompson said individuals and groups are free to continue to file pertinent information or comment about a judicial salary adjustment to the commission's website, www.judicialcompensation.ny.gov. The commission will go out of existence once it makes its recommendations. Its members are not being paid, except for expenses while on official business. Another commission will be appointed in 2016 to recommend pay adjustments for the four state fiscal years beginning with 2017-18. |Joel Stashenko can be contacted at jstashenko@alm.com
The New York Law Journal by Joel Stashenko - July 29, 2011
Members of a special judicial compensation commission apparently are leaning toward recommending some kind of raise for 1,200 state judges—their first since Jan. 1, 1999—but have not reached a consensus yet on the size or timing of the hike. "I assume something will be done, but we have not had the discussion yet," William C. Thompson Jr., the chairman of the seven-member commission, said in an interview this week.
ALBANY, NY - Members of a special judicial compensation commission apparently are leaning toward recommending some kind of raise for 1,200 state judges—their first since Jan. 1, 1999—but have not reached a consensus yet on the size or timing of the hike. Former New York City Comptroller William C. Thompson Jr., the chairman of the seven-member commission, said he believes the panel members believe a pay hike is in order, but, with a month to go before its recommendations are due, have not begun to hash out the details. "I assume something will be done, but we have not had the discussion yet," Mr. Thompson said in an interview this week. "I fully understand why we are there. This vehicle has been formed to create an unbiased and apolitical look at raises for judges. But we have not had any conversations yet" on exactly how much. Mr. Thompson, who was appointed to the commission and designated as its chair by Governor Andrew M. Cuomo, said he does not believe "anybody has made up their minds" about specifics. That perception is shared by three observers interviewed by the Law Journal familiar with the commission's work—two in the Judiciary and one in the Legislature. Pay raise supporters, including the court system and bar groups, have pushed for an immediate large increase, in the range of around 40 percent to more than 60 percent, to make up for the eroding effects of inflation on judges' pay. Supreme Court justices now earn $136,700 a year.
Another Cuomo appointee William Mulrow, a senior managing director at Blackstone, said the question is not whether the group will recommend some raise but how big it will be. "I think everyone on the commission and anyone who has anything to do with the Judiciary sees that need [for higher pay] and believes that need has to be addressed," Mr. Mulrow said. "I don't think there is any question of that." But although there is widespread agreement that judges deserve a raise, testimony before the commission last week by Robert Megna, Mr. Cuomo's budget director, raised the issue of just how much the state could afford. After briefing the commission on the state's continued budget woes and the governor's efforts to deal with continuing "fiscal challenges," Mr. Megna urged the group to exercise caution in crafting its recommendations. "In addition to the current fiscal constraints, the State will continue to face budget deficits in the foreseeable future and any increase, even a modest one, will only serve to widen the gap," the budget director warned in written testimony submitted to the commission. Moreover, he suggested that any increase must be rational and fair. "Unfortunately," he wrote, "certain proposals that recommend significant salary increases would skew the entire system. In essence, such proposals—proposals that would increase judicial salaries well above most public officials—cannot be rationalized. Public service is a noble profession and we must be mindful that it's not always about how much a person makes. Thus, it is imperative that any salary increase can be justified in the current system." Mr. Thompson said he believes Mr. Cuomo is "committed" to seeing that judges get a raise. "Any entity that doesn't have a raise for over 12 years, I think the governor would have to agree that is something that needs to be done," Mr. Thompson said.
In addition to Messrs. Thompson and Mulrow, Mr. Cuomo's other appointee is Richard B. Cotton, general counsel of NBC-Universal. Chief Judge Jonathan Lippman has two appointees: Robert B. Fiske Jr. of Davis Polk & Wardwell and Kathryn Wylde, president of Partnership for New York City. Senate Republican Majority Leader Dean Skelos named his colleague at the Uniondale firm of Ruskin Moscou Faltischek, managing partner Mark Mulholland, as his representative. Assembly Speaker Sheldon Silver selected one-time Assembly Majority Leader James Tallon Jr. Observers of the commission speculate that Mr. Tallon's stance could be crucial if the governor's appointments back only a modest raise while Judge Lippman's appointees and Mr. Mulholland take a more generous view. "Jim Tallon could be the swing vote deciding between judges getting a lot of up-front money and smaller, more incremental raises," one of the observers said. Mr. Silver for years in the mid to late 2000s said judges deserved raises, but no pay bill passed in his house until the one creating the judicial pay commission late last year (NYLJ, Dec. 2, 2010). He has not indicated whether he backs large up-front hikes or more incremental increases. "We have an independent commission that is examining that issue," Mr. Silver said through a spokesman but decline further comment. Mr. Tallon has said little about the size or the configuration of a raise. He opined during a July 11 meeting that the panel should look at the "totality" of the state's compensation for other public employees in leadership and executive positions when formulating its decision for judges. Mr. Tallon did not return calls for comment.
Business Community
Ms. Wylde helped organize a show of support by business leaders for a judicial pay raise in 2007, saying New York's role as a worldwide center of business and finance depended on a top-notch judiciary, especially the judges assigned to commercial parts. She said this week that she found it compelling that between 2007 and 2009, only 18 percent of the people entering the judiciary were from the private sector. "Particularly for the business community, having a judiciary with business experience is very important," she said. But Ms. Wylde said there is a built-in tension in the views of her constituency. "I do represent the pulse of the business community," she said, "but the business community is equally concerned about supporting fiscal discipline on the state's part" as it is about having judges receive fair compensation. Ms. Wylde said she is "sympathetic to the compensation situation" of judges but has not made up her mind about the raises she could support. Mr. Fiske, likewise, said this week he is not yet ready to publicly reveal his recommendations. "I'd rather my colleagues hear it out of my mouth and not read it somewhere," he said. Mr. Mulholland left no doubt where he stands generally on the issue. "I have felt from the beginning of the process that a substantial and immediate raise is necessary and appropriate," he said. Mr. Skelos, the Senate majority leader who appointed Mr. Mulholland, has a strong familial link to the Judiciary. The senator's brother, Peter B. Skelos, has been on the state bench since 1995 and on the Appellate Division, Second Department, since 2004. Mr. Mulholland noted that Senate Republicans have been advocates for judicial pay increases dating back at least four years. Nevertheless, he said that making up his mind about precise compensation levels this early in the commission's work "would be unfair to the process" and that he is reviewing the testimony before the commission and other information about judicial compensation. Other members also insisted they are keeping an open mind and will come to conclusions independently of the views of those who appointed them. "The understanding is that every commissioner has to use their best judgment regardless of who appointed them," Ms. Wylde said.
No Pressure Expected
Both Messrs. Thompson and Mulrow said they are undecided about salary levels and that they have not gotten, and do not expect to get, any pressure from Mr. Cuomo or other officials about what positions to take. Mr. Mulholland said that while his sympathies lie with judges and the dry spell in pay hikes that they have had to endure, he is not on the commission to do Mr. Skelos' bidding. "My obligation is to do a conscientious, honest and responsible job," Mr. Mulholland said. "There are no obligations. There has been no number given to me, no direction given to me." Mr. Cotton did not return calls for comment. Mr. Thompson, who ran unsuccessfully for mayor and plans to run again in 2013, said he has amply demonstrated his independence in his previous politically charged roles as comptroller and president of the New York City Board of Education. "I don't think the governor asked me to be a member of this commission to be a rubber stamp for anybody," Mr. Thompson said. He said he knows the atmosphere surrounding the pay debate could heat up between now and Aug. 28, when the panel's recommendations are due. "I think any time you are talking about raises for anybody in any group, that it has the potential to be a little bit contentious," Mr. Thompson said. "Any discussion of raises in the current economic times, or in good times for that matter, it's a hard conversation to have." At the public hearing last week, for instance, the anti-raise Center for Judicial Accountability through its head Elena Sassower called on Mr. Thompson to recuse himself from the commission because his father, William Thompson Sr., was a long-time Supreme Court and Appellate Division justice. The younger Mr. Thompson refused. He explained later that his father, now 86, has been off the bench since his mandatory retirement at age 76 and would not profit in any way by a salary adjustment. Ms. Sassower and her allies insist that no raise should be adopted until procedures are put in place to root out what they claim is widespread corruption in the Judiciary.
Earliest Effective Date
If the Legislature does not act to block the commission's suggestions, they would automatically go into effect, at the earliest on April 1, 2012, the start of the state's next fiscal year. Mr. Thompson said the commission would meet within the next two weeks to begin discussing pay levels. He said there likely would be another meeting to adopt its recommendations. Both sessions would be in Manhattan and open to the public. The commission has no full-time staff. A non-attorney assistant within Mr. Cuomo's counsel's office has been coordinating meetings and compiling and distributing the information and comments it has received. A simple four-member majority is needed to adopt the formal recommendations. Mr. Thompson said individuals and groups are free to continue to file pertinent information or comment about a judicial salary adjustment to the commission's website, www.judicialcompensation.ny.gov. The commission will go out of existence once it makes its recommendations. Its members are not being paid, except for expenses while on official business. Another commission will be appointed in 2016 to recommend pay adjustments for the four state fiscal years beginning with 2017-18. |Joel Stashenko can be contacted at jstashenko@alm.com
Tuesday, July 26, 2011
Ex-Senator's Criticism of Counsel in Effort to Upset Plea Rebuffed
Ex-Senator's Criticism of Counsel in Effort to Upset Plea Rebuffed
The New York Law Journal by Joel Stashenko - July 25, 2011
The U.S. Court of Appeals for the Second Circuit upheld the conviction of Efraim Gonzalez Jr. for using public money for personal purposes, rejecting Mr. Gonzalez's contention that he was not properly apprised by Bronx defense attorney Murray Richman of the ramifications of the guilty plea he entered in 2009. An appellate court has rebuffed a former state senator's complaint that he was not allowed to withdraw a guilty plea to corruption charges he allegedly made under pressure from a well-known defense attorney who was "incapable, unwilling and unprepared" for trial. The U.S. Court of Appeals for the Second Circuit upheld the conviction of Efraim Gonzalez Jr. for using public money for personal purposes, although the panel asked a district court judge to re-examine his calculation of $122,775 for restitution in the case. The Second Circuit panel rejected Mr. Gonzalez's contention that he was not properly apprised by Bronx defense attorney Murray Richman of the ramifications of the guilty plea he entered in 2009. Moreover, the unanimous panel concluded in United States v. Gonzalez, 10-2202-cr, that Southern District Judge William H. Pauley III had not attempted to pressure Mr. Gonzalez into pleading guilty because he was in a hurry to conclude the case. Nor had he erred in refusing to let Mr. Gonzalez withdraw his plea, the court said. "Now, Mr. Gonzalez, your attorney has informed me that you wish to enter a plea of guilty," the record quoted Judge Pauley asking as the legislator entered his plea. "Do you wish to enter a plea of guilty?" "Yes, your honor," the ruling quoted Mr. Gonzalez as responding. "Have you had a full opportunity to discuss your case with your attorney and to discuss the consequences of entering a plea of guilty?" Judge Pauley pressed. "Yes, your honor." "Are you satisfied with your attorney, Mr. Richman, and his representation of you in connection with this matter?" "Yes, your honor." The circuit said that Mr. Richman had "in no way indicated that he was not prepared to go to trial." Nor could the attorney be faulted for his pessimistic assessment of Mr. Gonazalez's chances at trial. Indeed, the circuit said that he was obligated to share that pessimistic assessment with his client. A transcript of Mr. Richman's remarks at a hearing before the plea "makes clear that the conflict between Gonzalez and Richman centered simply on Gonzalez's view that he was innocent and Richman's view that he would be proven guilty, and that Richman would refuse to proceed in a manner that was unethical," Judge Amalya Kearse wrote for a panel that also included Judges Roger J. Miner and Denny Chin. The panel said Mr. Gonzalez's criticisms of Mr. Richman were not supported by the record. It noted that Judge Pauley had described Mr. Richman as a "highly experienced and well qualified lawyer." Mr. Richman said in an interview on Friday it is "difficult to understand" how Mr. Gonzalez could argue that he did not understand the guilty plea he entered. "He was totally cognizant," Mr. Richman said. "We went over it several times. You don't take a plea lightly, especially with a public figure." Mr. Richman said he still considers Mr. Gonzalez his friend. "But I have maintained that we often do the impossible for the ungrateful," Mr. Richman said in an interview. Mr. Gonzalez, a former Democratic state senator from the Bronx from 1990-2008, pleaded guilty to mail fraud, conspiracy to commit mail fraud, wire fraud and other charges in connection with what federal prosecutors said was a scheme to use public grants and gift money to fund the senator's private spending. The scheme used organizations like the West Bronx Neighborhood Association, the United Latin American Foundation and Pathways for Youth Inc. to attract public and private funding. Some of their funding went into Mr. Gonzalez's accounts, according to prosecutors, including more than $400,000 from Pathways alone. The court said the money was used for personal bills for the Gonzalez family, including a membership in a vacation club in the Dominican Republic, the rental of a luxury apartment in the Dominican Republic, his rental of a summer residence in upstate New York, college tuition for his daughter and his purchase of personal items, including "premium" New York Yankees' tickets. Similarly, some money committed to the other groups also ended up in the Gonzalez's possession, the court said. Mr. Gonzalez was sentenced to 84 months in prison, less than the guidelines range of 108 to 135 months, and two years of post-release supervision. He also was ordered to pay $122,775 in restitution to contributors to the West Bronx organization. The circuit affirmed the prison sentence but questioned whether the government's claims of contributions were accurate. "Gonzalez has argued that an order granting persons on the West Bronx donor lists restitution in the full amount of the checks they sent in [in] connection with a gala birthday party may well grant them restitution in excess of their losses," Judge Kearse said. She noted that "it may well be that some of the listed donors made contributions and received nothing in return." Valid questions have been raised about the "accuracy and ...qualifications of the donors' losses," the court held. Southern District Assistant U.S. Attorney Michael A. Levy argued for the prosecution. Lance Croffort-Suede and Patrick C. Askby of Linklaters represented Mr. Gonzalez. Joel Stashenko can be reached at jstashenko@alm.com.
The New York Law Journal by Joel Stashenko - July 25, 2011
The U.S. Court of Appeals for the Second Circuit upheld the conviction of Efraim Gonzalez Jr. for using public money for personal purposes, rejecting Mr. Gonzalez's contention that he was not properly apprised by Bronx defense attorney Murray Richman of the ramifications of the guilty plea he entered in 2009. An appellate court has rebuffed a former state senator's complaint that he was not allowed to withdraw a guilty plea to corruption charges he allegedly made under pressure from a well-known defense attorney who was "incapable, unwilling and unprepared" for trial. The U.S. Court of Appeals for the Second Circuit upheld the conviction of Efraim Gonzalez Jr. for using public money for personal purposes, although the panel asked a district court judge to re-examine his calculation of $122,775 for restitution in the case. The Second Circuit panel rejected Mr. Gonzalez's contention that he was not properly apprised by Bronx defense attorney Murray Richman of the ramifications of the guilty plea he entered in 2009. Moreover, the unanimous panel concluded in United States v. Gonzalez, 10-2202-cr, that Southern District Judge William H. Pauley III had not attempted to pressure Mr. Gonzalez into pleading guilty because he was in a hurry to conclude the case. Nor had he erred in refusing to let Mr. Gonzalez withdraw his plea, the court said. "Now, Mr. Gonzalez, your attorney has informed me that you wish to enter a plea of guilty," the record quoted Judge Pauley asking as the legislator entered his plea. "Do you wish to enter a plea of guilty?" "Yes, your honor," the ruling quoted Mr. Gonzalez as responding. "Have you had a full opportunity to discuss your case with your attorney and to discuss the consequences of entering a plea of guilty?" Judge Pauley pressed. "Yes, your honor." "Are you satisfied with your attorney, Mr. Richman, and his representation of you in connection with this matter?" "Yes, your honor." The circuit said that Mr. Richman had "in no way indicated that he was not prepared to go to trial." Nor could the attorney be faulted for his pessimistic assessment of Mr. Gonazalez's chances at trial. Indeed, the circuit said that he was obligated to share that pessimistic assessment with his client. A transcript of Mr. Richman's remarks at a hearing before the plea "makes clear that the conflict between Gonzalez and Richman centered simply on Gonzalez's view that he was innocent and Richman's view that he would be proven guilty, and that Richman would refuse to proceed in a manner that was unethical," Judge Amalya Kearse wrote for a panel that also included Judges Roger J. Miner and Denny Chin. The panel said Mr. Gonzalez's criticisms of Mr. Richman were not supported by the record. It noted that Judge Pauley had described Mr. Richman as a "highly experienced and well qualified lawyer." Mr. Richman said in an interview on Friday it is "difficult to understand" how Mr. Gonzalez could argue that he did not understand the guilty plea he entered. "He was totally cognizant," Mr. Richman said. "We went over it several times. You don't take a plea lightly, especially with a public figure." Mr. Richman said he still considers Mr. Gonzalez his friend. "But I have maintained that we often do the impossible for the ungrateful," Mr. Richman said in an interview. Mr. Gonzalez, a former Democratic state senator from the Bronx from 1990-2008, pleaded guilty to mail fraud, conspiracy to commit mail fraud, wire fraud and other charges in connection with what federal prosecutors said was a scheme to use public grants and gift money to fund the senator's private spending. The scheme used organizations like the West Bronx Neighborhood Association, the United Latin American Foundation and Pathways for Youth Inc. to attract public and private funding. Some of their funding went into Mr. Gonzalez's accounts, according to prosecutors, including more than $400,000 from Pathways alone. The court said the money was used for personal bills for the Gonzalez family, including a membership in a vacation club in the Dominican Republic, the rental of a luxury apartment in the Dominican Republic, his rental of a summer residence in upstate New York, college tuition for his daughter and his purchase of personal items, including "premium" New York Yankees' tickets. Similarly, some money committed to the other groups also ended up in the Gonzalez's possession, the court said. Mr. Gonzalez was sentenced to 84 months in prison, less than the guidelines range of 108 to 135 months, and two years of post-release supervision. He also was ordered to pay $122,775 in restitution to contributors to the West Bronx organization. The circuit affirmed the prison sentence but questioned whether the government's claims of contributions were accurate. "Gonzalez has argued that an order granting persons on the West Bronx donor lists restitution in the full amount of the checks they sent in [in] connection with a gala birthday party may well grant them restitution in excess of their losses," Judge Kearse said. She noted that "it may well be that some of the listed donors made contributions and received nothing in return." Valid questions have been raised about the "accuracy and ...qualifications of the donors' losses," the court held. Southern District Assistant U.S. Attorney Michael A. Levy argued for the prosecution. Lance Croffort-Suede and Patrick C. Askby of Linklaters represented Mr. Gonzalez. Joel Stashenko can be reached at jstashenko@alm.com.
Monday, July 25, 2011
Still Hoping for Justice
This Is Considered Punishment?
The New York Times by Joe Nocera - July 25, 2011
OP-ED
Last Wednesday, nearly lost in the furor over Rupert-gate and the debt ceiling crisis, came the surprising news that the Federal Reserve has issued a cease-and-desist order against a Too-Big-to-Fail bank. The bank was Wells Fargo, which was also fined $85 million and ordered to compensate customers it had unfairly — indeed, illegally — taken advantage of during the subprime bubble. What made the news surprising, of course, was that the Federal Reserve has rarely, if ever, taken action against a bank for making predatory loans. Alan Greenspan, the former Fed chairman, didn’t believe in regulation and turned a blind eye to subprime abuses. His successor, Ben Bernanke, is not the ideologue that Greenspan is, but, as an institution, the Fed prefers to coddle banks rather than punish them. That the Fed would crack down on Wells Fargo would seem to suggest a long-overdue awakening. Yet, for anyone still hoping for justice in the wake of the financial crisis, the news was hardly encouraging. First, the Fed did not force Wells Fargo to admit guilt — and even let the company issue a press release blaming its wrongdoing on a “relatively small group.” The $85 million fine was a joke; in just the last quarter, Wells Fargo’s revenues exceeded $20 billion. And compensating borrowers isn’t going to hurt much either. By my calculation, it won’t top $20 million. Most upsetting of all, the settlement raises the question that just won’t go away: Why can’t the federal government prosecute financial wrongdoers? I realize that the Federal Reserve can’t bring a criminal case (and, to be fair, there are statutory limits on how big a fine it can levy). But the Justice Department certainly can. Yet ever since it lost an early case against two Bear Stearns fund managers in 2009, it has gone after only the smallest of small fry: individual borrowers, brokers and appraisers who lack the means to do much more than plead guilty. In March, for instance, I wrote about the sad case of Charlie Engle, the ultra-marathoner, who was convicted of lying on a liar loan — that is, exaggerating his income on a subprime mortgage application — even though the evidence against him was thin. Prosecuted by Neil H. MacBride, the U.S. attorney for the Eastern District of Virginia, Engle was sentenced to 21 months in prison. Now compare Engle’s alleged crime to the case the Federal Reserve brought against Wells Fargo Financial, which, until it was shut down last summer, was the subprime subsidiary of Wells Fargo, based in Des Moines. There were several allegations, but the one that caught my eye was that Wells employees “falsified income information on mortgage applications.” In other words, they lied on liar loans! The only difference is that the lying was done by a group of Wells Fargo brokers rather than by some poor sap like Charlie Engle. What’s more, this practice appears to have been quite widespread — “fostered,” as the Fed puts it, “by Wells Fargo Financial’s incentive compensation and sales quota programs.” Matthew R. Lee, the executive director of Inner City Press/Community on the Move and Fair Finance Watch, spent years bringing Wells’ subprime abuses to the attention of the Federal Reserve. “The way the compensation was designed ensured that abuses would take place,” he says. “It was a predatory system.” These are exactly the kind of loans — built on illegal practices — that gave us the financial crisis. Brokers working for subprime mortgage companies routinely doctored incomes to hand out subprime loans they knew the borrowers could never repay — and then, after taking their fat fees, shoveled the loans to Wall Street, which bundled them into subprime securities. This was the kindling that lit the inferno of September 2008. So again, I ask: Why is there no criminal investigation into what went on at Wells Fargo Financial? The person I called for answers was the press secretary to Nicholas A. Klinefeldt, the U.S. attorney for the Southern District of Iowa, which includes Des Moines. A glance at Klinefeldt’s 2011 press releases suggests that he takes the MacBride approach to mortgage fraud: only the little guy has anything to fear. Needless to say, his press secretary knew nothing about the Wells Fargo case and even questioned whether the Southern District of Iowa had jurisdiction. The next day, he referred me to a Justice Department spokeswoman. I wrote her an e-mail laying out my question as plainly as I could: “I am trying to understand why the mortgage brokers who work at a major bank are getting a pass when they have lied on liar loans,” I said. That was Friday. On Monday, at 8:30 p.m., a half-hour from press time, the Justice Department sent me a statement claiming that in 2010 “the number of defendants in mortgage fraud cases more than doubled” from 2009. Not one of those defendants ever worked for Wells Fargo Financial.
The New York Times by Joe Nocera - July 25, 2011
OP-ED
Last Wednesday, nearly lost in the furor over Rupert-gate and the debt ceiling crisis, came the surprising news that the Federal Reserve has issued a cease-and-desist order against a Too-Big-to-Fail bank. The bank was Wells Fargo, which was also fined $85 million and ordered to compensate customers it had unfairly — indeed, illegally — taken advantage of during the subprime bubble. What made the news surprising, of course, was that the Federal Reserve has rarely, if ever, taken action against a bank for making predatory loans. Alan Greenspan, the former Fed chairman, didn’t believe in regulation and turned a blind eye to subprime abuses. His successor, Ben Bernanke, is not the ideologue that Greenspan is, but, as an institution, the Fed prefers to coddle banks rather than punish them. That the Fed would crack down on Wells Fargo would seem to suggest a long-overdue awakening. Yet, for anyone still hoping for justice in the wake of the financial crisis, the news was hardly encouraging. First, the Fed did not force Wells Fargo to admit guilt — and even let the company issue a press release blaming its wrongdoing on a “relatively small group.” The $85 million fine was a joke; in just the last quarter, Wells Fargo’s revenues exceeded $20 billion. And compensating borrowers isn’t going to hurt much either. By my calculation, it won’t top $20 million. Most upsetting of all, the settlement raises the question that just won’t go away: Why can’t the federal government prosecute financial wrongdoers? I realize that the Federal Reserve can’t bring a criminal case (and, to be fair, there are statutory limits on how big a fine it can levy). But the Justice Department certainly can. Yet ever since it lost an early case against two Bear Stearns fund managers in 2009, it has gone after only the smallest of small fry: individual borrowers, brokers and appraisers who lack the means to do much more than plead guilty. In March, for instance, I wrote about the sad case of Charlie Engle, the ultra-marathoner, who was convicted of lying on a liar loan — that is, exaggerating his income on a subprime mortgage application — even though the evidence against him was thin. Prosecuted by Neil H. MacBride, the U.S. attorney for the Eastern District of Virginia, Engle was sentenced to 21 months in prison. Now compare Engle’s alleged crime to the case the Federal Reserve brought against Wells Fargo Financial, which, until it was shut down last summer, was the subprime subsidiary of Wells Fargo, based in Des Moines. There were several allegations, but the one that caught my eye was that Wells employees “falsified income information on mortgage applications.” In other words, they lied on liar loans! The only difference is that the lying was done by a group of Wells Fargo brokers rather than by some poor sap like Charlie Engle. What’s more, this practice appears to have been quite widespread — “fostered,” as the Fed puts it, “by Wells Fargo Financial’s incentive compensation and sales quota programs.” Matthew R. Lee, the executive director of Inner City Press/Community on the Move and Fair Finance Watch, spent years bringing Wells’ subprime abuses to the attention of the Federal Reserve. “The way the compensation was designed ensured that abuses would take place,” he says. “It was a predatory system.” These are exactly the kind of loans — built on illegal practices — that gave us the financial crisis. Brokers working for subprime mortgage companies routinely doctored incomes to hand out subprime loans they knew the borrowers could never repay — and then, after taking their fat fees, shoveled the loans to Wall Street, which bundled them into subprime securities. This was the kindling that lit the inferno of September 2008. So again, I ask: Why is there no criminal investigation into what went on at Wells Fargo Financial? The person I called for answers was the press secretary to Nicholas A. Klinefeldt, the U.S. attorney for the Southern District of Iowa, which includes Des Moines. A glance at Klinefeldt’s 2011 press releases suggests that he takes the MacBride approach to mortgage fraud: only the little guy has anything to fear. Needless to say, his press secretary knew nothing about the Wells Fargo case and even questioned whether the Southern District of Iowa had jurisdiction. The next day, he referred me to a Justice Department spokeswoman. I wrote her an e-mail laying out my question as plainly as I could: “I am trying to understand why the mortgage brokers who work at a major bank are getting a pass when they have lied on liar loans,” I said. That was Friday. On Monday, at 8:30 p.m., a half-hour from press time, the Justice Department sent me a statement claiming that in 2010 “the number of defendants in mortgage fraud cases more than doubled” from 2009. Not one of those defendants ever worked for Wells Fargo Financial.
Friday, July 22, 2011
Judicial Pay Commission Boss Says Judges Made Strong Case for Raise
Panel's Chair Says Judges Made Strong Case for Raise
The New York Law Journal by Joel Stashenko - July 22, 2011
The chairman of the judicial pay commission said yesterday that the state's judges have raised valid concerns about the personal toll of having gone more than 12 years without raises, and about the threats to the quality of state courts that the pay drought has created. William C. Thompson Jr., the former New York City comptroller, said several judges who spoke at the hearing of the Commission on Judicial Compensation (NYLJ, July 21) on Wednesday "passionately" expressed their desire to continue in public service on the bench in spite of going since 1999 without salary increases. "But at the same time, they want to...sustain a middle-class lifestyle," Mr. Thompson told the "Capitol Pressroom," a government and political interview show broadcast on several public radio stations in the state. "That only seems fair." Mr. Thompson also said that turnover in the judiciary has increased from about 5 percent to about 10 percent, according to information gathered by the commission and that New York citizens should be concerned whenever experienced judges are leaving the bench, or talented lawyers do not seek judicial posts because of the pay situation. "The average citizen should be concerned," Mr. Thompson said. "You want to make sure you have the best and the brightest, the strongest judiciary possible." Governor Andrew M. Cuomo appointed Mr. Thompson to head the seven member commission, which has until late August to recommend pay adjustments for judges through March 31, 2016. The proposal will have the force of law, unless the Legislature seeks to prohibit the increases. Mr. Thompson noted the gloomy assessment yesterday of the state's finances by state Budget Director Robert Megna and of the state's ability to afford pay raises starting on April 1, 2012. But Mr. Thompson said Mr. Megna was doing his job by providing his analysis of the budget and that the state's ability to pay for salary hikes must be one factor the commission takes into consideration. "I think the budget director laid out the fiscal condition in the state and how difficult things are now here," Mr. Thompson said. "We have to factor all of that in as we make decisions on the level of compensation and the state's fiscal situation is one of the things that we have to factor in, definitely." Mr. Thompson said yesterday he believes Mr. Cuomo is "committed" to a judicial pay raise. "I think Governor Cuomo is committed to this," Mr. Thompson said.
The New York Law Journal by Joel Stashenko - July 22, 2011
The chairman of the judicial pay commission said yesterday that the state's judges have raised valid concerns about the personal toll of having gone more than 12 years without raises, and about the threats to the quality of state courts that the pay drought has created. William C. Thompson Jr., the former New York City comptroller, said several judges who spoke at the hearing of the Commission on Judicial Compensation (NYLJ, July 21) on Wednesday "passionately" expressed their desire to continue in public service on the bench in spite of going since 1999 without salary increases. "But at the same time, they want to...sustain a middle-class lifestyle," Mr. Thompson told the "Capitol Pressroom," a government and political interview show broadcast on several public radio stations in the state. "That only seems fair." Mr. Thompson also said that turnover in the judiciary has increased from about 5 percent to about 10 percent, according to information gathered by the commission and that New York citizens should be concerned whenever experienced judges are leaving the bench, or talented lawyers do not seek judicial posts because of the pay situation. "The average citizen should be concerned," Mr. Thompson said. "You want to make sure you have the best and the brightest, the strongest judiciary possible." Governor Andrew M. Cuomo appointed Mr. Thompson to head the seven member commission, which has until late August to recommend pay adjustments for judges through March 31, 2016. The proposal will have the force of law, unless the Legislature seeks to prohibit the increases. Mr. Thompson noted the gloomy assessment yesterday of the state's finances by state Budget Director Robert Megna and of the state's ability to afford pay raises starting on April 1, 2012. But Mr. Thompson said Mr. Megna was doing his job by providing his analysis of the budget and that the state's ability to pay for salary hikes must be one factor the commission takes into consideration. "I think the budget director laid out the fiscal condition in the state and how difficult things are now here," Mr. Thompson said. "We have to factor all of that in as we make decisions on the level of compensation and the state's fiscal situation is one of the things that we have to factor in, definitely." Mr. Thompson said yesterday he believes Mr. Cuomo is "committed" to a judicial pay raise. "I think Governor Cuomo is committed to this," Mr. Thompson said.
Thursday, July 21, 2011
Cuomo Aide: Time Is Not Right to Raise Judges' Pay
Cuomo Aide: Time Is Not Right to Raise Judges' Pay
The New York Law Journal by Joel Stashenko - July 21, 2011
Although virtually all of the 33 speakers at yesterday's hearing advocated for an immediate and large pay raise for the state's 1,200 judges, Governor Cuomo's top budget adviser said the state cannot afford it, citing continuing budget shortfalls and the state's attempt to negotiate concessions with its other employees.
ALBANY, NY - Governor Andrew M. Cuomo's top budget adviser said yesterday that New York state cannot afford raises for judges in the short term. "I think the issue as we see it right now…is that the spending is not affordable," Robert Megna told the seven members of a judicial compensation commission established to consider whether state judges should get their first raises since Jan. 1, 1999. Mr. Megna was one of 33 speakers at the commission's first and only hearing. Virtually all of them advocated for an immediate and large pay raise for the state's 1,200 judges. But Mr. Megna cited the state's continuing budget shortfalls and its attempt to negotiate concessions with its other employees. Members of both the Civil Service Employees Association and the Public Employees Federation, which together represent about 120,000 workers, are currently weighing new contracts that include three-year wage freezes, unpaid week-long furloughs and greater employee pension and health insurance contributions. Mr. Megna said an immediate pay raise on the order of the 40 percent or more that the Office of Court Administration and judicial groups are proposing to make up for judges' losses to inflation since 1999 would throw the state's pay scale "out of whack." He also noted that state cabinet-level employees, legislators and statewide-elected officials, such as Mr. Cuomo himself, have not gotten raises since 1999. Mr. Megna described it as a conscious, long-term effort to keep salaries for top judges and state officials "relatively constant." Mr. Megna observed that the state faces a $2.4 billion budget gap in the year beginning April 1, when raises for the judges would go into effect. William C. Thompson Jr., Mr. Cuomo's choice as chairman of the commission, said after yesterday's hearing that Mr. Megna had touched on one aspect that commission members know they have to consider: the state's ability to pay for a judicial raise, if the panel recommends one. "He gave a strong presentation," Mr. Thompson said of Mr. Megna's comments. "But we've all been aware of [the state's fiscal woes] as an element in our deliberations." Other factors the commission is to consider before making its report by Aug. 29 are what judges on other federal and state benches earn and the effects of inflation on judges' salaries. Advocates for a significant raise up front included the New York State Bar Association (Read Testimony), the New York City Bar (Read Submission), the New York County Lawyers' Association (Read Submission), the Fund for Modern Courts and New York City Corporation Counsel Michael A. Cardozo (Read Testimony). The state's chief administrative judge, Ann Pfau, argued that the public's "trust and confidence" in the Judiciary will be maintained by paying judges a realistic wage that is in keeping with what federal judges in other states or associates at large law firms make. Judith Kaye, former New York State Chief Judge, left, and Ann Pfau, chief administrative judge, testify before the commission. "We strongly believe that any award should be immediate and complete—that is, it should not be staggered or phased in over a period of several years in light of the state's current fiscal difficulties," Judge Pfau said. "Such a phase-in could accomplish little and damage a good deal." Asked after the hearing about Mr. Megna's comments, Judge Pfau repeated what she told the commission, that a raise would amount to about $77 million, a minute portion of the overall state budget of some $131 billion. Judge Pfau argued that judges have been unfairly shortchanged and that the current state fiscal crisis should not preclude the commission from recommending a raise that judges deserve. "It is a problem that has been over 12 years in the making," she said in an interview. "If judges had received regular cost-of-living increases, I would agree with him [Mr. Megna]. But I think we are in a different situation, from my perspective." Judge Pfau was among several witnesses who contended that by denying judges the raises since 1999, the state saved more than $500 million in salaries and benefits. Judge Pfau said she was also surprised by Mr. Megna's comments suggesting that keeping judges' salaries —and those of top state bureaucrats and legislators—at a "relatively constant" level was a conscious policy decision. The Judiciary has argued that pay raise bills have failed annually because they have become unconstitutionally encumbered by debates on unrelated public policy matters such as government ethics bills. The Court of Appeals has agreed with that assessment. The former chief judge of the state, Judith S. Kaye, now of Skadden, Arps, Slate, Meagher & Flom, implored the commission to recommend a raise for the sake of the independence of the judiciary, despite the state's rough fiscal circumstances. "Raises for New York judges now?" she asked commission members. "Yes, raises for New York judges now." Ms. Kaye sued the governor and Legislature while chief judge to force passage of a raise. Mr. Cardozo argued that the lack of a pay raise is weakening both the Judiciary and state government. He argued that the salary has made it difficult to attract qualified applicants for the bench. Senior public services attorneys, such as prosecutors and the ones in his own office, are reluctant to accept what would represent a pay cut, he said. "This must be corrected," Mr. Cardozo said. "Now."
The New York Law Journal by Joel Stashenko - July 21, 2011
Although virtually all of the 33 speakers at yesterday's hearing advocated for an immediate and large pay raise for the state's 1,200 judges, Governor Cuomo's top budget adviser said the state cannot afford it, citing continuing budget shortfalls and the state's attempt to negotiate concessions with its other employees.
ALBANY, NY - Governor Andrew M. Cuomo's top budget adviser said yesterday that New York state cannot afford raises for judges in the short term. "I think the issue as we see it right now…is that the spending is not affordable," Robert Megna told the seven members of a judicial compensation commission established to consider whether state judges should get their first raises since Jan. 1, 1999. Mr. Megna was one of 33 speakers at the commission's first and only hearing. Virtually all of them advocated for an immediate and large pay raise for the state's 1,200 judges. But Mr. Megna cited the state's continuing budget shortfalls and its attempt to negotiate concessions with its other employees. Members of both the Civil Service Employees Association and the Public Employees Federation, which together represent about 120,000 workers, are currently weighing new contracts that include three-year wage freezes, unpaid week-long furloughs and greater employee pension and health insurance contributions. Mr. Megna said an immediate pay raise on the order of the 40 percent or more that the Office of Court Administration and judicial groups are proposing to make up for judges' losses to inflation since 1999 would throw the state's pay scale "out of whack." He also noted that state cabinet-level employees, legislators and statewide-elected officials, such as Mr. Cuomo himself, have not gotten raises since 1999. Mr. Megna described it as a conscious, long-term effort to keep salaries for top judges and state officials "relatively constant." Mr. Megna observed that the state faces a $2.4 billion budget gap in the year beginning April 1, when raises for the judges would go into effect. William C. Thompson Jr., Mr. Cuomo's choice as chairman of the commission, said after yesterday's hearing that Mr. Megna had touched on one aspect that commission members know they have to consider: the state's ability to pay for a judicial raise, if the panel recommends one. "He gave a strong presentation," Mr. Thompson said of Mr. Megna's comments. "But we've all been aware of [the state's fiscal woes] as an element in our deliberations." Other factors the commission is to consider before making its report by Aug. 29 are what judges on other federal and state benches earn and the effects of inflation on judges' salaries. Advocates for a significant raise up front included the New York State Bar Association (Read Testimony), the New York City Bar (Read Submission), the New York County Lawyers' Association (Read Submission), the Fund for Modern Courts and New York City Corporation Counsel Michael A. Cardozo (Read Testimony). The state's chief administrative judge, Ann Pfau, argued that the public's "trust and confidence" in the Judiciary will be maintained by paying judges a realistic wage that is in keeping with what federal judges in other states or associates at large law firms make. Judith Kaye, former New York State Chief Judge, left, and Ann Pfau, chief administrative judge, testify before the commission. "We strongly believe that any award should be immediate and complete—that is, it should not be staggered or phased in over a period of several years in light of the state's current fiscal difficulties," Judge Pfau said. "Such a phase-in could accomplish little and damage a good deal." Asked after the hearing about Mr. Megna's comments, Judge Pfau repeated what she told the commission, that a raise would amount to about $77 million, a minute portion of the overall state budget of some $131 billion. Judge Pfau argued that judges have been unfairly shortchanged and that the current state fiscal crisis should not preclude the commission from recommending a raise that judges deserve. "It is a problem that has been over 12 years in the making," she said in an interview. "If judges had received regular cost-of-living increases, I would agree with him [Mr. Megna]. But I think we are in a different situation, from my perspective." Judge Pfau was among several witnesses who contended that by denying judges the raises since 1999, the state saved more than $500 million in salaries and benefits. Judge Pfau said she was also surprised by Mr. Megna's comments suggesting that keeping judges' salaries —and those of top state bureaucrats and legislators—at a "relatively constant" level was a conscious policy decision. The Judiciary has argued that pay raise bills have failed annually because they have become unconstitutionally encumbered by debates on unrelated public policy matters such as government ethics bills. The Court of Appeals has agreed with that assessment. The former chief judge of the state, Judith S. Kaye, now of Skadden, Arps, Slate, Meagher & Flom, implored the commission to recommend a raise for the sake of the independence of the judiciary, despite the state's rough fiscal circumstances. "Raises for New York judges now?" she asked commission members. "Yes, raises for New York judges now." Ms. Kaye sued the governor and Legislature while chief judge to force passage of a raise. Mr. Cardozo argued that the lack of a pay raise is weakening both the Judiciary and state government. He argued that the salary has made it difficult to attract qualified applicants for the bench. Senior public services attorneys, such as prosecutors and the ones in his own office, are reluctant to accept what would represent a pay cut, he said. "This must be corrected," Mr. Cardozo said. "Now."
Wednesday, July 20, 2011
Judge Faulted by Corrupt Tembeckjian for Hearing Cases Brought by His Firm
Judge Faulted for Hearing Cases Brought by His Firm
The New York Law Journal by Joel Stashenko - July 20, 2011
An upstate City Court judge has been admonished by the Commission on Judicial Conduct for presiding over cases brought by a local attorney whom the judge's law firm had hired to act as a debt collector. The commission said yesterday that David A. Shults, an attorney and part-time judge in Hornell, Steuben County, acknowledged that he did not disclose that his firm, Shults and Shults, had hired Joseph G. Pelych of Hornell to enforce court judgments the firm had obtained. The commission reported that Judge Shults improperly presided over nine cases involving Mr. Pelych. "It is inexplicable why the attorney's request for the respondent's recusal failed to bring to his attention that he should not be presiding, or even to create a doubt in his mind sufficient to check the Advisory Opinions [on judicial ethics] or other relevant law," the commission held. But it noted in mitigation that the judge had been called on unexpectedly to fill in for another judge on the day of his alleged violations and may not have been aware of his firm's relationship with Mr. Pelych. Moreover, the commission observed that the judge cooperated fully with its investigation. Commission members Thomas A. Klonick, Terry Jane Ruderman, Rolando T. Acosta, Joel Cohen, Paul B. Harding, Nina M. Moore and Richard A. Stoloff joined in the majority ruling. Richard Emery and Supreme Court Justice Karen K. Peters argued that Judge Shults, an attorney since 1997, should have received the more severe penalty of a public censure. "In view of respondent's attorney-client relationship with Mr. Pelych, respondent's handling of these matters was unavoidably twinged with an appearance of impropriety," the dissenters argued. "Even if respondent believes he could be impartial in these cases, at the very least disclosing the relationship was required under the ethical guidelines."
STATE OF NEW YORK COMMISSION ON JUDICIAL CONDUCT
In the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to
DETERMINATION - DAVID A. SHULTS, a Judge of the Hornell City Court, Steuben County.
THE COMMISSION: Honorable Thomas A. Klonick, Chair; Honorable Terry Jane Ruderman, Vice Chair; Honorable Rolando T. Acosta; Joseph W. Belluck, Esq.; Joel Cohen, Esq.; Richard D. Emery, Esq.; Paul B. Harding, Esq.; Nina M. Moore; Honorable Karen K. Peters; Richard A. Stoloff, Esq.
APPEARANCES: Robert H. Tembeckjian (David M. Duguay, Of Counsel) for the Commission; Honorable David A. Shults, pro se
The respondent, David A. Shults, a Judge ofthe Hornell City Court, Steuben County, was served with a Formal Written Complaint dated February 16,2011, containing one charge. The Fonnal Written Complaint alleged that respondent presided over nine cases in which a client of his law firm represented a party. Respondent filed an undated answer on or about March 9, 2011. On June 7, 2011, the Administrator and respondent entered into an Agreed Statement of Facts pursuant to Judiciary Law §44(5), stipulating that the Commission make its determination based upon the agreed facts, recommending that respondent be admonished and waiving further submissions and oral argument. On June 16, 2011, the Commission accepted the Agreed Statement and made the following determination.
In a 1976 disciplinary proceeding, the Appellate Division, Second Department, stated that handling matters involving former clients "cannot [be] countenance[d]" and might in some cases result in removal: While we realize that in small communities, part-time judges or justices, many of whom are principally engaged in the practice of the law, know many, if not most, of the people in their community, and may, in exigent circumstances, be required to preside over arraignments and bail applications, we cannot countenance the apparently prevailing practice in which such judicial officers sit in judgment in cases in which they formerly had an attorney-client relationship with the litigant. Hereafter any such conduct by a judicial officer, whether full or part-time, may well be met with removal of the offender from office. Matter ofFilipowicz, 54 AD2d 348, 350 (2d Dept 1976). Since 1988, the Advisory Committee on Judicial Ethics has issued numerous opinions reminding judges who practice law of the impropriety of handling matters involving their clients and providing specific guidelines for judges in such situations. Under these standards, ajudge's disqualification in matters involving a client of the judge's law firm is required during the representation and for two years thereafter, subject to remittal; after that time, ajudge
may preside in such matters after full disclosure on the record and in the absence of a meritorious objection (see, e.g., Adv Op 01-71,97-85,94-71,92-14,92-01,89-13). The Committee has also stated that "the same standards and guidelines [for disqualification] should apply" in matters in which the attorney in a case is a client or former client as in matters in which a party is a client (Op 01-71; see also, Op 89-13). The Commission has disciplined judges for failing to disqualify in cases involving such conflicts (see, e.g., Matter ofAison, 2010 Annual Report 62; Matter of Bruhn, 1988 Annual Report 133; Matter of Feeney, 1988 Annual Report 159; Matter of Darrigo, 2 Commission Determinations 353 [1981]). As stipulated here, respondent violated these standards by presiding over and/or taking other judicial action in eight criminal cases and one civil case in which Mr. Pelych represented a party, notwithstanding that at the time Mr. Pelych was a client of respondent's firm. Respondent did not disclose the conflict or offer to disqualify himself. In Scouten v. Mann, respondent denied a request for his recusal when an attorney objected to respondent's participation in the case, forcing the attorney to commence litigation that resulted in Mr. Pelych's disqualification. It is inexplicable why the attorney's request for respondent's recusal failed to bring to his attention that he should not be presiding, or even to create a doubt in his mind sufficient to check the Advisory Opinions or other relevant law. In view of respondent's attorney-client relationship with Mr. Pelych, respondent's handling of these matters was unavoidably tinged with an appearance of impropriety. Even if respondent believed he could be impartial in these cases, at the very least disclosing the relationship was required under the ethical guidelines. As we have previously stated, "There can be no substitute for making full disclosure on the record in order to ensure that the parties are fully aware of the pertinent facts and have an opportunity to consider whether to seek the judge's recusal" (Matter of Merrill, 2008 Annual Report 181 [Comm on Judicial Conduct]). By failing to disclose his attorney client relationship with the attorney appearing before him, respondent did not act "in a manner that promotes public confidence in the integrity and impartiality of the judiciary" (Rules, §100.2[A]). In mitigation, we note that the eight criminal cases occurred on the same date, when respondent was substituting for a colleague who was the assigned judge in those cases, and that there is no indication that respondent's judicial actions were influenced by his relationship with Mr. Pelych. We also note that respondent was cooperative with the Commission and has pledged to adhere to the Rules. By reason of the foregoing, the Commission determines that the appropriate disposition is admonition.
Judge Klonick, Judge Ruderman, Judge Acosta, Mr. Cohen, Mr. Harding, Ms. Moore and Mr. Stoloff concur. Mr. Emery and Judge Peters dissent in an opinion and vote to reject the Agreed Statement on the basis that the proposed disposition is too lenient. Mr. Belluck was not present.
CERTIFICATION It is certified that the foregoing is the determination of the State Commission on Judicial Conduct.
Dated: July 7, 2011 - Jean M. Savanyu, Esq. Clerk of the Commission, New York State Commission on Judicial Conduct
STATE OF NEW YORK COMMISSION ON JUDICIAL CONDUCT
In the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to
DAVID A. SHULTS, a Judge of the Hornell City Court, Steuben County.
DISSENTING OPINION BY MR. EMERY AND JUDGE PETERS
Put simply, respondent, a part-time judge for over a decade, had a private practice which included debt collection. The Town Attorney had cases in front of the judge. At the same time the Town Attorney hired the judge to collect debts for his own law practice. The Rules could not be clearer that a judge cannot sit on a current client's case. In fact, as the Determination points out, this violation can be grounds for removal. In this case the judge not only violated the Rules but refused to acknowledge the violation
when a litigant's attorney appearing before him pointed it out and asked him to do what was required - get off the case. Respondent's intransigence forced the litigant to go to a higher judge to order respondent to step aside. We do not believe that this conduct, in the face of a glaring and knowing violation, should be rewarded with a mere admonition. More severe discipline is mandated no matter how conveniently remorseful the judge is when the Commission institutes proceedings. Thus, he should be censured. Accordingly, we vote to reject the Agreed Statement of Facts.
Dated: July 7, 2011 - Richard D. Emery, Esq., Member, New York State Commission on Judicial Conduct; Honorable Karen K. Peters, Member, New York State Commission on Judicial Conduct
The New York Law Journal by Joel Stashenko - July 20, 2011
An upstate City Court judge has been admonished by the Commission on Judicial Conduct for presiding over cases brought by a local attorney whom the judge's law firm had hired to act as a debt collector. The commission said yesterday that David A. Shults, an attorney and part-time judge in Hornell, Steuben County, acknowledged that he did not disclose that his firm, Shults and Shults, had hired Joseph G. Pelych of Hornell to enforce court judgments the firm had obtained. The commission reported that Judge Shults improperly presided over nine cases involving Mr. Pelych. "It is inexplicable why the attorney's request for the respondent's recusal failed to bring to his attention that he should not be presiding, or even to create a doubt in his mind sufficient to check the Advisory Opinions [on judicial ethics] or other relevant law," the commission held. But it noted in mitigation that the judge had been called on unexpectedly to fill in for another judge on the day of his alleged violations and may not have been aware of his firm's relationship with Mr. Pelych. Moreover, the commission observed that the judge cooperated fully with its investigation. Commission members Thomas A. Klonick, Terry Jane Ruderman, Rolando T. Acosta, Joel Cohen, Paul B. Harding, Nina M. Moore and Richard A. Stoloff joined in the majority ruling. Richard Emery and Supreme Court Justice Karen K. Peters argued that Judge Shults, an attorney since 1997, should have received the more severe penalty of a public censure. "In view of respondent's attorney-client relationship with Mr. Pelych, respondent's handling of these matters was unavoidably twinged with an appearance of impropriety," the dissenters argued. "Even if respondent believes he could be impartial in these cases, at the very least disclosing the relationship was required under the ethical guidelines."
STATE OF NEW YORK COMMISSION ON JUDICIAL CONDUCT
In the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to
DETERMINATION - DAVID A. SHULTS, a Judge of the Hornell City Court, Steuben County.
THE COMMISSION: Honorable Thomas A. Klonick, Chair; Honorable Terry Jane Ruderman, Vice Chair; Honorable Rolando T. Acosta; Joseph W. Belluck, Esq.; Joel Cohen, Esq.; Richard D. Emery, Esq.; Paul B. Harding, Esq.; Nina M. Moore; Honorable Karen K. Peters; Richard A. Stoloff, Esq.
APPEARANCES: Robert H. Tembeckjian (David M. Duguay, Of Counsel) for the Commission; Honorable David A. Shults, pro se
The respondent, David A. Shults, a Judge ofthe Hornell City Court, Steuben County, was served with a Formal Written Complaint dated February 16,2011, containing one charge. The Fonnal Written Complaint alleged that respondent presided over nine cases in which a client of his law firm represented a party. Respondent filed an undated answer on or about March 9, 2011. On June 7, 2011, the Administrator and respondent entered into an Agreed Statement of Facts pursuant to Judiciary Law §44(5), stipulating that the Commission make its determination based upon the agreed facts, recommending that respondent be admonished and waiving further submissions and oral argument. On June 16, 2011, the Commission accepted the Agreed Statement and made the following determination.
- 1. Respondent has been a Judge of the Hornell City Court, Steuben County, since 1997. His current term expires on October 26,2015. Respondent was admitted to the practice of law in New York in 1969.
- 2. Respondent is a partner in the law firm ofShults and Shults, which maintains an office in Hornell, New York.
- 3. Joseph G. Pelych, Esq., is the City Attorney of Hornell, New York and maintains a solo private law practice.
- 4. From about May 2006 to about February 2009, Mr. Pelych was a, client of respondent's law firm. Respondent's firm brought 16 actions on behalf of Mr. Pelych to recover unpaid legal fees, and obtained judgments for Mr. Pelych totaling $10,226.57 in 13 of those actions, as set forth in Schedule A to the Agreed Statement of Facts.
- 5. Respondent acknowledges that Section 100.3(E) of the Rules Governing Judicial Conduct ("Rules") obligates him to disqualify himself in a proceeding in which his impartiality might reasonably be questioned. Respondent further acknowledges that Opinions a1-71 and 89-13 of the Advisory Committee on Judicial Ethics direct that a judge must recuse when an attorney appears as counsel within two years of being a client of the judge's law firm. Where an attorney appearing before a judge was a client of the judge's law firm more than two years prior to the appearance, the judge may preside after full disclosure on the record, and in the absence of a meritorious objection.
- 6. As set forth below, respondent presided over and/or took other judicial action in nine cases in which Mr. Pelych represented a party, notwithstanding that Mr. Pelych was at the time a client of respondent's law firm.
- 7. On May 15,2008, respondent presided over eight cases in which the defendants were represented by Mr. Pelych. Respondent knew that Mr. Pelych represented the defendants in these cases and that Mr. Pelych was a client of respondent's law firm. Respondent took judicial action by accepting guilty pleas to reduced charges in four cases, granting an Adjournment in Contemplation of Dismissal in one case, and adjourning three cases, as set forth in Schedule B to the Agreed Statement of Facts.
- 8. Respondent did not disclose his relationship to Mr. Pelych or offer to disqualifY himself in any of the eight cases set forth in Schedule B.
- 9. On or about January 29, 2009, respondent was assigned to preside over Patricia Scouten v. Terry & Patricia Mann, a summary eviction proceeding in which Mr. Pelych represented the landlord/petitioner. A trial in the matter was scheduled for February 6,2009.
- 10. By letter dated January 30, 2009, the tenants' attorney, William W. Pulos, Esq., requested that respondent recuse himself from the case. Mr. Pulos argued, among other things, that "Mr. Pelych has brought cases to [respondent] and/or his law firm and/or the collection agency owned by [respondent] for either the personal representation of Mr. Pelych and/or other of Mr. Pelych's clients resulting in referrals of clients and payment of fees between them."
- 11. On or about February 2, 2009, respondent issued a Decision and Order denying Mr. Pulos' recusal request.
- 12. On February 3,2009, Mr. Pulos filed a CPLR Article 78 petition seeking a Writ of Prohibition prohibiting Mr. Pelych from representing private clients in the Hornell City Court because of his position as City Attorney and prohibiting respondent from presiding over Scouten v. Mann.
- 13. On February 3, 2009, Acting Steuben County Supreme Court Justice Peter C. Bradstreet signed a Temporary Restraining Order staying the jury trial, but not other proceedings, in Scouten v. Mann.
- 14. On February 4,2009, respondent presided over a pre-trial conference attended by Mr. Pulos and Mr. Pelych.
- 15. On February 5, 2009, Judge Bradstreet issued an oral order from the bench, disqualifying Mr. Pelych from serving as counsel in Scouten v. Mann.
- 16. On February 6,2009, Brian C. Schu, Esq., became the substituted attorney of record for the landlord/petitioner in Scouten v. Mann.
- 17. On February 6, 2009, prior to the commencement of trial in Scouten v. Mann, respondent approved a settlement proposed by the parties. The settlement was reduced to an Order which respondent executed on February 11,2009. On March 9, 2009, Judge Bradstreet dismissed the Article 78, finding, inter alia, that the settlement of the case rendered the petitioners' remaining claims moot.
- 18. On May 15, 2008, respondent was substituting for his colleague, Hornell City Court Judge Joseph E. Damrath. All defendants on the court calendar had been previously arraigned by Judge Damrath, who was the assigned judge on each matter scheduled. All of the judicial determinations made by respondent on that occasion were in accordance with dispositional recommendations made by the Steuben County District Attorney's Office, as formulated or negotiated while the matters were pending before Judge Damrath and as would have been presented to Judge Damrath had he been available to preside that day. There is no indication that respondent's judicial actions were affected by his relationship with Mr. Pelych.
- 19. Respondent has been cooperative with the Commission throughout its inquiry.
- 20. Respondent has served as a Hornell City Court Judge for 14 years and has never been disciplined for judicial misconduct. He regrets his failure to abide by the Rules in this instance and pledges to accord himself with the Rules.
In a 1976 disciplinary proceeding, the Appellate Division, Second Department, stated that handling matters involving former clients "cannot [be] countenance[d]" and might in some cases result in removal: While we realize that in small communities, part-time judges or justices, many of whom are principally engaged in the practice of the law, know many, if not most, of the people in their community, and may, in exigent circumstances, be required to preside over arraignments and bail applications, we cannot countenance the apparently prevailing practice in which such judicial officers sit in judgment in cases in which they formerly had an attorney-client relationship with the litigant. Hereafter any such conduct by a judicial officer, whether full or part-time, may well be met with removal of the offender from office. Matter ofFilipowicz, 54 AD2d 348, 350 (2d Dept 1976). Since 1988, the Advisory Committee on Judicial Ethics has issued numerous opinions reminding judges who practice law of the impropriety of handling matters involving their clients and providing specific guidelines for judges in such situations. Under these standards, ajudge's disqualification in matters involving a client of the judge's law firm is required during the representation and for two years thereafter, subject to remittal; after that time, ajudge
may preside in such matters after full disclosure on the record and in the absence of a meritorious objection (see, e.g., Adv Op 01-71,97-85,94-71,92-14,92-01,89-13). The Committee has also stated that "the same standards and guidelines [for disqualification] should apply" in matters in which the attorney in a case is a client or former client as in matters in which a party is a client (Op 01-71; see also, Op 89-13). The Commission has disciplined judges for failing to disqualify in cases involving such conflicts (see, e.g., Matter ofAison, 2010 Annual Report 62; Matter of Bruhn, 1988 Annual Report 133; Matter of Feeney, 1988 Annual Report 159; Matter of Darrigo, 2 Commission Determinations 353 [1981]). As stipulated here, respondent violated these standards by presiding over and/or taking other judicial action in eight criminal cases and one civil case in which Mr. Pelych represented a party, notwithstanding that at the time Mr. Pelych was a client of respondent's firm. Respondent did not disclose the conflict or offer to disqualify himself. In Scouten v. Mann, respondent denied a request for his recusal when an attorney objected to respondent's participation in the case, forcing the attorney to commence litigation that resulted in Mr. Pelych's disqualification. It is inexplicable why the attorney's request for respondent's recusal failed to bring to his attention that he should not be presiding, or even to create a doubt in his mind sufficient to check the Advisory Opinions or other relevant law. In view of respondent's attorney-client relationship with Mr. Pelych, respondent's handling of these matters was unavoidably tinged with an appearance of impropriety. Even if respondent believed he could be impartial in these cases, at the very least disclosing the relationship was required under the ethical guidelines. As we have previously stated, "There can be no substitute for making full disclosure on the record in order to ensure that the parties are fully aware of the pertinent facts and have an opportunity to consider whether to seek the judge's recusal" (Matter of Merrill, 2008 Annual Report 181 [Comm on Judicial Conduct]). By failing to disclose his attorney client relationship with the attorney appearing before him, respondent did not act "in a manner that promotes public confidence in the integrity and impartiality of the judiciary" (Rules, §100.2[A]). In mitigation, we note that the eight criminal cases occurred on the same date, when respondent was substituting for a colleague who was the assigned judge in those cases, and that there is no indication that respondent's judicial actions were influenced by his relationship with Mr. Pelych. We also note that respondent was cooperative with the Commission and has pledged to adhere to the Rules. By reason of the foregoing, the Commission determines that the appropriate disposition is admonition.
Judge Klonick, Judge Ruderman, Judge Acosta, Mr. Cohen, Mr. Harding, Ms. Moore and Mr. Stoloff concur. Mr. Emery and Judge Peters dissent in an opinion and vote to reject the Agreed Statement on the basis that the proposed disposition is too lenient. Mr. Belluck was not present.
CERTIFICATION It is certified that the foregoing is the determination of the State Commission on Judicial Conduct.
Dated: July 7, 2011 - Jean M. Savanyu, Esq. Clerk of the Commission, New York State Commission on Judicial Conduct
STATE OF NEW YORK COMMISSION ON JUDICIAL CONDUCT
In the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to
DAVID A. SHULTS, a Judge of the Hornell City Court, Steuben County.
DISSENTING OPINION BY MR. EMERY AND JUDGE PETERS
Put simply, respondent, a part-time judge for over a decade, had a private practice which included debt collection. The Town Attorney had cases in front of the judge. At the same time the Town Attorney hired the judge to collect debts for his own law practice. The Rules could not be clearer that a judge cannot sit on a current client's case. In fact, as the Determination points out, this violation can be grounds for removal. In this case the judge not only violated the Rules but refused to acknowledge the violation
when a litigant's attorney appearing before him pointed it out and asked him to do what was required - get off the case. Respondent's intransigence forced the litigant to go to a higher judge to order respondent to step aside. We do not believe that this conduct, in the face of a glaring and knowing violation, should be rewarded with a mere admonition. More severe discipline is mandated no matter how conveniently remorseful the judge is when the Commission institutes proceedings. Thus, he should be censured. Accordingly, we vote to reject the Agreed Statement of Facts.
Dated: July 7, 2011 - Richard D. Emery, Esq., Member, New York State Commission on Judicial Conduct; Honorable Karen K. Peters, Member, New York State Commission on Judicial Conduct
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