December 13, 2007
Sanction Disagreement In Judicial Misconduct Case
The opinions of the New York State Commission on Judicial Conduct make for some interesting reading--particularly the barbs flying back and forth between commission members in their reports. A recent decision imposes censure on a judge who spoke ex parte to a police witness (who had not been called to testify) while he was deliberating on charges resulting from two neighbors' dispute over a barking dog. After the conversation (a chance encounter at a county fair), the judge found one of the neighbors guilty. The judge had prior discipline.
A concurring opinion by the committee chair (one Raoul Lionel Felder) felt that censure was too harsh because "For the last 39 years, the [judge] has been a quadriplegic. A large portion of his life has been effectively taken away...If missing from our considerations is the spark of empathy that set us apart from all other of God's creatures, our decisions are as nothing."
A dissent takes issue with the chair, and finds the sanction unduly lenient:
"The problem with Mr. Felder’s sympathetic exposition on the daily life of [the judge] is that, apparently, [the judge] either does not view his life in the same way as Mr. Felder or, more to the point, does not consider his disability an appropriate basis for mitigation in his case. I assume that if he did, his able counsel would have offered evidence to support such a claim.
We are required to limit our review of mitigation evidence to those factors that are probative of a judge’s proclivity to repeat misconduct. Nothing that I can think of about [the judges'] disability informs us on that point. If he is to be credited in this case, it should be for not playing that card. Regrettably, Mr. Felder has inappropriately chosen to play that card for him."
I'll bet the commission's deliberations are lively affairs. (Mike Frisch)
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