Wednesday, March 23, 2022

Circumstantial Evidence Of Grope Sufficient

The Massachusetts Supreme Judicial Court imposed sanctions on a probate court judge for findings of groping a court employee at a judicial conference and false testimony about the incident

we suspend the respondent without pay for a reasonable time or until further order of this court.

The incident

[The victim]  saw the Respondent make his way toward their table; he approached her from behind. As the respondent passed behind her stool, the complainant felt a hand grabbing her left buttock and squeezing it for several seconds. The respondent then joined the group at the complainant's table, standing directly to the complainant's left, and eventually offered to buy everyone at the table a drink.

Shocked and unsure what to do, the complainant did not visibly react to being grabbed and after approximately between ten to fifteen minutes excused herself from the table and made her way out of the restaurant. Prior to leaving, she did not reveal to anyone what had occurred, although she tried to alert one of her colleagues at the table by raising her eyebrows and giving the colleague "pointed looks." The colleague recalled that the complainant gave her "a particular look with her eyes. . . very wide-eyed" about five minutes after the colleague observed the respondent pass behind the complainant and approach the table, but the colleague did not understand what the complainant was attempting to communicate.

She reported the incident a few days later.

Sufficiency of evidence of unwanted touching

Although it is true that there was no direct evidence that the respondent touched the complainant, there was sufficient circumstantial evidence from which a fact finder could determine that there was a high probability the judge, and not someone else, did so. It is undisputed that the respondent passed behind the complainant -- the respondent and two of the complainant's colleagues confirmed as much -- and she maintained that he did so at the same moment the unwanted touching occured.

His story

There is also the fact that, ten days after first being made aware of the allegations by the Chief Justice of the Probate and Family Court, the respondent created and submitted a fictional version of events wherein he admitted to touching the complainant on the evening in question but tried to pass it off as unintentional.

Sanction

the commission has recommended, most prominently, that the respondent be suspended without pay for a reasonable time to permit the executive and legislative branches to consider, if they wish, whether the respondent should retain his judicial office.  The respondent, in turn, argues that such a sanction is "greatly excessive." He notes that he has already been removed from judicial duties for more than two years while this matter has been pending. In addition, he suggests that he has been "broadly" and "publicly" vilified and embarrassed during the course of these proceedings. As such, he maintains that no further sanctions are warranted. We agree that the sanction recommended by the commission is severe and one that, fortunately, has rarely been warranted.

WCBV 5 reported on the proceedings before the hearing officer

Retirement or removal from office are the recommendations emerging from a report on a hearing which investigated a Massachusetts Associate Probate and Family Court judge who is accused of inappropriate conduct during a two-day judicial conference in April 2019.

Worcester Probate and Family Court Judge Paul Sushchyk was removed from hearing cases and placed on administrative assignment earlier this year. A hearing in the case was held in July.

Sushchyk is accused of allegedly touching the buttocks of a woman who worked in the administrative office of the Massachusetts Probate and Family Court Department.

The incident reportedly happened at the Ocean Edge Resort and Golf Club in Brewster on April 25.

Sushchyk also allegedly removed a flask of whiskey out of his coat pocket.

The Commission on Judicial Conduct charges that Sushchyk has engaged in willful judicial misconduct that brings the judicial office into disrepute, as well as conduct prejudicial to the administration of justice and unbecoming a judicial officer and has violated the Massachusetts Code of Judicial Conduct.

The charges against Sushchyk came following the investigation of a complaint filed with the Commission on Judicial Conduct by Chief Justice of the Supreme Judicial Court Ralph Gants on June 4, 2019.

Bertha Josephson, who presided over the hearing for the judge, determined that Sushchyk provided false statements to the investigation and violated rules for judicial conduct. Her report, issued this week, concludes with the recommendation that Sushchyk retire or be removed from office.

Oral argument is linked here (courtesy Suffolk University Law School). (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2022/03/the-massachusetts-supreme-judicial-court-oral-argument-is-linked-here-courtesy-suffolk-university-law-school.html

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