Defiant Local Lawyer Gets Year's
Probation, Fine, and Community Service

By the Staff of New Jersey Law Journal
New York Lawyer
April 10, 2008

Local Judge Lashes Out at BigLaw Lawyer

New Jersey Law Journal
New York Lawyer
March 28, 2008

F. Michael Giles, an Essex County Superior Court judge already facing ethics charges for cursing at a lawyer, apparently hasn't quite toned down his invective.

In an amended complaint filed Tuesday, the Advisory Committee on Judicial Conduct alleges further instances of Giles lashing out at lawyers. At a Dec. 12 conference, Giles is said to have asked a lawyer from Reed Smith, "Did you wake up on the wrong … [expletive] … side of bed?"

The ACJC said Giles also reacted badly to the initial ethics complaint filed against him in January, which had led Assignment Judge Patricia Costello to move him from the Criminal Part to the Civil Part. On Feb. 5, Giles asked lawyers in the Reed Smith case whether they had read about the initial complaint. When they said yes, he said that he had told Costello he could just as easily curse at lawyers in civil cases as in criminal cases. And when the Reed Smith lawyer reminded him of the Dec. 12 incident, Giles claimed not to remember but remarked he would call her as a witness at his ethics hearing since she seemed to have survived it, the ACJC said.

Another added count relates to two allegations of rudeness to landlord-tenant litigants in 1998. Giles was cautioned after apologizing and promising to behave, but the ACJC said those events and recent ones showed a pattern of improper conduct.

Giles, a judge since 1991, could not be reached for comment. A recusal motion in the Reed Smith case is scheduled for Wednesday.

Judge Spanked for Ordering Attorney to Be Shackled

By W.J. Hennigan
Legal Times
New York Lawyer
March 21, 2008

The D.C. Commission on Judicial Disabilities and Tenure determined last week that D.C. Superior Court Judge John Bayly Jr. violated the code of judicial conduct when he ordered a Public Defender Service attorney to be shackled and detained after an argument.

Transcripts from a criminal hearing on Aug. 29, 2007 reveal that the incident began when PDS attorney Liyah Brown attempted to tell Bayly that her client was "a homeless man." Bayly, however, said he wasn't so sure: "I don't know that he is."

The two began arguing until Bayly told Brown to "be quiet" and have a seat. He said he would "call the case later," and warned if she continued, she was "going to be in contempt in a minute."

When Brown failed to stop, Bayly called on a U.S. marshal to "[s]tep her back, please. Step her back." Brown was then handcuffed, subjected to a pat-down search and held in a cell with misdemeanor defendants for about 45 minutes.

The following week, PDS attorneys started a silent protest by wearing red armbands around the courthouse. They said their intention was to show solidarity with Brown.

The commission's determination and undertaking was issued last week and signed by Bayly on March 11. The determination said his actions were "grossly disproportionate" to Brown's conduct. It also said Bayly violated the code of conduct that says a "judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity."

According to the commission, Bayly has accepted the commission's conclusion and recognized his violation. He also wrote a note to Brown apologizing for his actions.

The commission said in view of Bayly's more than 18-year record on the bench, no further sanctions were necessary.

First reported in The BLT: The Blog of Legal Times.

NY Judge Defends His Conduct in Rare Public Hearing

By Mark Fass
New York Law Journal
New York Lawyer
December 7, 2007

      Judge Removed Over Phone Flap to Appeal Removal

By Joel Stashenko
New York Law Journal
New York Lawyer
November 29, 2007

The Niagara Falls City Court judge who ordered 46 defendants detained when no one would acknowledge owning a cell phone that rang in his courtroom intends to appeal his recommended removal to the Court of Appeals.

Attorney Terrence M. Connors said yesterday Judge Robert M. Restaino "deeply regrets and sincerely apologizes" for his actions on March 11, 2005. The Commission on Judicial Conduct recommended Tuesday that Judge Restaino be removed, finding that his conduct had brought irreparable harm to the public's confidence in him.

"It is our hope that the Court of Appeals will measure those few hours against a decade of exemplary conduct on the bench and years of extraordinary service to the Niagara Falls community," said Mr. Connors, of Connors & Vilardo in Buffalo.

Judge Restaino continued to serve on the bench yesterday. Typically, the Court of Appeals suspends judges with pay when they formally appeal removal recommendations to the Court. Judge Restaino, who has been on the bench full time since 2002, said he "snapped" during the cell phone incident due to stress in his personal life.

Cell Phone's Ring Could Be a Death Knell
 for NY Judge's Career on the Bench

New York Lawyer
November 28, 2007
By Joel Stashenko
New York Law Journal

ALBANY - A two-hour fit of pique in which an upstate city judge ordered 46 defendants into custody because none would take responsibility for a cell phone that went off in court should cost him his judicial career, the Commission on Judicial Conduct recommended yesterday.

Niagara Falls City Court Judge Robert M. Restaino's "painfully prolonged" outburst on March 11, 2005, "transcended poor judgment" and warrants his removal from the bench, according to to the Court of Appeals.

"In causing 46 individuals to be deprived of their liberty out of pique and frustration, respondent abandoned his role as a reasonable, fair jurist and instead became a petty tyrant, abusing his judicial power and placing himself above the law he was shown to administer," the commission concluded.

Although the judge's behavior constituted an isolated incident, his conduct brought the judiciary into "disrepute" and irreparably damaged public confidence in his ability to remain a judge, the commission held.

The commission's chairman, Raoul Felder, was the lone dissenter in the 9-1 determination. He called his decision the most difficult he has made in his four years on the commission.

Mr. Felder conceded that Judge Restaino engaged in "two hours of inexplicable madness" and wrote that when he first reviewed the facts in the case, he believed the judge had become a "tyrant" whose behavior merited removal. But on further review, and upon hearing a remorseful Judge Restaino ascribe his outburst to the buildup of stress in his personal life, Mr. Felder urged compassion and punishment short of removal.

"I cannot find it within myself to destroy this individual's professional life over this regrettable episode," Mr. Felder wrote. "The record shows without contradiction that he is a decent, humble, dedicated individual who is well-liked and respected . . . .Although the ultimate cause of respondent's bizarre behavior that day may never be known with certainty, it is uncontroverted that the conduct was a profound aberration in an otherwise unblemished career."

Judge Restaino, a one-time public defender, became a part-time judge in Niagara Falls in 1996. He became full time in 2002.

He was presiding over the Domestic Violence Part of Niagara Falls City Court when the ringing cell phone angered him.

The part is for defendants who have been charged with violence toward family members and who are participating in a 26-week program of counseling and education under which they must return to court once a week and are released weekly on their own recognizance.

After the cell phone went off and no one acknowledged it was theirs, the commission found that Judge Restaino began systematically to summon defendants to the bench and commit them to custody on $1,500 bail as they denied that the phone was theirs. Lawyers and others in the courtroom were not committed into custody.

"Everyone is going to jail; every single person is going to jail in this courtroom unless I get that instrument now," Judge Restaino announced that day, the commission said.

Eventually, 46 of about 75 defendants were taken to the booking area of the city's lockup. Thirty two were released on bail; the 14 who could not post bail were bused to Niagara County Jail in Lockport, a 30-minute ride. The judge ultimately ordered their release by the end of the day, though some were in custody for six hours or more, according to the commission. None were given transportation back to Niagara Falls.

Judge Restaino acknowledged that he "snapped" while being in the midst of a long period of personal stress in 2005, according to the commission. He told the commission he has been in counseling since.

Judge Restaino has remained a city court judge in Niagara Falls, though he has not served in the Domestic Violence Part since the incident.

Among those speaking out on the judge's behalf before the commission were Mark Anthony Violante, Niagara Falls City Court chief judge, and one of the incarcerated defendants, who credited the judge with helping get him through the domestic violence program.

Joel L. Daniels, Judge Restaino's Buffalo attorney, said yesterday he had not seen the ruling and could not comment on it or whether the decision would be appealed to the Court of Appeals.

Commission member Richard D. Emery, who tends to be a hard-liner on the severity of punishment for judicial misconduct, wrote a concurring opinion yesterday in which he referred to the "legerdemain" of Mr. Felder's dissent as being "breathtaking." Mr. Felder argued that Judge Restaino's case is not controlled by the commission's ruling in Matter of Blackburne, 7 NY3d 213, which was upheld by the Court of Appeals last year.

Mr. Felder, Mr. Emery wrote, voted last year in favor of the removal of Queens Supreme Court Justice Laura D. Blackburne, but in the similar matter involving Judge Restaino, argued that Blackburne should not apply.

"In my view, he must either admit his mistake in Blackburne and argue that it should be overturned, or vote to remove Judge Restaino," Mr. Emery wrote.

Mr. Felder's dissent was similar to a concurrence he made in a decision released Monday by the commission. In that matter, Mr. Felder argued for a less severe sanction than removal against a town and village court justice in Columbia County because of the personal challenges the justice faces as a quadriplegic (NYLawyer, Nov. 27). The commission voted censure in that case although it did not accept Mr. Felder's reasoning.

Local Lawyer Cited for
Contempt Files Ethics Complaint Against Judge

By Michael Booth
New Jersey Law Journal
New York Lawyer
November 8, 2007

A lawyer arrested and held in contempt by a Bloomfield Municipal Court judge has filed a complaint against him with the Advisory Committee on Judicial Conduct, claiming he penalized her for raising a racial-profiling defense in her client's traffic-violation case.

Rashidah Hasan, an East Orange solo who is also the director of legal affairs for Rashidah Hasan                                                     Essex County College, appeared before Judge Joseph Connolly on Oct. 4 on behalf of her client, DeWayne Smith. Bloomfield police had stopped Smith and charged him with careless driving, driving with no insurance, having a loud muffler and failing to obey police orders.

Smith, who is black, believed he was the victim of racial profiling, Hasan says, and she demanded that the police department turn over records of its traffic stops, which might support his claim.

After Municipal Prosecutor Paul Sant’Ambrogio concluded his case, Hasan made a verbal motion to dismiss the charges.

Connolly, she says, "went into a rage, pounding on the desk," held her in contempt and ordered her to pay a fine of $100. He told her to pay up at the next scheduled hearing in the case, on Oct. 25.

At the second hearing, Hasan asked Connolly to withdraw the contempt finding, arguing that she could not adequately represent Smith under the threat of jail for noncompliance.

Connolly refused to vacate the original contempt and then held her in contempt again, fining her $500 and ordering her to spend 10 days in jail.

"I was hauled off to the basement of the building in handcuffs and placed on a bench in the basement in handcuffs," she says. "I was fingerprinted and photographed. I was humiliated, disrespected and very emotionally upset by this whole incident. Imagine the fear and horror this incident must have on litigants before the court if their counsel is treated this way."

Connolly declines to comment on Hasan’s allegations because the contempt proceedings are still pending.

Sant’Ambrogio, who was present when Connolly found Hasan in contempt, also declines to comment, other than to say, "It was very unfortunate."

Bloomfield police said they could not release information about the incident.

Hasan's attorneys — Ronald Hunt and Raymond Hamlin of Newark’s Hunt, Hamlin & Ridley — did not return calls seeking comment.

Order in the Court: Pants-Dropping
 Coin-Flipping Incidents Get Judge Fired

By Larry O'Dell
The Associated Press
New York Lawyer
November 2, 2007

RICHMOND, Va. - A judge who ordered a woman to drop her pants and decided a custody dispute by flipping a coin was removed from the bench by the Virginia Supreme Court on Friday.

The decision against Juvenile and Domestic Relations Court Judge James Michael Shull of Gate City was unanimous.

"Unless our citizens can trust that judges will fairly resolve the disputes brought before our courts, and treat all litigants with dignity, our courts will lose the public's respect and confidence upon which our legal system depends," Justice Barbara Milano Keenan wrote.

According to the court, Shull admitted tossing a coin to determine which parent would have visitation with a child on Christmas. Shull said he was trying to encourage the parents to decide the issue themselves but later acknowledged that he was wrong.

The pants-dropping incidents, the court said, "were even more egregious."

The court said they occurred when a woman was seeking a protective order against a partner who she said had stabbed her in the leg. Shull knew the woman had a history of mental problems and insisted on seeing the wound, the court said.

The woman dropped her pants once to display the wound, then dropped them a second time after Shull left the bench for a closer look to determine whether the woman had received stitches.

A court bailiff testified before the commission that after the hearing, he asked Shull, "Did you see what that lady had on?" According to the bailiff, Shull replied: "Yeah, a black lacy thing ... it looked good, didn't it?"

Shull denied making the comment. His attorney, Russell V. Palmore, did not immediately return a phone call seeking comment Friday.

The justices could have merely censured Shull, but they noted that he had appeared before the Judicial Inquiry and Review Commission in 2004 for allegedly calling a teenager a "mama's boy" and a "wuss" and advising a woman to marry her abusive boyfriend. That complaint was dismissed with an admonition to Shull to chalk it up as a learning experience.

Judge Accused of Scamming Insurers Says He'll Go to Trial

By The Associated Press
New York Lawyer
October 1, 2007

ERIE, Pa. -- Suspended state Superior Court Judge Michael T. Joyce intends to stand trial on federal money laundering and mail fraud charges, according to his lawyer.

Attorney David Ridge refused to comment on the defense strategy, but said Joyce would "absolutely" go to trial.

Prosecutors accuse Joyce, 58, of bilking two insurance companies out of $440,000 in an automobile accident claim. Joyce has pleaded not guilty.

Ridge had a Saturday deadline to file pretrial motions, but prosecutors agreed to extend it until Nov. 28.

In court documents, Ridge said he needs the additional time to review the prosecution's evidence, including records and medical reports.

The case stems from an August 2001 traffic accident just outside Erie, where Joyce's 2001 Mercedes-Benz was rear-ended by a sport-utility vehicle traveling about 5 mph, prosecutors said.

Joyce told insurers the accident left him in such pain that he was unable to exercise or play golf for more than a year, prosecutors said. The indictment alleges Joyce was actually playing 18-hole rounds on courses as far away as Jamaica, going scuba diving and inline skating, and working out at a local gym.

Joyce received $390,000 from his insurer, the Erie Insurance Group, and $50,000 from State Farm Insurance, which insured the other driver, according to the indictment.

The state Supreme Court last month suspended Joyce from all judicial and administrative duties, but he continues to receive his $165,342 salary and full benefits. Senior Judge Fred P. Anthony was named to temporarily take over Joyce's duties.

A former Erie County judge, Joyce was elected to the Superior Court in 1997. After he was indicted, Joyce abandoned plans to seek a second 10-year term in the November election.

NY Judges Bench Colleague Over Math Homework

By Mark Hamblett
New York Law Journal
New York Lawyer
September 28, 2007

A federal appeals court has sharply criticized a judge for repeatedly ignoring the requirements of the sentencing guidelines and once again has removed him from a case.

Western District Judge John T. Elfvin showed a "pattern of behavior" that was "disturbing evidence of willfullness" by failing to state his reasons for departing from the guidelines and failing to give notice of his intention to depart, the U.S. Court of Appeals for the Second Circuit said yesterday. It was the third case in two years in which the circuit ordered reassignment from Judge Elfvin, all three involving sentencing decisions.

Judges Ralph Winter, John Walker and Robert Sack said in United States v. Benjamin, 05-3677-cr, that "the need to remove Judge Elfvin from this case" was "self-evident." Judge Winter wrote for the panel.

The case centers on Donald "Ducky" Benjamin and his brother Neal, who were found guilty of running a marijuana, crack and cocaine drug distribution ring out of Olean, N.Y., from 1994 to 1997.

Following U.S. Sentencing Guidelines Section 5G1.2(d), which states that sentences should be served consecutively up to the sentence set by the guidelines, the Probation Department's presentence reports called for stacking Donald Benjamin's prison terms so that he would receive 240 years and stacking Neil Benjamin's prison terms so he would serve 40 years.

While Judge Elfvin accepted the calculations of the reports, he downwardly departed under the guidelines and gave Donald Benjamin 30 years and Neal Benjamin 20 years.

Judge Winter said in yesterday's opinion that the judge "provided no coherent explanations for these departures."

Those sentences were vacated by the circuit in an earlier appeal because of the judge's failure to give notice or an explanation of the departures. United States v. Evans, 352 F.3d 65, 2d Cir. 2003.

But on remand, Judge Winter said, "the district court again provided no notice of any intention to depart or otherwise deviate from the advisory guidelines ranges prior to the resentencing hearings."

At Donald Benjamin's resentencing, where the judge gave the same sentence, the prosecutor asked why Judge Elfvin was adhering to his original sentence and was told, "I'll write you a letter."

At Neal Benjamin's resentencing, where the judge again gave the same sentence, the defense attorney asked about the letter promised at Donald Benjamin's sentencing and, although the judge asked his courtroom deputy to give a note to remind him about the letter, the government said no letter was ever produced.

"Evidently anticipating the judge's enigmatic behavior and fearing another overturning of the sentence, Neal's attorney came to the hearing with a proposed 'notice' for the judge to read into the record," Judge Winter said.

That notice contained several of the factors a judge must consider under §3553, including whether the sentence reflects the seriousness of the offense, whether the sentence was enough to protect the public from further crimes by the defendant and whether the sentence would afford adequate deterrence.

The prosecutor asked for an explanation of the sentence and Judge Elfvin said he had considered the case of both brothers for quite a long time, adding, "I think everything is adequately on the record." The judge read the notice into the record.

On the second appeal that ended with yesterday's decision, Judge Winter said that "Neal's sentencing was as perfunctory as Donald's."

"It was not preceded by a notice of a possible deviation or accompanied by a statement of reasons, save for the reading, without evident embarrassment, of the defense-prepared 'notice,' which was provided at the hearing and was simply a statement of several of the factors in §3553(a)."

But it was not the judge who read the notice.

It was Neal Benjamin's attorney, John Lavin of Buffalo, who, trying to stave off another reversal, did the job of the judge by reading the notice into the record.

The notice meant little to Judge Winter, who said the case had to be reassigned.

Cases Reassigned

"Reassignments because of the failure of the district judge to impose a proper sentence are uncommon, but it is not unprecedented for a case to be remanded to a different judge after a district court has twice used an improper sentencing procedure," he said. "We note, moreover, that reassignments are not uncommon in the case of Judge Elfvin."

The circuit remanded the case of United States v. Toohey twice and then finally reassigned it from Judge Elfvin to another judge.

It also took two remands and another appeal before the circuit reassigned, by unpublished order, Judge Elfvin's case of United States v. Sicurella on May 23, 2006 (2006 U.S. App. LEXIS 13546).

While it is rare for the circuit to direct a case be moved from one judge to another, the circuit has been doing more reassignments lately.

Earlier this year, for the third time in one year, the circuit pulled Southern District Richard Owen off a case (NYLJ, March 12).

The circuit also has been aggressive with immigration judges, just recently taking Judge Noel Ferris off a case for doubting a weeping asylum-seeker's sincerity and, earlier this year, for the third time, reassigning a case handled by Judge Jeffrey Chase for issues of demeanor.

Assistant U.S. Attorney James Kennedy and U.S. Attorney Terrance Flynn represented the government. A spokeswoman said yesterday the government was declining comment.

Vincent Doyle of Connors & Vilardo in Buffalo represented Donald Benjamin.

Mr. Doyle did not return a call for comment.

Mr. Lavin, who has been working on the case for 10 years, said yesterday he was disappointed by the ruling but not surprised.

"Judge Elfvin has on a couple of occasions been his own boss and I believe the Second Circuit doesn't want him to be that," Mr. Lavin said. "He's a maverick judge and I mean that with the best intentions."

Mr. Lavin said that had Judge Elfvin resentenced the brothers after the U.S. Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), the judge would have had a freer hand to give a lower sentence. Nonetheless, even though Booker rendered the guidelines advisory, the judge is still required to outline his reasons for giving the sentence.

Judge Elfvin could not be reached for comment and his chambers referred calls to Western District Chief Judge Richard Arcara. Judge Arcara, who may end up handling the resentencing, did not return a call for comment.

NY Jurist Admits Faux Pas, Says She'll Never Judge Again

By Daniel Wise
New York Law Journal
New York Lawyer
September 28, 2007

Bronx Family Court Judge Marian R. Shelton, after vigorously contesting charges of misconduct, cut a deal yesterday with the state Commission on Judicial Conduct under which she admitted a single violation of the Code of Judicial Conduct.

In a stipulation approved by the commission yesterday, Judge Shelton acknowledged that she had violated the code's injunction that judges be "patient, dignified and courteous" when she ordered the wife of a court clerk in her Bronx courtroom handcuffed and jailed over a weekend.

The judge was allowed to remain on the bench until her term ends Dec. 31 without any sanction. However, she stated that she did not intend to seek or accept judicial office or a position as a judicial hearing officer at any time in the future.

The admitted count was one of 13 proffered by the commission accusing Judge Shelton of being rude, intemperate and demeaning in her treatment of litigants, lawyers and court personnel, including two judges. Pursuant to the stipulation, the remaining 12 counts were withdrawn though they could be reinstated if Judge Shelton again seeks to become a judge or violates the terms of the stipulation. However, the commission does not have jurisdiction over hearing officers and could not reinstate the charges if she accepted such a position.

As elaborated in the stipulation, the episode that led Judge Shelton to find Michele Nusser in contempt of court started when Ms. Nusser motioned to her husband, Ben Nusser, who was working in Judge Shelton's courtroom at 6:45 p.m. after all the litigants had left.

Judge Shelton then ordered Ms. Nusser to leave, and Ms. Nusser called the judge an "asshole." The judge jailed Ms. Nusser, but freed the woman a short time later after she had apologized.

Judge Shelton, who was appointed to the Family Court in July 1998 by then-Mayor Rudolph W. Giuliani, had previously disclosed that she would not seek reappointment.

The commission would have lost jurisdiction over Judge Shelton once her term expired. But it could not have completed a hearing before year's end given the notice and other requirements in its rules governing its hearings.

According to the commission's Web site, Judge Shelton's case was the 19th in which it has agreed to forgo pressing charges against a departing judge in exchange for an agreement to never return to the bench and, in some instances, admissions.

Had the case proceeded to a hearing, the commission's charges - and Judge Shelton's defense - would have been publicly aired since Judge Shelton was the ninth judge in the commission's history to have waived the confidentiality of the process.

Until acknowledging the conduct concerning Ms. Nusser, Judge Shelton had blasted the commission's case and the commission itself on several fronts.

In her answer, Judge Shelton accused the commission of doing the bidding of Dennis Quirk, the combative president of the 1,500-member New York Court Officers Association who she claimed had a grudge against her because she had "refused to accede" to his demands that he control the Family Court's courtrooms (NYLJ, Aug. 14).

In a statement given to the press when she waived confidentiality, Judge Shelton denounced the commission proceedings as "surreal" and referred to the commission's selection of the referee to hear her case as "the kangaroo's latest hop."

Judge Shelton's husband, Saul Cohen, a former partner at Proskauer Rose and general counsel of Lehman Brothers, also financed a group that took out two full-page ads in The New York Times criticizing both the commission and its chairman, Raoul Felder.

Dean Yuzek, Judge Shelton's lawyer, declined to elaborate on why Judge Shelton had decided to accept a stipulation after so broadly condemning the commission's charges and its proceedings against her.

Mr. Yuzek, of Ingram Yuzek Gainen Carroll & Bertolotti, said he could not comment beyond a statement he had issued yesterday. In that statement, he said all the facts admitted by Judge Shelton had previously been admitted in her answer or "while admitted, require context supplied in the answer."

Mr. Yuzek also noted that the stipulation allows Judge Shelton to finish her term without the imposition of a sanction, and suggested that the commission's administrator and counsel, Robert H. Tembeckjian, should be asked why the commission agreed to a stipulation in which she only admitted conduct to one of 13 counts.

Mr. Tembeckjian said the "admission and stipulation were appropriate" particularly because "there was not enough time to finish the hearing and the commission would have lost jurisdiction anyway."

Both sides agreed that they would not make any comments which "appear" to be at odds with any of the terms of the stipulation, including Judge Shelton's admission.

Among the charges the commission agreed to withdraw but could reinstate if Judge Shelton again seeks a judgeship are charges that she:

• Mocked a Legal Aid attorney's accent and said "where is she from" and how can she be an attorney "when you cannot understand what she is saying."
• Treated two other Bronx Family Court judges rudely, one in a dispute over who was entitled to have an attorney present in her courtroom and the other over who was responsible for a case.

• Refused a directive from the Bronx Family Court's supervising judge to continue hearing newly commenced cases in the intake part after one of her court officers was assigned to another courtroom.

• Told a litigant before her that his lawyer "has mental health issues."

• Said to a litigant from the Caribbean who had multi-colored bands in his hair that he looked "bizarre . . . like someone I would not give my pet mouse to."

Irate Judge Asks Jurors,
"Anybody Else Want to Mess With Me?,"
Faces Ethics Complaint, (That'll Tick Her Off)

By John Hanna
The Associated Press
New York Lawyer
September 25, 2007

TOPEKA, Kan. -- A Sedgwick County judge faces an ethics complaint alleging she lost her temper with prospective jurors before a 2004 murder trial and asked them, "Anybody else want to mess with me?"

The Kansas Supreme Court criticized District Judge Rebecca Pilshaw's conduct in April, when it considered the appeal of the defendant in the murder case. The ethics complaint is separate and could lead to disciplinary action against the judge.

The complaint was filed by an examiner for the state's Commission on Judicial Qualifications. It became public last week when the commission notified Pilshaw that a panel planned to collect evidence and take testimony.

The commission reviews allegations of judicial misconduct and recommends potential sanctions to the Supreme Court, which has the final word. The court can suspend or remove a judge from the bench, or impose lesser or no punishment.

The complaint alleges that Pilshaw violated parts of the state's code of judicial conduct requiring judges to avoid impropriety, to perform judicial duties "impartially and diligently" and uphold the judiciary's integrity.

She has until Oct. 11 to file a response, and her attorney, Stephen Joseph, of Wichita, said she will do so. He said her behavior needs to be put into the context of what was happening in her courtroom that day.

"All I can say is the judge looks forward to being able to explain what happened and why it happened," Joseph said. "It's all based on a simple principle: The first duty of a trial judge is to control a courtroom."

The complaint stems from jury selection in the trial of Dewey A. Gaither, convicted in 2004 of shooting another Wichita man from whom he had tried to obtain drugs. He eventually was convicted of five felonies, including first-degree murder.

In its ruling on Gaither's appeal, the Supreme Court said Pilshaw yelled at prospective jurors. The court gave the following account:

One prospective juror said she wouldn't believe anything the police said. Pilshaw dismissed her from service, but ordered her to attend every day of the trial because, "You need an opportunity to be exposed more to our law enforcement personnel."

Then she asked, "Anybody else want to mess with me?"

Later, a juror said her religious beliefs made it uncomfortable for her to judge someone else and that anyone on trial must be guilty of something. Pilshaw said she thought the woman simply didn't want to serve on a jury, but had "said the magic words" to be dismissed.

Pilshaw added, "And I feel sorry for the next person that ends up going, because I am going to hit the roof, I think."

The next day, Pilshaw apologized, acknowledging that she had been "a little cranky." She told any jurors who had been selected they could leave if they felt intimidated, and two did.

"She failed to control her temper and frustrations, declined to exercise control over her conduct and utterances, and allowed prospective jurors to embroil her in conflict," Justice Eric Rosen wrote for the court.

But the court upheld Gaither's convictions, concluding Pilshaw's comments had not deprived him of a fair trial.

"We believe the judge's apology and offer to excuse prospective jurors purged the taint of the misconduct," Rosen wrote.

Controversial Local Judge Berated
Lawyer and Her Firm, Correspondence Shows

By Thomas B. Scheffey
The Connecticut Law Tribune
New York Lawyer
September 10, 2007

Judge 'Vindictive,' Judicial Panel Says

Rene Stutzman
Orlando Sentinel Staff Writer
September 7, 2007

SANFORD - When a janitor stood before Seminole County Judge Ralph Eriksson last year, unable to hear what was going on and confused about why his attorney hadn't filed some paperwork, the judge ordered him to jail.

A year later, when a 22-year-old waiter asked the same judge to recuse himself, Eriksson sent him to jail, too.

On Thursday, the state agency that disciplines judges formally charged Eriksson with official misconduct.

In those two cases, the judge was "punitive and vindictive," abusing his power to hurt men who were only trying to exercise legitimate legal rights, according to the charges leveled by the Judicial Qualifications Commission.

Eriksson, of Longwood, a judge for 12 years, would not comment.

He must now decide whether to admit to wrongdoing or fight the charges. If he fights, he would stand trial before a different panel of the same agency.

It could find him innocent or guilty. If he's found guilty, it would recommend sanctions that range from reprimand to removal from the bench.

The Florida Supreme Court released news of the charges during the lunch hour Thursday. Eriksson remained on the job at the Seminole Criminal Justice Center, handling misdemeanor and traffic cases.

He was not reassigned.

Before he became county judge, he served 20 years as assistant state attorney in the 18th Judicial Circuit -- Seminole and Brevard counties. He has been a member of the Florida Bar since 1972.

"He should be punished some kind of way," said Daniel Bradshaw, the former janitor Eriksson ordered locked up in 2006. "He sent me to jail for no reason at all."

Bradshaw, 47, from Sanford, was in Eriksson's courtroom April 6, 2006, accused of possessing marijuana and a pipe with which to smoke it, two misdemeanors. Bradshaw was on the verge of entering a guilty plea, and Eriksson had begun to recite what that would mean when Bradshaw interrupted.
Why hadn't there been a hearing to suppress evidence police had seized, Bradshaw asked the judge.

That, Eriksson said, was not his business. That was something for Bradshaw to discuss with his lawyer.

When Bradshaw complained that he couldn't hear what the judge was saying, Eriksson cupped his hands to his mouth and yelled, "Have you heard what I've said so far?"

"Yes, sir," Bradshaw replied.

Bradshaw then rejected the guilty plea, and Eriksson accused him of "interfering with the administration of justice."

Bradshaw had been free with no bail, but the judge ordered him locked up until he could come up with $5,000 bail.

"I'm going to guarantee that you'll come back for court and administer justice properly. . . " Eriksson said.

When a JQC investigator recently asked Eriksson about Bradshaw, the judge said: " 'He's kind of a pathetic little character. Kind of looked like Sammy Davis Jr.,' " according to the charging document.

Bradshaw, a 5-foot-8, 140-pound black man, described himself Thursday as disabled. He does not, he said, look like Sammy Davis Jr.

In the other case, Bob Lee Walton III, now 23, of Deltona was in Eriksson's courtroom Feb. 19 on a drunken-driving charge.

His trial was scheduled to start, but he and the prosecutor asked for a delay. When the judge said no, Walton asked for a new judge.

Eriksson granted the request but was clearly peeved. He increased Walton's bail from $3,500 to $10,000 and ordered courtroom deputies to lock him up until his family could round up the extra money.

Walton remained in custody for about 11 hours, according to the complaint.

"I don't think he should have that much power," Walton said Thursday. "It was ridiculous. I was flabbergasted -- I'll tell you that."

Dickensian Discipline:
Judge Reprimanded for Jailing Couple Over Debt

By The Associated Press
New York Lawyer
September 7, 2007

WINSTON-SALEM, N.C. -- A District Court judge who ordered a couple jailed last year over money owed to a landlord has been reprimanded by the N.C. Judicial Standards Commssion.

Talking to Client in Court
Costs Lawyer, $5,00, 1 Year Probation

New York Lawyer
By The Associated Press
August 27, 2007

              Intemperate Judges Tarnish Justice System
                                       Our Opinion:
    Broward Bench's 'Rough Patch' Needs Effective Reforms

Editorial
Miami Herald
May 6, 2007

Maybe Gerald Kogan, a former Florida chief justice, is right. Maybe Broward County's judicial bench is just going through ''a rough patch.'' Or maybe the serial missteps by Broward judges is part of an endemic problem -- say a lack of diversity in Broward courts, or insularity in a county where judges rarely face reelection challenges.

Whatever the cause, the buck stops with Chief Judge Dale Ross. He must take steps to repair Broward courts' tarnished image caused by errant judges or make room for a leader who can. The latest gaffe comes from Criminal Administrative Judge Charles Greene. After a jury delivered a not-guilty verdict in an attempted first-degree murder case in April, the judge made a remark that court insiders link to minorities and others considered less than equal in the eyes of the law. The case, which involved a black defendant, black victims and a black witness, is an ''N.H.I.,'' Judge Greene told lawyers.

''N.H.I.'' is shorthand for ''No human involved,'' a phrase from the 1970s used to describe why some crimes against prostitutes and gay and black victims were not pursued as vigorously as those against white victims. On Monday Judge Greene lamely explained that he was describing how the jury regarded a witness' testimony. That doesn't wash, coming from a seasoned criminal-trial judge in a justice system known to have its biases on occasion. Later, seeing the harm this insensitive comment could do to criminal courts' credibility, Judge Greene asked to be reassigned.

Before this incident, there was Circuit Judge Lawrence Korda's request to be reassigned after he was arrested in a public park for allegedly smoking pot. Also, there was Circuit Judge Larry Seidlin's media-inspired melt-down while presiding over proceedings to decide where Anna Nicole Smith's body would be buried. Circuit Judge Cheryl Alemán is fighting misconduct charges for alleged mistreatment of attorneys and defendants. And Judge Ross did himself no favor when he pleaded ignorance last year to the practice of some Broward judges to conceal court cases on secret dockets. The Florida Supreme Court subsequently barred use of secret dockets.

After several Broward judges were accused of making racially and ethnically offensive remarks, Judge Ross last June ordered all judges and magistrates to attend sensitivity training. Some balked, which doesn't reflect well on his authority. Judge Ross took the course, but still made sarcastic comments about Hispanics and rap music at a March hearing. Hello, Broward judges: This is the 21st century in diverse South Florida. If you can't handle these realities with respect and dignity for all, get another job.

Broward Judge Is Chided for `Ruse'

By Nikki Waller
The Miami Herald
April 25, 2007

The state's judicial watchdog agency has fired back at Broward Circuit Judge Cheryl Alemán, who faces misconduct charges for her treatment of attorneys and defendants.

In a motion filed by her attorney earlier this month, Alemán asked the Judicial Qualifications Commission to dismiss the charges against her, calling them ''dangerous'' and claiming the commission unfairly targeted her rulings in certain cases.

In papers filed Wednesday with the Florida Supreme Court, the commission staunchly rejected Alemán's argument and asserted its right to discipline judges for making improper rulings, which it has accused Alemán of doing.

The strongly worded response to Alemán's request for dismissal called her strategy ''a poorly disguised ruse'' and restated that her behavior ``diminished public confidence in the judicial system and warrants discipline.''

The JQC initially filed charges against the judge in February, alleging that her treatment of some defendants and attorneys violated judicial codes of conduct.

Among other charges, the JQC said Alemán improperly jailed an attorney for missing hearings in her court when she allegedly knew he was out of town and unable to appear; and she declined to furlough an inmate dying of AIDS, despite recommendations of prosecutors and defense lawyers.

If she decides to challenge the charges, Alemán must go before a hearing panel to argue her case.

If Alemán loses, the full panel of the Florida Supreme Court could decide to remove her from the bench or impose other penalties, such as a fine, a reprimand or a suspension.

Reporter Held in Contempt
 for Using Phone Camera in Court

By Curt Anderson
The Associated Press
New York Lawyer
March 16, 2007

A Uruguayan television news reporter pleaded guilty Thursday to contempt charges for illegally using a cell phone camera inside a U.S. courthouse, where cameras are banned.

Martin Sarthou, a reporter for Teledoce in Uruguay, got the camera past security at the Miami courthouse and used it to film extradition proceedings in October 2006 involving Juan Peirano Basso, who is accused in Uruguay with taking part in an $800 million banking scandal involving institutions in Uruguay, Argentina and Paraguay.

The resulting images were broadcast on Teledoce, including pictures of Peirana being led into court in handcuffs and leg shackles, according to court documents.

Peirano's lawyers said they warned Sarthou not to use the images, but they were broadcast anyway as "unique, exclusive photos" in a report.

"The entire presentation was used to disparage Mr. Peirano in the eyes of the Uruguayan public," said Peirano lawyer Joseph A. DeMaria in court papers.

But according to a translated script, Sarthou said the network "deemed it important for viewers to have access to these images" and see the extradition proceedings for themselves.

Sarthou was fined $1,000 by U.S. Magistrate Judge Ted Bandstra and ordered to stay out of federal courthouses in Florida's southern district for one year.

Uruguay's extradition request for Peirano is still pending. He was arrested in the United States last May and his three brothers all were arrested in 2002 in Uruguay during an economic meltdown in several South American countries.

Teledoce issued no statement.

Threat by Judge

By Dareh Gregorian
New York Post
January 25, 2007

A Manhattan Supreme Court justice threatened and intimidated a lawyer for bringing a legal malpractice case against another attorney who's now a judge, explosive court papers charge.

The unidentified jurist "lashed out, in tone, words, gestures and fiat" as she warned Ravi Batra that he would never win another motion or case in Manhattan again because of his lawsuit against now-Judge George Silver.

Batra made the accusation in a motion to move his case to Staten Island.

His malpractice suit was filed on behalf of a woman named Margherita Merola, who's suing Silver and his former law partner, Steve Santo. She accused them of fumbling a lawsuit and then trying to cover it up with faked court documents.

The Manhattan District Attorney's Office is looking into the intimidation allegations and the cover-up charges, sources said.

Batra and a spokeswoman for the DA both declined comment.

Silver and Santo's lawyer, Mark Housman, called the charges "vague and nonsensical," and said he was unaware of any investigation by the DA.

The Post reported the cover-up allegations in Merola's case in October.

The Staten Island mom said Silver and Santo tried to con her into thinking they were working on the wrongful-death suit she'd filed on behalf of her dead son by sending her official-looking papers - even though no lawsuit was ever filed.

Final Appeal Rejected -- Judge Sloop Turns in Key
The State Supreme Court Refuses to Reopen the Seminole Judge's Case, Ending 16 Years of Service

Rene Stutzman
Sentinel Staff Writer
January 5, 2007

SANFORD FL -- Hours after the Florida Supreme Court on Thursday rejected one final legal maneuver by Seminole County Judge John Sloop, he was formally removed from office.

Sloop, 58, surrendered his key to the Seminole County Courthouse, had his security pass canceled and left the building for the last time as a judge.

He had served for 16 years.

Sloop is the judge who two years ago ordered 11 people jailed for going to the wrong courtroom by mistake. They had been directed there by faulty paperwork or confused courthouse personnel.

Although a deputy and two judges told Sloop it was all a mix-up, Sloop refused to order their release. It wasn't until about three hours later, after two other judges had begun working to free them, that Sloop changed his mind.

All 11 were strip-searched and remained locked up for about eight hours.

Sloop originally said he didn't understand the public uproar over his actions. But he later tried to explain them, saying he was suffering from an undiagnosed case of attention-deficit-hyperactivity disorder.

The Florida Supreme Court on Dec. 7 rejected that defense and ordered him off the bench, saying he was abusive and unfit to serve.

Sloop's final appeal, the one rejected Thursday, centered on the ADHD diagnosis. He asked the high court to reword its removal order and officially declare him disabled, a move that would have nearly tripled his pension benefits. Without comment, the court voted unanimously not to reopen the case.

And with that, Sloop's judicial career came quickly and quietly to a close. He left the old downtown courthouse midday, leaving behind a few personal items.

Deputies were told that, as of 5 p.m., he no longer would have access to secured areas of the building. His official removal, though, would not come until seven hours later, at midnight, according to an e-mail from Chief Judge Tonya Rainwater, who heads the 18th Judicial Circuit, which includes Seminole and Brevard counties.
Sloop returned a phone call Thursday to the Orlando Sentinel but hung up without comment.

His lawyer, Damon Chase, said Sloop was not surprised by Thursday's high-court decision and was "doing great."

Sloop has had job offers from several law firms, Chase said. He would not identify them.

Sloop kept his right to practice law.

For prior articles on Judges Who Reign in Their Courts click here

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