I so far covered misconduct of judges Michael V. Coccoma - elevated instead of punished, John Lambert - elevated instead of punished and Brian Burns - also elevated instead of punished (for his role in Anthony Pacherille's case).
I wrote recently about Anthony Pacherille's case and compared it to the presiding judge's extremely lenient decision in favor of the rich and powerful defendant who killed one person (a poor person) and injured her child.
In this blog, I will continue providing the description of Burns' misconduct and providing documentary evidence of that misconduct in regards to the mentally ill minor child Anthony Pacherille who was sent to a maximum security prison because Burns was pissed by a letter of compassion sent to him as a part of regular pre-sentencing procedure by the child's father.
Here is the timelines of the Pacherille case:
March 24, 2010 - Anthony Pacherille turns 16, that does not make him an adult under New York law, but it does take him outside of the juvenile delinquency statute, which is illogical, because the Family Court act covers children under the age of 18 in custody and child neglect proceedings.
April 2, 2010 - the shooting occurs on a Good Friday. Anthony Pacherille is a Catholic, and the victim Wesley Lippitt, according to Anthony Pacherille's father, relentlessly taunted him because he was a Catholic.
April 30, 2010 - the indictment of Anthony Pacherille, 16, is announced in the press.
January 6, 2011 - Burns is sworn in for another term of 10 years and parades his three teenage children before the entire Cooperstown community in an open-court ceremony where anybody can see his children and wife
April, 2011 - Burns coerces a mentally ill teenager, Anthony Pacherille to plead guilty to a B felony attempted murder, with an element making it a hate crime under Article 485 of penal law - instead of reducing the case to a misdemeanor and granting the child a YO status, which was well within the court's discretion.
The child, according to his father, was intimidated by a threat of being sentenced for 20 years instead of "just 11 years" in prison, into lying that race was a motivating factor in shooting the person who, according to the father, was relentlessly bullying the child for years in school, with nobody helping the child or holding the bully accountable.
Burns refused to consider that evidence.
June 1, 2011 (6 months after the swearing-in ceremony) - Anthony Pacherille's father writes to the judge and asks, as a father of a teenager to a father of a teenager, to consider that a teenager cannot be held accountable the same way as an adult is, because his mind is not the same of an adult yet.
July 22, 2011 - Burns refuses to give YO status to the child and sends the child to prison for 11 years.
August 5, 2011 - Burns files a sworn deposition admitting under oath that he felt intimidated by the father's letter sent for purposes of sentencing leniency on June 1, 2011.
Let's once again look where Burns sent the child.
Here is the information about Anchony Pacherille from the NYS Department of Corrections that I checked today:
By the way, Anthony Pacherille was born on March 24, 1994, and his crime was committed in April of 2010.
The shooting occurred on the Good Friday in 2010, which was April 2, 2010.
That means that, had the shooting occurred 9 days (!) earlier, Anthony Pacherille could not be prosecuted as an adult, but only as a juvenile delinquent under Article 3 of the New York Family Court Act. His age, that he JUST turned 16 at the time of the shooting, HAD to be considered for purposes of the YO status.
Even now, the New York Legislature is considering a bill pushing criminal liability age up towards the real adulthood, which is only reasonable.
If Anthony Pacherille is a minor child for purposes of child custody, he cannot be considered an adult for purposes of criminal liability.
I can only hope that, if adopted, this legislature will be declared to have a retroactive effect and cover Anthony Pacherille - not that the harm of a child being tried, convicted and sentenced as an adult and spending over 4 years by this time in a maximum security adult prison will ever be undone.
The information shows that the crime he is incarcerated for is "attempted murder 2nd", a Class B felony.
When Judge Burns coerced Pacherille to state at the plea bargaining that he committed the crime because of the race of the alleged victim, the attempted murder 2nd also became a hate crime pursuant to Penal Law 485.05 that is attachable to a conviction of attempted murder under Penal Law 125.25.
PL 125.25 is an A felony. An attempt under this section is one grade lower, a B felony.
Note that under PL 125.25 it is an affirmative defense that:
"(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime".
There is no question that Anthony Pacherille was acting under the influence of an extreme emotional disturbance - as evidence by his attempt to shoot himself after shooting at the victim. The father provides claims on his website that the victim was allegedly cruelly taunting Anthony Pacherille at school for years, and finally the mentally ill boy snapped, which would be a reasonable explanation or excuse.
I think it was a mistake of epic proportions for the boy's attorney to accept such a plea instead of proceeding to trial.
It was certainly a mistake for Burns as a sentencing judge not to consider this emotional disturbance and victim's contributing behavior at the sentencing, and that mistake was apparently deliberate, because Burns wanted to take his own personal vendetta against the father of Anthony Pacherille on the child, and did that, so far with impunity.
At the time of sentencing, Burns never revealed that he felt intimidated by the letter of the father sent to Burns before sentencing of Anthony Pacherille and seeking compassion from Burns by pointing out that Burns himself is a father of a teenage boy.
Burns received 60 letters from members of the community before sentencing of Anthony Pacherille, all asking him to grant Anthony a youthful offender status, which the judge had to consider as a matter of statute.
All of those letters, including the father's letter, were pre-screened by Anthony Pacherille's attorney who obviously did not see anything wrong in the letters forwarded to the judge.
The father's June 1, 2011 letter, reportedly, stated this: "As a father of a boy Anthony's age, I hope you are able to see that a 16-year-old boy's mind is underdeveloped and perplexing, even in the absence of mental illness".
What the father said in 2011 was echoed nearly word for word by the dissent of two judges on the New York State Court of Appeals in 4 years' time, in May of 2015.
Burns proceeded to sentencing the child and denied the YO status to Anthony Pacherille. Once again, Anthony Pacherille was a minor child of 16 at the time of commission of the offense and a minor child of 17 at the time of sentencing.
At no time during the sentencing that occurred in July of 2011, did Burns reveal that he was upset by the father's June 1, 2011 letter.
Once again, here is the "letter timeline":
June 1, 2011 - the Pacherille father writes the pre-sentencing letter to Judge Burns that his son's attorney submits to Judge Burns along with other 59 letters from members of the community, which is a regular pre-sentencing procedure.
On July 22, 2011 Burns presides over sentencing of Anthony Pacherille without disclosure that he felt PERSONALLY intimidated by the father's letter.
On August 5, 2011 Burns submits a deposition under oath pressing charges against the Pacherille's father.
Burns knows exactly what he is doing, and timed his submission deliberately. Had he submitted his deposition before the sentencing, he wouldn't be able to preside over the sentencing, as his feeling of intimidation would then be known.
See how Burns describes, under oath, in his own words, just how upset he was, in his deposition submitted to the police pressing criminal charges against the father:
So, Burns, in his own words, perceived the father's letter asking judge Burns, as a father of a teenage son, for compassion in the sentencing of Anthony Pacherille, a teenager, as a plea of a father to father, as an attempt to inform Burns that Pacherille knew Burns "had a male teenage child." Because of that, Burns "found this to be very inappropriate and intrusive". Burns felt that, through that letter, the father of Anthony Pacherille was attempting to intimidate Judge Burns by "letting him know that he knew about the judge's personal life and family".
Burns had to disclose such feelings BEFORE the sentencing and step down from it, as was required by rules of judicial conduct.
Instead, Burns prepared and made this passionate speech against the teenage boy, obviously retaliating against the boy for his father's letter.
Here is Burns' speech at the sentencing of the child, Anthony Pacherille:
Quote:
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In preparing for today's proceedings, I have reviewed the Pre-Sentence Report which the law requires the Otsego County Probation Department to submit, including a summary of the statements Anthony Pacherille made to the probation officer. I've also reviewed the written statement submitted by the victim, Wesley Lippitt. Further, I have received and read a number of letters submitted by defense counsel in support of his client. I have further reviewed the psychiatric reports submitted by defense counsel. I have also read the defendant's Sentencing Memorandum wherein he asks to be sentenced as a Youthful Offender. I have carefully considered all the information provided to the court, as well as the comments made by the District Attorney, victim, defense counsel, and defendant today.
I will now set forth my reasons for accepting the plea bargain that the parties entered into so that Anthony Pacherille and the public know and understand those reasons.
Let me preface my remarks by stating that my reasons for accepting the plea bargain are not to be taken as an expression of my judgment of Anthony Pacherille as a person. It is not my place and beyond my power to do so. Rather, my judgment is of Anthony Pacherille's conduct _ the conduct he has acknowledged.
On April 2, 2010 Anthony Pacherille attempted to murder Wesley Lippitt by shooting at him not once, but twice, and then he turned his weapon on himself. In Anthony's own words, he chose to attempt to murder Wesley Lippitt because Wesley Lippitt is an African American. Racism is an ugly and hateful belief and most decent well-meaning people find it hard to believe that a neighbor or friend such as Anthony Pacherille could harbor such beliefs. Based on the numerous letters I received in support of Anthony Pacherille, is .clear to the court that many people simply refuse to believe Anthony's sworn statement that he chose to attempt to murder Wesley Lippitt because he is an African American. It would be easier to believe Anthony Pacherille's actions were caused by mental illness, or any other reason, except for racism. But to blame Anthony Pacherille's actions on anything but racism is to ignore his own statements, and the reality of Anthony Pacherille's experience. Nevertheless, the authors of the letters of support, some of whom are known personally to the court, repeatedly asked the question "why?" Why would Anthony want to kill Wesley Lippitt, and why would Anthony want to kill himself? They describe Anthony as a quiet, shy, gentle person. A loving son and brother. A valued member of his church and his community. All those things may be true. But there is another side to Anthony which he admits he didn't share with his friends and family. Anthony Pacherille did, however, want this other side of his personality to be known. He wrote a letter explaining his beliefs and the reasons for his actions on April 2, 2010. The following are Anthony's word from a letter which was produced and entered into evidence before the Grand Jury. They are not the words of the District Attorney or other law enforcement officer. This is what Anthony wanted people to know about himself that he had never told anyone about before April 2nd. Anthony Pacherille wrote "I don't even want to live in this world. Niggers and Jews will bring this country down but no one seems to see it coming. All of these social parasites _ Niggers, Jews, Mexicans, South Americans. The Nazis were the last chance to secure the power of Europe and the white race. I don't want to live in a world where there is no white majority. The meaning of life died when Europe's power declined and fascism failed. There is no point in living. I can no longer sit here and watch the blacks and Jews taking over everything that white people created. The damn Jews and Niggers have won. My last words will be Hitler lives."
Anthony Pacherille wrote these words because he wanted everyone to know why he wanted to kill himself and these words clearly explain why he wanted to kill Wesley Lippitt. It has been argued that his attempted murder of Wesley Lippitt was a one-time aberration caused by his mental illness, and that Anthony presents no danger to the community. These arguments ignore the facts and are not valid
At his request, I've thoroughly reviewed the psychiatric reports submitted by Anthony in preparation for today's sentencing. Because Anthony has made what otherwise might have been confidential information part of the record, I 'will refer to the portions of the reports that I find are relevant. In June of 2010, Anthony saw a psychiatrist and related to the doctor that he felt superior to the other kids at school. He also felt lonely because he was not close with anyone in his family, particularly his father. He was seen again in September of 2010 by a different psychiatrist. Anthony related to this doctor that he felt that he was better than his classmates and that he was more intelligent than most people. He told this doctor that on a day in question he knew exactly what he was doing. In fact, he stated that he went back and forth between the car and the house several times before deciding to drive to Main Street and attempt to murder someone before killing himself. This doctor also specifically asked Anthony questions about his potential future conduct. He absolutely denied having thoughts of trying to killing someone else in the future _ except when he is irritated. When asked what he would be doing if not in jail he told the doctor he was afraid that "something would happen again, something bad."
In March of this year, Anthony met with a psychiatrist that he retained. The psychiatrist reported that Anthony sees himself as having been unjustly blamed for other people's problems. Anthony acknowledged to him that he may physically attack others when angry.
Finally, in May, 2011, just 2 months ago, Anthony met with a representative from the Otsego County Probation Department. His attorney was present during the interview. During this interview, Anthony acknowledged that he is to this day anti-Semitic, anti-Muslim, and pro-fascist. In short, Anthony's views have not changed from before the shooting until the present day. In addition, none of the doctors who have evaluated Anthony state that his racist and bigoted views are a product of his mental illness, or stated that Anthony Pacherille attempted to murder Wesley Lippitt because of a mental disease or defect. That's not to say, however, that Anthony does not suffer from mental illness. It is clear that he does. The scope and severity of Anthony's mental illness has been an issue throughout these proceedings. The reports Anthony submitted speak of depression, anxiety, and possible bi-polar disorder, and a narcissist personality disorder. Anthony's defense attorney initially claimed that Anthony was so mentally ill that he needed to be immediately moved to an in-patient psychiatric facility. During the pendency of the proceedings, he further claimed that Anthony was not responsible for his conduct due to mental disease or defect. The court repeatedly scheduled hearings to give Mr. Pacherille to opportunity to demonstrate the extent of his psychiatric needs. Defense counsel repeatedly asked for these hearings to be adjourned and ultimately withdrew them altogether.
It is a given, of course, that someone who is very seriously mentally ill may not make choices in their own best interest. The court wanted to be assured that Anthony was competent to make decisions in this case. Accordingly, the court, on its own, ordered a competency evaluation under Article 730 of the Criminal Procedure Law. This is an independent evaluation, submitted directly to the court. It is intended to be free from any advocacy interest of the defense counsel or the prosecutor. The independent evaluation determined that Anthony Pacherille had an appreciation for the nature and the severity of the criminal charges pending against him. He further had an appreciation of the nature of the possible consequences if he were convicted, or entered a plea of guilty, to some or all of the charges. He was competent to appraise the availability of the defenses that were legally available to him. He had the ability to plan a legal strategy with his defense counsel. He had the ability to cooperate with his attorney and to assist in his defense. Finally, Anthony Pacherille understood the court proceedings, including the roles of the Judge, the Jury, and the District Attorney. in short, after considering these independent evaluations, as well as the other evidence in the record at the time the defendant entered his plea, the court found that the defendant was unquestionably competent to stand trial in this case and equally competent to enter a plea bargain. Significantly, he was competent to evaluate, and withdraw, his claim that he was not guilty of the crime due to a mental disease or defect.
The court approved the plea bargain after a careful consideration of the seriousness of the crime Mr. Pacherille committed, its impact on the victim and the community, Mr. Pacherille's age and mental illness, and the possibility for rehabilitation. This consideration started off with the understanding that murder is the ultimate crime. When attempted murder is motivated by racial bias, as Mr. Pacherille has admitted, this crime also strikes at the heart of society. There can be no question but that our nation has a troubled history of racism. Nor can there be any question that our nation is devoted to the ideal and philosophy that all people are created equal and that their worth is not determined by the color of their skin. This ideal of equality and opportunity is the beacon that draws people from all over the world to America. When Anthony Pacherille chose to kill Wesley Lippitt because of Wesley's racial heritage, his conduct reverberated far beyond Wesley and his family and has impacted the entire community.
So the response from the community to this crime must be as serious as the crime itself. It must include a lengthy period of incarceration so that it is clear racist and bigoted views are rejected in their entirety. A lengthy period of incarceration is also necessary so that Wesley Lippitt knows that he is a valued member of our community and that his scars, both internal and external, are not and will not be forgotten. A lengthy period of incarceration is necessary to repudiate Mr. Pacherille's views and to denounce the concept that one race of people is inherently superior to another. Justice for Wesley Lippitt, and for the community, requires nothing less.
But it is also true that our system of justice requires a consideration of the defendant's individual circumstances. Anthony Pacherille is a teenager and perhaps lacks maturity and experience to appreciate how destructive his views and actions are. In addition, Anthony Pacherille undoubtedly suffers from one or more mental illnesses. His psychological needs, coupled with his age and the possibility of rehabilitation, are mitigating factors that justify a deviation from the maximum sentence. I approved a reduction from the 25 years he could have received had he gone to trial and been convicted, to less than half _ 11 years _ with credit for the year he has already served. Although Mr. Pacherille's psychological needs are a mitigating factor to be considered in determining the length of his sentence, it must be noted that his mental illness does not justify his conduct or excuse his actions in attempting to murder Wesley Lippitt. To suggest otherwise does a grave disservice to the approximately 40 million Americans who suffer from some form of mental illness at any given time and who do not commit acts of extreme violence and hatred. Let me be clear _ depression does not cause racism. Anxiety does not cause anti-Semitism. A Bi-polar disorder does not cause pro-fascism. And none of them cause a person to attempt murder.
Even though Anthony Pacherille agreed to plead guilty, as an adult, and serve an 11 year sentence in return for the District Attorney reducing or dismissing every charge against him, he now asks the court to vacate (that is essentially erase) his conviction and sentence him to little or no additional jail time as a youthful offender.
The court has considered this request and denies it. Due to the violent nature of the crime and its resulting harm, and Mr. Pacherille's admission during the plea allocution that his actions were racially motivated, the court cannot say the interest of justice would be served by granting youthful offender status or by not imposing the agreed upon sentence.
Based on the foregoing, it is the ORDER of the Court that Anthony Pacherille serve a determinate period of incarceration in the New York State Department of Corrections System of 11 years; it is further
ORDERED that he provide a sample of his DNA for inclusion in the State Registry, pay a $50 collection fee. He is further required to pay a total of $320 Crime Victim Assistance Fees and Surcharges. The court is further entering an Order of Protection which prohibits Anthony Pacherille from having any contact either in person or by mail or any other means with Wesley Lippitt. The defendant is to receive appropriate psychiatric and mental health treatment during the course of his incarceration. He is to receive credit for the time he has already served in jail against his prison sentence. Although the defendant gave up his right to appeal his conviction, he has 30 days from today's date to file a Notice of Intent to Appeal if he wishes to do so. His attorney will advise him of the steps necessary to make an appeal. In closing, I would extend these final words to the families and friends of these two young men. Anthony Pacherille has taken responsibility for his actions by pleading guilty. He will now face the consequences for the harm he has caused. Let the misguided hatred he held in his heart end here today. Let each family and this community have closure so that some measure of healing can begin. No one will gain anything by a continuation of the actions that have exacerbated the conflict and strife that have divided this community.
This constitutes the Order of the Court and concludes this proceeding.
Unquote
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In all the lengthy speech which Burns claimed he prepared after "thorough consideration" of all individual factors, Burns did not reveal the main "individual factor" - his feeling of intimidation by the father's letter which can well be perceived as creating an impermissible bias in the judge and stripping the judge of his authority to exercise discretion in whether to grant or not to grant the Youthful Offender status.
Yet, Burns' untruthfulness does not stop here.
In his deposition sworn to on August 5, 2011 pressing for criminal charges against Pacherille's father, Burns lied by implying that
Pacherille's knowledge about Burns' "personal life and family" and that Burns "had a male teenage child", demonstrated in Pacherille's letter, was something unusual.
Cooperstown where events were occurring and where the court is situated is a small rural community.
When Judge Burns brought his entire family with THREE children and a wife to his swearing-in testimony, the pictures of his children were published by media sources and blogs at the time of swearing in, and, upon my information, Burns did not sue to take those reports down for privacy sake.
Here is a portion of Brian Burns' judicial biography from the website of New York State Unified Court System.
It shows that Burns was first appointed to the County Court bench in 2001, and was re-elected in 2010, to serve a new term of 2011 to 2020.
Anthony Pacherille was charged in Burns' first term and convicted in Burns' second term, that started in January of 2011.
This is a report about the swearing-in ceremony of Judge Burns in his second term, that occurred on January 6, 2011, during the pendency of criminal proceedings against the teenage child, Anthony Pacherille.
Burns brought his entire family to the ceremony that was held in open court.
The signature under the picture reads that Burns' wife Elizabeth holds the Bible while their three children, Meg, Kevin and Tony, look on.
It is obvious that all three children are teenagers or close to that age, and that the two boys are definitely teenagers.
The picture was taken and published in January of 2011.
The father's letter was written on June 1, 2011.
It is most definite that the father of Anthony Pacherille did not have to search far and wide to learn about Judge Burns' "personal life and family", or that he knew that Judge Burns' was the father of "a teenage male child", as Burns claimed in his sworn deposition of August 5, 2011.
So, Burns lied to the public when he said he considered all circumstances for the sentencing, because the main circumstances he did not reveal is his personal feelings against the child's father that mandated Burns' recusal.
Burns did recuse - but only after he sentenced a mentally ill child to 11 years of prison, in retaliation against the child's father plea for compassion.
Unfortunately, the description above and in the previous blog about Anthony Pacherille's case, Part I, is not the end of Burns' misconduct in regard to the Pacherille family and abuse of the court system.
I will continue to report on this case and appeal to the public to demand discipline against Judge Burns.
Here is the photo of the man who has sent a mentally ill child to a maximum security prison for 11 years in retaliation for a plea of compassion from his father.
Know that this man is a coward and a liar, that he is a dishonest person who arrogantly wastes taxpayers' money and abuses his power and voters' trust in utilizing the court system to promote personal vendettas instead of doing what he was elected to do - justice.
I did report some good decisions of Judge Burns on this blog, and I did distinguish him as a better judge, as compared to other judges in the area.
After having researched the Pacherille case and the related criminal and federal civil rights proceedings, I take those words back.
This man is a coward, a liar, an abuser of the court system, and does not belong either on the bench or among attorneys.
Demand punishment for this man.
Demand taking this man off the bench. He does not belong there.
Demand stripping this man of his law license. He does not deserve it.
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