"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Tuesday, March 21, 2017

Leniency to judges investigated for crimes: #DelawareCountyFamilyCourtJudgeGaryRosaTheCoward shines in denying brother-of-a-judge protection from #JudgeFrankLabuda

I wrote previously on this blog, here and here, about the criminal investigation against Sullivan County (NY) Judge Frank Labuda who was accused by his own brother Peter Labuda of running the brother over on the judge's all-terrain vehicle (ATV) causing Peter Labuda grave injuries (broken ribs).

The incident reportedly happened on September 25, 2017, reportedly in front of witnesses.

Yet, the judge was not indicted yet - and I doubt that he ever will be - because he is a judge.

If anybody else would have trespassed on Peter Labuda's property over his objection, and then "accidentally" run him over in his ATV causing broken bones, he would have been in jail by now and indicted for a trespass and a felony assault.

But, not so when the alleged assaulter is a County judge.

The local state police refused to conduct a field sobriety test or force Labuda into a chemical (blood) test, through a warrant if necessary.

The local prosecutor recused, turning the case over to the New York State Attorney General (who, by law, is also acting as the judge's own attorney in civil rights proceedings - Public Officers Law Section 17).

The New York State Attorney General reportedly attended the trial in Family Court, in the Family Offense (Family Court Act Article 8) petition that Peter Labuda filed in Family Court, obviously upset that the criminal investigation of his brother-judge gets nowhere.

Yet, as impatient as Peter Labuda was to get justice against his brother, he may have shot himself in the foot by having filed the Family Offense petition.

First, one of the most cowardly of judges, Gary Rosa, was assigned to the case.  Rosa would not rule in a way that would amount to a political misstep at any time, that has been already proven time and again.

Second, there is no jury trial in Family Court, so Gary Rosa was the only factfinder in the case.

To expect that Gary Rosa would have rendered anything than a politically motivated decision in this politically charged case where, extraordinarily, NYS Attorney General's office was present during a Family Court trial, was obviously futile.

Here is the decision of Judge Gary Rosa, made on March 8, 2017 dismissing Peter Labuda's family offense petition against his brother.  I will review it in detail below.

Third, the decision of Gary Rosa most likely will have the so-called "collateral estoppel" effect upon criminal proceedings.  If a judge could not find even by preponderance of the evidence that Judge Labuda did anything entitling his brother to an order of protection, then, most likely, there will be no indictment at all, as the prosecution will argue that there is no way to hold Judge Labuda to a higher standard.

So, how did Judge Rosa arrive to his extraordinary findings that the petition needs to be dismissed because both Peter Labuda who had the audacity to prohibit his brother-judge to trespass and ride his ATV on Peter Labuda's property and was "accidentally" run over for it on the ATV, and judge Frank Labuda whose alcohol level at the time of the "accident" the state police refused to check, a 71-year-old man (Peter Labuda) and a 69-year-old man (Frank Labuda) were simply acting as "arrogant adolescents", nothing more?

Let's look.

First, Judge Rosa confirms injuries that Peter Labuda did suffer - broken ribs and broken "fibula" bone requiring 48 hours of hospitalization:

Rosa then confirms that there was a conflict between the brothers prior to the incident of September 25, 2016 when Judge Frank Labuda refused to talk to his brother Peter Labuda in a coffee shop in town for a supposedly unknown reason.

Then, on September 25, 2016, Peter Labuda forbid Frank Labuda to ride his ATV on Peter Labuda's property.

Frank Labuda, claiming he has a "right of way" - which Judge Rosa confirms was not established at trial by documentary evidence (there was no right of way in the deed for Frank Labuda to cross over Peter Labuda's property) trespassed on Peter Labuda's property over objection of Peter Labuda.

Of course, Judge Rosa avoids at all costs to call that conduct a "trespass", because trespass is both a tort and a criminal offense, and especially a trespass that resulted in serious injuries to the objecting landowner.

Surprisingly, Rosa reflected in his decision the "investigation" by the police that was obviously meant to produce as little incriminating evidence against Judge Labuda and give Judge Labuda as many loopholes to break criminal charges against him as possible.

  Here is how these discrepancies look in a table format, with comments, for clearer view of why Peter Labuda was concerned about lack of impartiality in the investigation:

Police interview of Peter Labuda
Police interview of Judge Frank Labuda

Consequences of interview techniques

How many people interviewed

See below
Did Chief of Police participate in the interview? Y/N

Absence of Chief Blake Muthig at the interview of Judge Labuda shows that the emphasis was put on the interview of the victim, and not of the judge, and that the complaint against the judge was not taken seriously; also Chief Muthig may have distanced from the investigation of judge Labuda because Chief Muthig obviously knew the judge personally and relied on the judge in the past and in the future to sign warrants presented by Chief Muthig to the judge – under such circumstances Sullivan County police should have recused from the entire investigation instantly and allowed a neutral investigator to handle the investigation from the very beginning.

Who specifically interviewed

Chief Blake Muthig
Lieutenant Pratti
Detective Sergeant Peter Ramos

Lieutenant Pratti
Detective Sergeant Peter Ramos

See above
Place of interview

Judge’s own home

Peter Labuda was hospitalized for only 48 hours, and may have been in pain and discomfort when interviewed by the police for 1.5 hours; the police obviously could have waited for Peter Labuda to come home before being interviewed, but did not do that, while Judge Labuda was given the deference of having being interviewed in the comfort of his own home.

The length of the interview

1.5 hours
0.5 hour
It is obvious that the interview of the victim was more detailed and vigorous (aggressive) than the interview of the alleged offender (judge), showing potential bias of the investigators in favor of the alleged offender/judge.

Was the interview video or audio recorded? Y/N

Not audiotaping or videotaping the interview gave Judge Labuda, but not his brother, an opportunity to impeach police officers testifying about the contents of his statement to the police

Who wrote the statement?

Detective Ramos
The subject of the interview, alleged offender/judge

Miranda warnings reflected in written statement? Y/N

Not recording Miranda warnings gave Judge Frank Labuda an opening in the future potential criminal proceedings to claim that his statement was involuntary and in violation of his Miranda rights, and allowed Judge Labuda, but not his brother, a chance to deny contents of certain statements and that he made statements under coercion

And here is where the lying-to-fix-the-case starts:

Since the Sheriff's office obviously knew Judge Labuda personally and depended on his good graces in signing search and arrest warrants for the police - and thus absolve them of monetary individual liability for potential civil rights violations involved in such searches - his entire office was disqualified from handling the investigation.

When an investigator is partial and should be disqualified, investigator's "discretion" no longer is a valid argument, and investigator's use of "discretion" no longer applies.

Yet, Rosa continued to pretend that "the decision to test or not test respondent for the presence of alcohol lies within the discretion of the sheriff's office".

Rosa uses the fact that Judge Labuda was on private property (while not saying that he was trespassing on his brother's property over his brother's direct and clear objection) in Judge Labuda's favor, that he was not on public highway.  That does not eliminate the necessity and the right of the police to compel the alleged suspect of a vehicular assault, through a judicial warrant, if necessary, submission to a chemical test to verify what role, if anything, alcohol or illegal drugs may have played in incident.

That was not done, and this interesting use of "discretion", which Rosa admitted was "in deference" of the criminal suspects status of a judge, should have been used as bias and interpreted against judge Labuda and against credibility of police witnesses - but obviously, it wasn't by Judge Rosa.

Rosa's decision also reflects that Judge Labuda was upset that his brother's daughter (Judge Labuda's own niece) and his brother's girlfriend (an attorney) notified local newspapers of the incident.  That shows two things:

  • first, that the judge, more than anything, is upset about publicity surrounding the case.  He obviously would not care one bit presiding over a criminal case where the local police would publicize the case and thus potentially jeopardize rights of any other criminal defendant to a fair trial and an untainted jury pool.  When it concerned Judge Labuda personally, the perspective changed, and he complained about it - a complaint that even the chicken Gary Rosa considered as irrelevant to the proceedings. 
  • Second, but implicating his brother's girlfriend (an attorney) in his complaint, judge Labuda potentially threatened her and her law license, in a not so subtle way.  I will continue to monitor this female attorney's fate for some time to see if she would suffer any repercussions after this incident, after daring to complain about the judge, sue the judge in Family Court for Family offense petition, and notify local newspapers about the judge's misconduct.

Then, Gary Rosa engaged in analysis of underlying criminal statutes that, if violated (under the more lighter preponderance-of-the-evidence standard in Family Court proceedings) would have entitled Peter Labuda to the only remedy a Family offense petition in New York Family Courts would afford him - a permanent order of protection against his brother-judge Frank Labuda.

Gary Rosa analyzed potential violation by Judge Frank Labuda of 10 criminal statutes:

Judge Rosa engages in an interesting analysis of whether judge's brother had exceedingly long arms (literally) to be able to reach out and grab the throttle cable in order to trigger the ATV upon which Judge Labuda was sitting to get of hand brake and in full gear.

Here is the overview of all criminal statutes violations of which Judge Rosa refused to find against judge Frank Labuda:

Name of statute
Section of the Penal Law

Elements of crimes in relevant subsections of Penal Law

Violation, misdemeanor or felony, and Maximum jail/prison term, if any
Resolution by Judge Rosa
Harassment in the 1st Degree
A person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury.  
B misdemeanor, 6 months in the local County jail
A single event does not constitute a course of conduct
There were two events, not one – Judge Labuda first allegedly “nicked” his brother on the way up his property, and then ran him over on the way down.  That would satisfy PL 240.25.
Harassment in the 2nd degree
Subsection 1: He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same - See more at:
A violation, up to 15 days in the local County jail
Rosa did not analyze application of this statute, but refused to believe that Judge Labuda acted with intent to harm his brother – without an explanation of such a finding

PL 240.26(1) was clearly satisfied, had Gary Rosa believed petitioner and his witnesses
Assault in the 2nd degree
1.  With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or
2. With intent to cause physical injury to another person, he causes such  injury to such  person or to a third person by means of a deadly weapon or a dangerous instrument; or
4.  He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
6. In the course of and in furtherance of the commission or attempted commission of a felony,  other than a felony defined in article one hundred thirty  which requires  corroboration for conviction,  or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of  the  participants.

Class D felony, 4 to 7 years in state prison, automatic disbarment without a hearing on collateral estoppel grounds for attorney Frank Labuda if found against him

Same as above

Assault in the 3rd degree

1.  With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or
Class A misdemeanor, up to 1 year in the local county jail

Same as above

Assault in the 3rd degree

2. He recklessly causes physical injury to another person

Same as above
Same as above + Rosa ruled that Judge Labuda’s behavior was not reckless “under the circumstances”, without an explanation for such finding

Assault in the 3rd degree

With criminal negligence, he causes  physical injury to  another person by means of a deadly weapon or a dangerous instrument
Same as above
Rosa refused to recognize judge Labuda’s criminal negligence in running over his brother, causing broken bones, and refused to recognize that Judge Labuda was drunk for “lack of evidence”

Here is where police Chief’s refusal to run alcohol tests on Judge Labuda helped the judge
Menacing in the 3rd degree

A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place  another person in fear  of death, imminent serious physical injury or physical injury.

Class B misdemeanor punishable by up to 6 months in local county jail
Rosa downplayed the judge’s brother’s fear by claiming that, had he been in fear of injury, he would not have stood in front of a running ATV
It is quite plausible for the petitioner to consider running over him by an ATV to be a death threat for the future, especially given the judge’s power and the extreme deference/bias of the police in investigation against the judge, but Rosa refused to acknowledge such a possibility

Menacing in the 2nd degree

He or she intentionally places or attempts to place another person
in reasonable fear of physical injury, serious physical injury or death
by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm

Class A misdemeanor punishable by a year in local county jail
Same as above
Same as above
Reckless endangerment in the 2nd degree

A person is guilty of reckless endangerment in the second degree when
he recklessly engages in conduct which creates a substantial  risk of serious physical injury to another person.
Class A misdemeanor punishable by up to a year in the local county jail

Rosa rejected, without an explanation, that Judge Labuda’s behavior was reckless “under the circumstances”.
There was no plausible explanation other than that judge Labuda intentionally took the ATV off gear (and that he was drunk), as to why an otherwise mechanically sound ATV would go beserk, get off hand brake and do that that mechanical mishap would happen exactly at the time when Judge Labuda’s brother with whom Judge Labuda was in a raging conflict, was standing in front of him
Reckless endangerment in the 1st degree

A person is guilty of reckless endangerment in the first degree when,
under circumstances evincing a depraved indifference to human life, he recklessly engages in  conduct which creates a grave risk of death to another person.
A class D felony punishable by 4 to 7 years in state prison and automatic disbarment for attorneys
Judge Rosa, having found that there was no reckless endangerment, did not go further to analyze whether judge Labuda acted with depraved indifference to human life
Same as above

I can see how judge Labuda's brother - and the public - may feel about the "verdict" of Judge Rosa facing a 71-year-old victim of a potentially drunk (the evidence was obviously intentionally not obtained - not through chemical tests, not through field tests and not through audio or video recorded interview right after the incident which could have shown whether the judge appeared to be under the influence of alcohol).

There is a lot of arrogance in this case, but that arrogance was definitely not of the victim.

There was arrogance of a judge who ran onto his brother's land over his prohibition, because he felt that, as a judge and local king, he is above the law and nobody can tell him what to do.

There was arrogance of the local police who refused to follow their own rules of investigation when a judge was accused of crimes that caused grievous injuries to his brother, refused to collect evidence that the judge was potentially drunk (audio, video, field sobriety tests or chemical tests), and grilled the victim 3 times longer than the judge.

And, there was a tremendous arrogance on behalf of Judge Gary Rosa who lectured to the injured elderly man upon whose property his brother-judge first trespassed and then injured him on his own property, that his stance of confronting his brother for trespassing was actually an act of "arrogance", "childishness" and not "acting his age".

The gall of Judge Gary Rosa blaming the victim for his grievous injuries clearly caused by the trespasser judge is mind-boggling.

So, what now?

I still believe that the case should be submitted to a grand jury, and that the New York State Attorney General, as a counsel representing Judge Labuda under Public Officers Law 17, should recuse, and a special prosecutor be appointed, from out of state if necessary.

The dismissal hinged on the findings of a single fact-finder, himself a judge and thus extremely deferential to his own "brother"-judge:

  • Rosa found that there was one "event" for purposes of "course of conduct" regarding the harassment charge; the grand jury and the trial jury may find otherwise;
  • Rosa found that he could not find that Judge Labuda intentionally ran over his brother; the grant jury and the trial jury may find otherwise;
  • Rosa found that he does not find "reckless endangerment" or even "criminal negligence" "under the circumstances" - without an explanation as to why, and under extremely suspicious circumstances; the grand jury and the trial jury may find otherwise;
  • Rosa found that there was "no evidence" presented that Judge Labuda was drunk; as much as the police made sure that no field sobriety tests were made, no breathalyzer or blood tests were made, and no audio or video-interview of judge Labuda right after the "incident" was conducted, documenting how he looked, the grand jury and the trial jury, relying on circumstantial evidence and witness testimony, can still find otherwise.
Whether this case will be submitted to the grand jury is a big question. 

If it isn't, if the NYS Attorney General decides that his own biased opinion as to whether to charge or not to charge his own client with a crime, and the "deferential" (biased) opinion of Judge Rosa may substitute for the decision of 23 grand jurors to charge or not to charge, and of 12 trial jurors to convict or not to convict Judge Labuda under the circumstances - the public will see a loud and clear message that Judge Labuda, and any other judges in New York state, are above the law if they commit even a violent crime against an elderly person that resulted in grievous injuries which will, probably, never heal completely considering the victim's age.

If Judge Labuda is not charged, will he now emerge as a victor from his paid administrative leave, and will continue to preside over criminal proceedings that he himself escaped because of his judicial status, teaching criminal defendants, their attorneys and the public what the real rule of law is like in the State of New York?

Or, will Labuda be quietly wisked into some kind of early resignation or retirement?

In any event - what a circus "adjudication" by Judge Gary Rosa was.

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