To me, that was no question that it was unlawful for a judge to decide on appeal a case where he acted in his judicial capacity in the court below.
Apparently, Judge Mulvey is not alone in doing what he did.
A case has been argued on September 6, 2017 in the highest court of the State of New York - New York State Court of Appeals, whether it was a violation of due process for a judge not to recuse himself from reviewing an appeal from a judgment of criminal conviction that the same judge made as a trial judge.
In other words, the same judge was the trial judge in a non-jury trial in a criminal case, and the appellate judge from his own decision at the trial level.
Here is the digest of the case published by the New York State Court of Appeals.
The appellate defense #attorneyDanielleNeroniReilly argued that failure of the trial judge to recuse from reviewing the appeal from his own decision is a violation of due process.
She referred to a federal statute, 28 U.S.C. 47, enacted by the US Congress in 1948, nearly 70 years ago, which says:
"No judge shall hear or determine an appeal from the decision of a case or issue tried by him."
Apparently, the U.S. Congress enacted that statute based on due process concerns involved when a judge would review criticism of his own decision at the trial level.
The U.S. Congress, 70 years ago, considered that the possibility of bias in such a situation is impermissible.
Yet, in New York there are no such prohibitions by statute - even there should be, as a matter of federal constitutional due process of law, which is what is argued in People v Novak.
The case was already orally argued, and a decision is pending.
It is a great victory for the defense attorney that she even got the case before the Court of Appeals that casually rejects cases with "insubstantial constitutional questions", even though the New York State Constitution and a specific New York State statute mandates acceptance of all constitutional question cases for review.
A close-to-retirement (and now retired) judge of the court actually argued, in a vigorous dissent, that what the court is doing in rejecting constitutional question cases is not proper or legal.
2010 NY Int. 24
In the Matter of Alan Kachalsky, Appellant,
Susan Cacace, & c., Respondent.
Appeal dismissed without costs, by the Court sua sponte,
upon the ground that no substantial
constitutional question is directly
involved. Chief Judge Lippman and
Judges Ciparick, Graffeo, Read,
Pigott and Jones concur. Judge
Smith dissents and votes to retain
jurisdiction in an opinion.
SMITH, J. (dissenting):
The mere fact that the New York State Court of Appeals, the court that rejects nearly all constitutional question as of right appeals, and especially those pertaining to recusal of judges, as a matter of their own (illegal) policy, even took this case, means that the court did accept that there is at least a POTENTIAL constitutional question in the case.
Yet, at least from what I can see reported in New York State Journal, judges of the New York State Court of Appeals tried to water down the importance of the federal constitutional question by confronting the appellate attorney with a question which the attorney - judging by her answer - perceived as threatening to herself and started to hedge, which, in my opinion, hurt her position.
As New York State Law Journal reports,
"Associate Judge of the Court of Appeals Jenny Rivera asked Reilly, who has her own law office in Albany, if her argument on Sypniewski not recusing himself was based on the appearance of bias, or based on actual bias."
The question, while not illegitimate, was threatening, if you take into consideration that that particular attorney's father and stepmother's law licenses were revoked for criticism of judges in court - whatever the official reasons were given in the actual orders of disbarment of her father and suspension of her stepmother.
And, it is a matter of public record that the same Judge Jenny Rivera participated in twice-rejecting the constitutional question appeal of the stepmother as to: whether it was a 1st Amendment and due process violation for a judge to be allowed to punish an attorney for the contents of a motion to recuse, and for the disciplinary authorities to allow to pull the attorney's law license without a hearing because of such a vengeful sanction.
So, it is the law in New York that your law license may be pulled because you legitimately make a motion to recuse a judge, the judge will then sanctions you in revenge, and that's it, no further hearings, your law license will be pulled just like that.
And, presumably knowing the law of attorney discipline as to criticism of judges, attorney Reilly, a mother of young children, answered that question, a question of intimidation to any attorney in New York.
A non-intimidated attorney would answer this question - BOTH.
BOTH appearance of impropriety AND the potential for actual bias are a concern when a trial judge reviews his own trial decision on appeal - because the litigant cannot get into the head of the judge who would be deciding an appeal (and thus criticism) of his own decision in the court below, but, knowing "human frailties", may legitimately suspect that the judge would not like criticism of his own decision and will affirm his own decision simply because he is partial to himself.
Yet, by giving such an honest answer, an attorney can subject herself to the potential ostracism in court by the same supposedly "fair" judge, before whom she, no doubt, continues to practice - so an attorney under such circumstances may have a personal reason to hedge.
Accusing a judge of actual bias in New York, even on good record and with good grounds, has become a suspension offense, and the attorney knew it, based on what happened to two of her own family members.
So, she hedged and answered this:
"Appearance of impropriety."
Now that would have been enough of an answer to that question.
But, the attorney who has young children to support, was apparently intimidated by the question and did not want to part with her career by even having a shadow of a doubt that she may accuse a judge of actual bias or even imply it, so she went on.
"Judge Sypniewski is a fair judge through and through. There's no indication that he had an actual bias in this case," Reilly said. "But that's not what I'm asking the court to determine. I think the court has to determine that Brian Novak went before [Sypniewski] and then had basically no appellate review because no one was there to review his decision on the law."
Now, why an attorney would say "Judge Sypniewski is a fair judge through and through. There's no indication that he had an actual bias in this case" while contending that appellate review by that same Judge Sypniewski amounted to now appellate review at all - specifically because of a potential of bias in such a case?
And why should an attorney, while putting in a question of LEGAL THEORY, whether a judge MAY, as a matter of due process of law, be allowed to review an appeal from his own decision, consider it necessary to shoot her own argument in the foot (to the detriment of her client) by claiming that:
- she actually knows that particular judge; and
- that she actually knows that particular judge to be "fair through and through".
And, the question is whether the client allowed attorney Reilly to concede these significant points on the appeal, that the judge whose decision to (1) decide an appeal from his own judgment; and (2) decide it (surprise, surprise!) by affirming his own judgment against the defendant had no indication of actual bias, and that the judge was "fair through and through".
I highly doubt that any client would knowingly shoot his own appeal that he paid for in the foot this way.
- suspended for making a motion to recuse a judge in a criminal case,
- where the disciplining court (which was also an appellate court in a criminal case) actually taught the judge at the trial level how to sanction him correctly so that the sanction would stick:
- The attorney makes a motion to recuse a judge from a criminal case, on the following grounds:
- criminal conspiracy to predetermine cases;
- committing federal mail fraud;
- regularly engaging in impermissible ex parte communications;
- engaging in a conspiracy to tamper with court files
- The judge who was accused of all those illegal activities, sat in judgment of the motion to recuse, refused to recuse, and sanctioned the attorney who dared to confront the judge with such a criticism, for "frivolous conduct".
- Of course, the rules of criminal conduct do not apply in criminal proceedings, so the sanction was illegitimate. But, the Appellate Division (which is also the one-stop no-appeal disciplinary court for attorneys in that jurisdiction) did not restrict itself to ruling on appeal - that the Appellant was correct, that the judge was incorrect, and that sanctions were reversed. No. The Appellate Division went outside of its limited authority on appeal and actually TAUGHT the judge in question that, if he wants to sanction the attorney, he needs to do it under Judiciary Law 750 and 751 and, instead of reversing and dismissing the sanctions and calling it a day, returned the case to the court after they taught the judge who was offended by a motion to recuse how to act as a judge, jury, prosecutor and unsworn witness in the same case in sanctioning the attorney "properly" for making that motion to recuse. The "heroes" who decided that case were: judges Crew III, Mugglin, Lahtinen and Kane. Judges in New York, by New York State Constitution, are prohibited to practice law. Giving legal advice to a judge on an issue that is irrelevant to an appeal whether it was legitimate to sanction attorney Aretakis for frivolous conduct, was illegal for judges Crew III, Mugglin, Lahtinen and Kane. But, judges Rose, Lahtinen, Kane, Kavanagh and Stein did not consider it a constitutional problem for his disciplinary case, and accepted the illegal sanctions as legitimate, and as not entitling attorney Aretakis to even a hearing before his law license and livelihood was suspended. Of course, judges Lahtinen and Kane would not criticize judges Lahtinen and Kane for their own illegal activities - same as judge #MatthewSypniewski in People v Novak would change his mind as to validity of his own verdict of conviction (and you need to have a lobotomy to believe that actual bias was not involved here). Note that part of the panel unlawfully yanking the license of criminal defense attorney John Aretakis for making a motion to recuse a judge was Judge Leslie Stein whose ascension to the New York State Court of Appeals was a quid pro quo by the corrupt NYS Governor Andrew Cuomo for her decision on an important case in favor of Cuomo's subordinate DEC Commissioner as a response to Cuomo's nomination of Leslie Stein to the Court of Appeals, will be one of the panel of judges in deciding People v Novak as to propriety of a judge to be allowed to punish a litigant who dared to appeal the judge's decision. Judge Stein is apparently the best expert on the particular topic of punishing litigants for criticism of judges, so we should not hold our collective breaths as to what her decision is going to be in People v Novak. And, attorney Reilly was arguing in front of Judge Stein, who took away livelihood of attorney Aretakis because he dared to claim actual bias and misconduct of a criminal trial judge - thus, apparently, attorney Reilly hedged and, instead of recognizing that actual bias may have been involved, shot her client's case in the foot and conceded on behalf of her client that (1) the judge was "fair through and through" in general, and (2) there is no indication of the judge being biased in this particular case.
As to the supposed "fairness" of any judge to review an appeal from his own decision.
Imagine that your trial attorney does an appeal from your conviction.
What will be the incentive of a trial attorney to shoot himself in the foot and raise the issue of his own ineffective assistance of counsel that has led to your conviction.
Similarly, if a judge whose career advancement and/or reelection and additional perks to his judicial career (speaking offers, teaching offers, overseas travel offers) depend on his squeaky clean reputation, where the less reversals are the better, how likely it will be that the judge will shoot himself in the foot, calmly and dispassionately review arguments against himself - possibly, raising issues of judicial bias and misconduct - and reverses himself?