"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.

Saturday, January 10, 2015

Discipline of a judge - more for wrong reasons than for right ones, and more for upsetting a higher-ranking judge than for anything else

On December 30, 2014 the New York State Commission for Judicial Conduct entered an "admonishment" against Delhi Town Court Judge Richard Gumo.

There are several reasons for the admonishment, but after careful reading of the Determination (the formal charges are not published, and I will request a copy of them from the New York State Judicial Conduct Commission), several things strike me in the Decision.

I have always known Judge Gumo - and attorney Richard Gumo - as, at the very least, a courteous individual.  I have never seen him upset to the point of snapping the way he did in these proceedings, and I dealt with him as an attorney and a judge a lot.

I am not sure I understand why he wrote his letter to Judge Becker which I admit was inappropriate, but I turned Judge Becker into the Judicial Conduct Commission for a number of misconduct issues which was by far worse than what Judge Gumo was admonished for - and the Commission would not bat an eye on those complaints, it would simply toss them even though they were meticulously documented and misconduct issues researched and pointed out.

I understand that the main reason why Judge Gumo was disciplined at all is not because he did something inappropriate.  With due respect to Judge Gumo who was never rude to me personally, although he did engage in questionable conduct in one of my recent cases in front of him, Judge Gumo's behavior in People v. Groat was not exemplary.  

I will show below where Judge Gumo really slipped, but that was not why he was punished, because I see  judges engage in similar conduct left and right and not punished at all.

I believe that Judge Gumo was punished because Judge Becker was the one who turned him in.

Here is what happened.

A woman was charged for a violation (not a crime), Disorderly Conduct, in Walton Village Court where Judge Richard L. Gumo was a presiding justice along with his main seat in Delhi Town Court.

One of the witnesses of the prosecution was the daughter of the court's clerk.  The court clerk is not an attorney.

Even though a conviction for a violation such as Disorderly Conduct ("discon") does not create a criminal record, it provides for a fine and a maximum sentence of 15 days in the local County jail, so procedurally it is treated as a criminal proceedings, with a slight difference that there is no discovery and no jury trial.

The defendant Ms. Groat wanted to go to trial and she did go to trial.

In trials of violations, a jury trial was not allowed, so it had to be a "bench" trial, with only the judge presiding.  

Judge Gumo heard the testimony, including the testimony of the court clerk's daughter, without disclosing the relationship between the witness and the court clerk to the defendant or her attorney Mr. David Lapinel.

Not only the witness was the court clerk's daughter, but she was competing against the Defendant's daughter in horse shows, and allegations of Defendant's behavior during a horse show because of disqualification of her daughter was the basis of the proceedings.

Judge Gumo specifically found testimony of the court clerk's daughter "credible" and of the Defendant not credible.

Moreover, Judge Gumo indicated that he wanted to sentence her to jail, even though she had no prior criminal record.  That was very unusual.

The defense attorney requested an adjournment to provide character certifications to the court.

Judge Gumo allowed the adjournment.

By the sentencing, the defense attorney learnt about the prosecution witness being the court clerk's daughter and raised that issue with Judge Gumo at sentencing.

Judge Gumo sentenced the Defendant to the maximum term in jail for her charge, 15 days.

I can give Judge Gumo credit for at least giving Mr. Lapinel one day to apply for a stay, that was generous, and that is said without any irony.  A lot of judges would not have given the defense that one day.

Defendant appealed to the Delaware County Court and applied for a stay.

The appellate judge (from justice courts) Delaware County Judge Carl F. Becker imposed the stay and made a comment that it was really a "no brainer" for Judge Gumo to (1) disclose the relationship between the witness and the court clerk and (2) to sua sponte (on the court's own motion) transfer venue to another court.

Defendant also made a motion in the trial court before Judge Gumo to vacate the conviction because of non-disclosure about the court clerk's daughter.

Judge Gumo denied the motion and Defendant appealed again to the Delaware County Court, while the initial appeal of the conviction was still pending.

Judge Gumo then ordered the Defendant to report to jail for the execution of the 15-day sentence.

Defense attorney wrote to Judge Gumo indicating that the stay imposed by Judge Becker was still in effect for the pendency of the appeal.

Judge Gumo replied to defense attorney that the stay is not in effect since the Defendant failed to perfect the appeal within 120 days.

Defense attorney applied to appellate Judge Carl F. Becker for yet another stay, for the pendency of the appeal and all motions.  Judge Becker granted the stay.

On the day when the Defendant was ordered by Judge Gumo to report to jail, but the order was stayed by appellate Judge Becker, Judge Gumo (trial judge) wrote a letter to Judge Becker (appellate judge) by fax, by mail and hand-delivered.

In the letter Judge Gumo advocated for the prosecution pointing out evidence that was not in the record and pointing out that the appeal was precluded because it was perfected on time.  Both of those arguments were for the prosecution to make, if at all, but they were made by a trial judge instead.

It was apparent that the trial judge Gumo was disgruntled and took his anger out on the defendant because defendant embarrassed Judge Gumo by raising the issue of non-disclosure and because of Judge Becker's "no brainer" comment in his order of stay which was picked up by newspapers and which Judge Gumo read.

Judge Becker turned Judge Gumo into the Conduct Commission and recused from the case.

Judge Lambert was assigned to the appeal and affirmed Judge Gumo's decision claiming that there was no jurisdictional disqualification (under Judiciary Law 14), and otherwise it was Judge Gumo's own decision whether to recuse and transfer venue or not, and he did not abuse his discretion.

New York State Court of Appeals refused to hear the further appeal.

What the appellate courts and the Commission clearly "missed" is:

(1) credibility determination by Judge Gumo which were questionable, and a reversal was (in my opinion) in order - because Judge Gumo believed the court clerk's daughter over the defendant whose daughter competed with the court clerk's daughter in horse shows where the chargeable conduct of Defendant occurred. 

To me as an appellate attorney, there is a clear possibility that Judge Gumo assigned credibility based on the status of the witness's mother as the clerk of the court and not on normal neutral factors - and that was a reversible issue that, I understand, Judge Lambert overlooked or ignored to have this case go away, in order not to encourage defendants by reversals of convictions.

(2) retaliation by Judge Gumo against the defendant after she or rather her counsel raised issues of Judge Gumo's misconduct;

  • conviction of a person with no prior record to the maximum term of jail time AFTER her counsel raised the issue of non-disclosure at the sentencing;
  • stubborn attempts of Judge Gumo to put the defendant into jail to serve that 15-day sentence during the pendency of the appeal and during the stay of enforcement of the sentence, necessitating the defense counsel to apply for the second stay;
  • refusal to recognize his mistake and vacate the conviction and sentence;
  • letter to the appellate judge when the second stay was imposed containing appellate arguments on behalf of the prosecution, revealing evidence that was not in the record, also in favor of the prosecution, and advising the appellate court that the defendant turned down a plea bargain and asked to go to trial - which should not be a factor in determination of the judge at all.

Based on the letter of Judge Gumo, the possibility that he sentenced the Defendant to 15 days in jail in retaliation for her counsel raising Judge Gumo's non-disclosure becomes a certainty. 

Moreover, for the defendant in that particular case and for all other defendants appearing in front of Judge Gumo a question arises - does the judge consider in his decisions at bench trials that a defendant turned down the plea offer - as a negative factor against the defendant, both for conviction and sentencing purposes?

Judge Gumo practically admitted in his letter to Judge Becker (which was not warranted or allowed by any procedural rules) that he considers defendant's rejection of a plea offer an important factor on appeal.  That means that judge Gumo considers rejection by a criminal defendant of a plea offer a factor at all - and that is a reversible error, so if I were an appellate judge, I would have erred on the side of caution and fairness and would have reversed the conviction and sentence imposed under such circumstances.

But, what comes next is completely incredible.

The Commission for Judicial Conduct which tosses complaints of far worse judicial misconduct specifically because it was "within judicial discretion", sustained Judge Gumo's "discretionary" decision that Judge Lambert affirmed on appeal, as misconduct, and stated that there is no problem or inconsistencies in such a decision.

Is it fair that some discipline was in order for what Judge Gumo did, in my opinion?

Yes, it was, even i the admonishment was imposed not exactly for what it was supposed to be imposed, the Commission missed the retaliation against the Defendant and the issue how Judge Gumo decided issues of credibility - possibly, by taking into consideration status of the witness's mother as the court clerk, and taking into consideration that the Defendant turned down a plea offer.

But, if Judge Gumo was to be disciplined, Judge Becker and other judges that people complain about for worse misconduct, should be disciplined, too.

In this case, a County Judge (Becker) turned in the local Town Justice (Gumo, who is also a practicing attorney, practicing in front of Becker) for much less than what Judge Becker has been turned in before, yet Judge Becker always escapes with no discipline and Judge Gumo is being disciplined on Judge Becker's complaint.

Is THAT fair?  Definitely not.

By the way, as far as inappropriate letters of judges are concerned, I know of a much much worse case concerning Judge Becker.

A pro se party in Family Court sued Judge Becker in federal court, siting his conflicts of interest and misconduct in a Family Court case.

The pro se party then goes around the area and distributes copies of his lawsuit to individuals, businesses and governmental organizations.

One of the copy the pro se litigant delivered, as I understand, to the County office of the Republican Party.

That was during Judge Becker's re-election campaign of 2012.

Judge Becker does the following:

(1) he recuses from the individual's Family Court case;

(2) after recusal, not having any authority any more to do anything in the case or even have access to the record, Judge Becker writes a letter on the court letterhead, to the attorneys who participate in the family court case of the individual, and tells them about the lawsuit, about distribution of the lawsuit and that Judge Becker (no longer any authority any more in the recused case) notifies the attorneys of his opinion that the filing and distributing of the lawsuit are evidence of the individual parental abilities and should be considered by the court.

Judge Becker was never disciplined for writing that outrageous letter, violating multiple rules off ethics.

Yet, when he (admittedly correctly) turned in Judge Gumo, the Commission jumps to serve Judge Becker's wishes.

And that's what is one of the saddest issues in the State of New York - selective enforcement of judicial discipline against lower court judges who pissed of prosecution or the higher-court judges and complete non-enforcement of any discipline against higher-court judges no matter what they do.

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